P. PONNUSAMY versus THE STATE OF TAMIL NADU on 7 November 2022

[2022] 15 S.C.R. 265

P. PONNUSAMY

v.

THE STATE OF TAMIL NADU

(Criminal Appeal No. 1926 of 2022)

NOVEMBER 07, 2022

[UDAY UMESH LALIT CJI, S. RAVINDRA BHAT ANDBELA M. TRIVEDI, JJ.]

Penal Code, 1860 – ss. 120B, 109, 341, 302 & 34 – DraftRules of Criminal Practice, 2020 – Right of accused to demanddocuments – Appellant along with other eight accused wereconvicted and sentenced by Sessions Court for the offencespunishable u/s 120B, 109, 341, 302 read with 34 of IPC – Some ofthem were sentenced to death penalty and some with lifeimprisonment – The Sessions Court had referred its judgment to theHigh Court for confirmation of the death penalty – Adjournmentswere sought several times by the parties – During the course ofhearing before the High Court, appellant address a letter toInspector, asking him to produce certain documents, which wererequired for fair adjudication of their case in the light of the SupremeCourt’s decision Manoj and others Vs. State of Madhya Pradesh – Inthe meanwhile, the appellant approached Supreme Court – Held:(Per Bela M. Trivedi,J.)The death Reference cases referred by theSessions Courts to the High Court have to be given utmost priorityand should be heard and completed by the High Court asexpeditiously as possible and preferably within six months – ‘DraftRules of Criminal Practice 2020’ were the draft guidelines weregiven by Supreme Court to all the High Courts and the StateGovernments and Union of India – However, neither the High Courtsnor the State Governments appear to have taken any steps pursuantto the said directions – As a result thereof, the said Draft Ruleshave neither been adopted by the respective High Courts/StateGovernments nor have come into force – Unless they have beenadopted, the same could not have been pressed into service by anyparty to a criminal proceeding – The attempt made on behalf of theappellant- accused and the other accused to delay the hearing,under the guise that they had demanded certain documents fromthe Investigating Officer was absolutely reprehensible – (Per

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AS.Ravindra Bhat J. (for Uday Umesh Lalit, CJI and himself)) : TheDraft Rules framed, therefore, were a product of a thoroughconsultative exercise undertaken to remedy asymmetries caused bythe lack of uniformity in Rules across States, which could hamperappreciation of evidence, and in turn delay proceedings, especiallyat the appellate stage – Some High Courts or governments of theBStates/ Union Territories have failed to comply with Supreme Court’sorder and are delayed in adopting the Draft Rules or amending theconcerned police/practice manuals, cannot prejudice the right ofan accused to receive the list of the statements – To say that thejudgment in Manoj in relation to this, and the right of the accused toCreceive the list of documents, material, etc. would only apply afterthe Draft Rules are adopted would lead to an anomalous situationwhere the right of the accused in one State, prejudicially differsfrom that afforded to an accused, in another.

Dismissing the appeal, the CourtDHELD: 1. Per Bela M. Trivedi, J.:Despite such assurancehaving been given by the senior advocate and all other advocatesincluding other senior advocates appearing for the otherappellants-accused to the High Court to proceed with the hearingof the Reference case and the appeals, the appellant rushed toEthis Court to hamper the hearing fixed before the High Court on17.10.2022. Such a dilatory tactics adopted by the parties andtheir advocates and thereby deflecting the course of justice inthe cases like the present one, where some of the appellant-accused are facing the death penalty and some sentence of lifeimprisonment are strongly deprecated. It is needless to say thatFthe death Reference cases referred by the Sessions Courts tothe High Court have to be given utmost priority and should beheard and completed by the High Court as expeditiously aspossible and preferably within six months. However, as transpiringfrom the observations made by the High Court in the impugnedGorder, which have remained unchallenged before us, it was onlybecause of the non-cooperation on behalf of the counselsappearing for the appellant-accused, the High Court was not ableto hear the Reference case. The court may not have to remindthe senior advocates of their duties to assist the courts for the H

cause of justice, and not to indulge into dilatory tactics and hamperthe cause of justice. [Para 6][274-A-E]

