[This Blog is part 2 of the article authored by Nishant Tripathi, a postgraduate student at West Bengal National University of Juridical Science]

The first part can be found here: Non- Disclosure of Non-relied Evidence: An Obstacle in the Path of Fair Trial [Part 1 of 2]

Judicial Presumption on Withholding of Evidence

Although statutorily, the prosecutor has been overpowered to control the evidence during criminal trials, the judiciary has tried to safeguard the accused from being a victim of partisan prosecution through a string of judgements. In Darya Singh v State of Punjab, the apex court observed that the prosecution need not hold back the eye witness just because it goes against the prosecution case. The court further noted that the prosecutor’s selection of witnesses must be fair and honest and must not suppress any inconvenient witness as evidence. The court will draw an adverse inference if the prosecution deliberately withholds any material eye witness. Also the court in the “end of justice” would examine such witnesses. Karnesh Kumar Singh v State of Uttar Pradesh upheld and reinstated the same viewpoint. The court in Karnesh Kumar Singh also observed that the duty of the prosecutor is to reach a just conclusion, and witnessing withholding would cast serious doubt on the prosecution case.

Furthermore, in Gargi v State of Haryana, the court held that there is a difference between withholding of relevant witnesses and non-examination of relevant witnesses by police during the investigation. In the former case only, the court would presume adverse inference in the prosecution case. The most recent case where the apex court has discussed extensively the disclosure of evidence for a fair trial is Siddharth Vashist @Manu Sharma v State of NCT. In Manu Sharma’s case, the judiciary examined the UK model of the prosecution system and appreciated the disclosure rule of evidence enshrined in British common law. Still, at the same time, they acknowledged a stark difference between the role of the Prosecutor in disclosure in the Indian criminal system and the British criminal system despite falling categorically under the umbrella of the adversarial system. However, the court acknowledged that the accused has limited rights in Indian criminal prosecution, yet the accused’s liberty can’t be intervened except through due process of law. Furthermore, the apex court has recognized and granted the right of full disclosure of statements and witnesses, which would support his case, and to enforce the right, the accused can move the application in the court. The court interpreted the phrase ‘fair disclosure’ inclusive of the prosecution supplying all documents and witnesses, whether he relies on it or not during the trial.

Disclosure Practise In UK: A lesson to be learnt

As the apex court in the Manu Sharma case admired the disclosure of evidence practice, the author had thrown some light on the “practise of disclosure” as evident in the UK and suggested the principle or jurisprudence of disclosure, which can be adopted as reformative steps in the Indian prosecution system. The Prosecutor in the UK has been designated as the “Minister of Justice” who must ensure a fair trial and seek justice instead of being hell-bent on the conviction of the accused. During the 16^th century, the common law practice in the UK allowed the Prosecutor to “ambush” the trial, which means the accused was not aware of the prosecution witness until he was confronted in the courtroom at trial. However, in R v Pook, Lord Cockburn CJ, while dealing in the murder trial, ordered the prosecution to disclose to the defence all the information that was in the possession of the police. The 20th century witnessed the “Old Boys Act” approach, which Traynor coined in 1964. The term is the reflection of informal practice adopted in England where the defence counsel was termed as Old Boys and was allowed to have a pre-trial inspection of prosecution information with regard to the accused. As there was no statutory backing for this practice, this was based on the individualistic choice of the prosecutor. Therefore, the practice was very inconsistent and varied with respect to the gravity of the case. However, it paved the way for the Attorney General Guidelines of 1981, where the concept of disclosure was introduced for the first time, and now the prosecution has to disclose limited un-relied documents to the defence. The principle of disclosure wasn’t limited to its expression in legislation papers but also became part of notable judgments such as R v Wards, where the court provided that the prosecution is not limited to disclosing the “relevant evidence of help to the accused” instead of scope of disclosure widened to include all evidence collected during the investigation irrespective prosecutor relied on or not. Due to the misuse of the disclosure principle by the defence, there was chaos, and hence, R v Keane provided a certain guideline about the unused material which can be disclosed. The material evidence would be

“Where the prosecution refused, on the grounds of public interest immunity, to disclose relevant material to the defence, the court had to balance the weight of public interest in non-disclosure against the importance of the documents to the defence…Material documents included those which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution proposed to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue.”

Finally, the statutory recognition of the disclosure obligation was provided in legislation known as the Criminal Procedure and Investigation Act 1996.CPIA provided three forms of disclosure. In the first stage, the primary disclosure by the prosecution would relate to any ‘non-sensitive’ unused material which undermined the prosecution case. In the second stage, the defence would prepare a ‘defence statement’ consisting of a disputed point in the prosecution case. Then, in the third and final stage, there is secondary disclosure by the prosecution, where any material which assists the defence in the light of the defence statement is provided to the defence.

Conclusion

Evidence “if one man’s tool than another man’s weapon”. However, the Indian criminal justice system provides the prosecutor with the sole watchman of evidence, which chooses to use it as its own tool and also decides to hand over the defence as its weapon. In most cases, the prosecutor never lets the defence use the evidence as a weapon. The disclosure of evidence in India is an evolving concept which totally favours the prosecution to ambush the trial. The limited disclosure of un-relied evidence to the defence is permissible only after the stage of the framing charge, and if the prosecutor intentionally fails to examine any relevant document or witness, then the court draws adverse inferences. This is the most miniature mechanism provided by the judiciary to promote the disclosure of all evidence or bind the prosecution to avoid withholding material evidence. We need to catch up with the British when it comes to development the jurisprudence of un-relied evidence. This is the situation, despite the fact that the system of prosecution was introduced in India by the British. The author acknowledged that CPIA and Keane’s judgement in British had not created the desired difference as expected. The pragmatic situation prevalent in the British prosecution system has perfectly been summarised by the barrister as  “fox has been in charge of the henhouse”. But the author still argues that the Indian criminal justice system can adopt the legislation of CPIA and guidelines of Keane’s judgement as a starting point and later on can modify or develop it as per its own set of challenges.