2. It clearly emerges that this Court in the suo motoproceedings had directed all the High Courts to take expeditioussteps to incorporate the said Draft Rules as part of the Rulesgoverning criminal trials and to ensure that the existing rules,notifications, orders and practice are suitably modified andpromulgated, wherever necessary through the official gazettewithin six months from the date of the said order. The court hadalso directed the State Governments as well as the Union of Indiato carry out consequential amendments to the police and othermanuals. However, neither the High Courts nor the StateGovernments appear to have taken any steps pursuant to thesaid directions. As a result thereof, the said Draft Rules haveneither been adopted by the respective High Courts/StateGovernments nor have come into force. Unless and until the DraftRules as suggested by the court in the suo moto proceedings areincorporated by the High Courts in the Rules governing criminaltrials and unless the consequential amendments are made by theState Governments and the Union of India in the Police and otherManuals, the same could not have been pressed into service byany party to a criminal proceeding. The observations made inpara 179 of the judgement in case of Manoj and others Vs. State ofMadhya Pradesh were in the context of the said directions givenby the court in the suo moto proceedings and therefore wererequired to be read in conjunction with the earlier paras 177 and178 of the said judgement. Meaning thereby, the prosecution isexpected to comply with the Draft Rule no. 4 pertaining to thesupply of documents, as and when the said set of Draft Rules areadopted by the High Courts and State Governments, giving thema statutory force. May it be noted that in any case, the Draft Ruleno. 4 with regard to the supply of documents under Sections 173,207 and 208 Cr.P.C. is part of the Chapter I of the said DraftRules, to be followed during the course of investigation and beforethe commencement of the trial. The said Draft Rule no.4 as andwhen brought into force after following the due process of lawcould be pressed into service by the accused only during thecourse of investigation and during the course of trial, and not at AB

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Athe appellate stage before the High Court or the Supreme Court.In the aforesaid premises, the attempt made on behalf of theappellant- accused and the other accused to delay the hearing ofthe appeals and the death Reference case pending before theHigh Court, under the guise that they had demanded certaindocuments from the Investigating Officer was absolutelyBreprehensible. [Paras 10-12][277-D-H; 278-A-E]

Manoj & Ors. v. State of Madhya Pradesh, Judgmentdated 20.05.2022 in Criminal Appeal Nos. 248-250 of2015; 2022 SCC OnLine SC 677; In re. v. State ofAndhra Pradesh and Ors., (2021) 10 SCC 598 – reliedCon.

Case Law Reference

(2021) 10 SCC 598

relied onPara 9

Per S. Ravindra Bhat, J. [for U. U. Lalit, CJI and himself]D

1. The Draft Rules framed, therefore, were a product of athorough consultative exerciseundertaken to remedyasymmetries caused by the lack of uniformity in Rules acrossStates, which could hamper appreciation of evidence, and in turndelay proceedings, especially at the appellate stage. RecognitionEof the need to streamline trials or mitigate delays, however,cannot come at the cost of the accused’s right to fair trial. Theframework that emerges (by reading Section 173, 207, 208 andDraft Rule 4) is that based on the list of statements, documents,etc. received at the commencement of the trial, the accused canFseek appropriate orders under Section 91 of the CrPC, whereinthe magistrate on application of judicial mind, may decide onwhether it ought to be called for. Additionally, by virtue of Section391 of the CrPC, the appellate court, if it deems necessary, maytake further evidence (or direct it be taken by a magistrate orcourt of sessions) upon recording reasoning. This safeguards theGright of the accused in a situation where concern has been raisedregarding evidence or material in possession of the prosecution,that had not been furnished, but was material to the trial anddisposal of the case. [Paras 10 & 14][282-A-B; 284-D-F]

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2. That some High Courts or governments of the States/Union Territories have failed to comply with this court’s orderand are delayed in adopting the Draft Rules or amending theconcerned police/practice manuals, cannot prejudice the right ofan accused (to receive this list of the statements, documents,material, etc. in the possession of the prosecution), which hasunequivocally been recognized by this court in its final order ofthe suo-moto proceedings (paragraph 11, extracted above), itself.Further, to say that the judgment in Manoj in relation to this, andthe right of the accused to receive the said list of documents,–material, etc. would only apply after the draft rules are adopted would lead to an anomalous situation where the right of theaccused in one state, prejudicially differs from that afforded to anaccused, in another. In these circumstances, the proper andsuitable interpretation of the disclosure requirement in Manojwould be that:

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(a) It applies at the trial stage, after the charges areframed.

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(b) The court is required to give one opportunity ofdisclosure, and the accused may choose to avail ofthe facility at that stage.

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(c) In case documents are sought, the trial court shouldexercise its discretion, having regard to the rule ofrelevance in the context of the accused’s right ofdefence. If the document or material is relevant anddoes not merely have remote bearing to the defence,its production may be directed. This opportunitycannot be sought repeatedly – the trial court candecline to issue orders, if it feels that the attempt isto delay.

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(d) At the appellate stage, the rights of the accused areto be worked out within the parameters of SectionG391 CrPC.

That the accused, has a right to fair trial, was not in doubt;but what is reiterated is that this right is manifested in the fairdisclosure requirement elaborated above. While the concern ofdelay in conclusion of trial undoubtedly weighs heavily in the mind H

Aof the judge, it cannot entail compromise of the right of the accusedto fair investigation and trial. [Paras 16-18][285-B-G; 286-A-C]

Manoj & Ors. v. State of Madhya Pradesh, Judgmentdated 20.05.2022 in Criminal Appeal Nos. 248-250 of2015; 2022 SCC OnLine SC 677; In re. v. State ofBAndhra Pradesh and Ors., (2021) 10 SCC 598 – reliedon.

Siddharth Vasisht @ Manu Sharma v. State of NCT Delhi(2010) 6 SCC 1 : [2010] 4 SCR 103; Manjeet SinghKhera v. State of Maharashtra, (2013) 9 SCC 276 :C[2013] 8 SCR 511; P. Gopalkrishnan v. State of Kerala(2020) 9 SCC 161 : [2019] 17 SCR 422; V.K. Sasikalav. State (2012) 9 SCC 771 : [2012] 10 SCR 641 –referred to.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1926 of 2022.

From the Judgment and Order dated 14.09.2022 of the High CourtFof Judicature at Madras in R.T. No.2 of 2021.

Gopal Sankaranarayanan, Sr. Adv., Yug Mohit Chaudhury, PrabuRamasubramanian, Raghunatha Sethupathy B, Karupusamy Pandian,Bharathimohan M., Ms. Priya R., Alagu Raja Bharathi B., Avinash, Ms.Vartika, Shriram, Siddharth Sharma, Advs. for the Appellant.

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V. Giri, N. R. Elango, Sr. Advs., Dr. Joseph Aristotle S., Ms. NupurSharma, Shobhit Dwivedi, Sanjeev Kr. Mahara, Ms. Vaidehi Rastogi,Ms. Ankita Gupta, Vivek Singh, S. Agilesh Kumar, Antariksh Singh,Purnendu Bajpai, Eish Sharan, Anupam Mishra, Advs. for the Respondent.

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The Judgments* of the Court were delivered by BELA M. TRIVEDI, J.

1) Leave granted.

2) The appellant (original accused no. 1) has filed the presentappeal being aggrieved by the impugned order dated 14.09.2022 passedby the High Court of Judicature at Madrasin RT No. 02 of 2021, wherebythe High Court had directed the learned Counsels appearing for theparties to proceed with the hearing of the matter on 17.10.2022. Therelevant part of the impugned order reads as under: - “17. In our opinion, this communication is not at all appreciableand we strongly record our disapproval on such tactics adoptedby the learned counsel on record. All the papers relied upon bythe prosecution were placed by the Investigating Officer beforethe trial court and copies were furnished to the accused underSection 207 Cr.P.C. The same have got translated as legal evidenceduring trial and the case of the accused should have to stand orfall based on that unless additional evidence is sought to be taken.

18. Mrs. Anjana Prakash, learned Senior Counsel requestedfervently that she has discussed with all the counsel including theSenior Counsel, who have been engaged by various counsel onrecord and sought final adjournment to 17.10.2022, on which date,all the counsel assured that they would not seek any adjournment.

19. This Court explain to the learned counsel that the case of thepersons, who have been sentenced to death, has to be completedwithin six months, whereas, in this case, for the last one year,there has not been any progress on account of non-cooperationof the accused. Under Section 386 Cr.P.C., if the counsel for theappellant or the Public Prosecutor does not appear, it is open tothis Court to peruse the records and proceed with the case. Whenwe explained to Mrs. Anjana Prakash that the Public Prosecutormay be permitted to begin the case at least and that she mayreply to his submissions later, she requested us not to do that, as itwould be easier if both sides’ submissions are heard continuously.She repeatedly assured us that no one would seek adjournmenton 17.10.2022. Hence, more out of courtesy and respect for Mrs.

*Ed. Note : There were two judgments in the matter- one judgment rendered byHon’ble Ms. Justice Bela M. Trivedi; and the other judgment rendered by Hon’bleMr. Justice S. Ravindra Bhat for himself and on behalf of Shri Uday Umesh Lalit,Hon’ble Chief Justice of India.

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AAnjana Prakash, Senior Advocate, the case is adjourned to17.10.2022.”

3) The appellant instead of appearing before the High Court on17.10.2022, rushed to this Court challenging the said order. This Courton 17.10.2022 passed the following order:-B

“Mr. Gopal Sankaranarayanan, learned Senior Advocatesubmitsthat:

a) This Court in its decision dated 22.05.2022 passed in Manoj &Others v. State of Madhya Pradesh, reported in 2022 (9) SCALEC67, dealt with certainissues from paragraph 170 of the decisionwhereafter conclusions were drawn in paragraph 179.

b) Relying on these observations, a letter was writtenon behalf ofthe accused on 05.09.2022 seekingdocuments which were in thepossession of theinvestigating machinery.

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c) Without deciding the issues raised in said letter,the High Courthas proceeded to fix the matter forhearing in death confirmationcase.

We issue notice on this petition, returnable on 20.10.2022and directEthat the matter be placed before the same Bench which dealtwith and rendered the decision in Manoj & Others (supra).

Dasti service, in addition, is permitted.

Liberty is granted to serve the learned Standing Counsel fortheState.F

Since the matter is posted before the High Court for final disposal,at this stage, we do not deem it appropriate to pass any interimdirections except to request the High Court not to pronounce thefinal order in case the matter is taken up for final disposal.”

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4) In the present Appeal, we need not go deep into the merits ofthe Appeals or the Reference case, which are pending before the HighCourt. Suffice it to say that the appellant along with other eight accusedwere convicted and sentenced by the City Civil and Sessions Court,Chennai in Sessions Case No. 348/2015 for the offences punishableHunder Section 120-B, 109, 341, 302 read with section 34 of IPC. Some of the accused were sentenced to death penalty and some with lifeimprisonment and other sentences. The Sessions Court had referred itsjudgement and order to the High Court for confirmation of the deathpenalty awarded to some of the accused under Section 366 Cr.P.C.,which was registered as RT No. 02 of 2021. The accused also had filedseparate nine appeals before the High Court challenging the judgementand order passed by the Sessions Court in the said sessions case. All thesaid appeals were directed to be tagged with RT No. 02 of 2021 by theHigh Court.

5) As transpiring from the impugned order, the High Court afterascertaining the convenience of all the advocates appearing for the partieshad fixed the date for final hearing on 15.06.2022 vide the order dated27.04.2022. Thereafter, the roster was changed and the matters werelisted on 06.09.2022 on which date the hearing was adjourned at therequest made by the learned counsel for the appellant-accused andtherefore, it was again adjourned to 14.09.2022 for final disposal. On14.09.2022, though the State Public Prosecutor was ready to argue, oneof the learned senior advocates from Delhi appeared before the HighCourt and requested the High Court to adjourn the hearing. At that time,the State Public Prosecutor drew the attention of the High Court to aletter dated 05.09.2022 sent by Mr. G. Sriram, learned counsel appearingfor the present appellant (accused no. 1) P. Ponnusamy, the accused no.02 Mary Pushpam and the accused no. 03 Basil, addressed to theInspector (Law and Order) E-4 Abiramapuram Police Station, Chennai,asking him to produce certain documents, stating therein inter-alia thatthe said documents were required for fair adjudication of their case, inthe light of the Supreme Court’s decision (in case of Manoj and othersVs. State of Madhya Pradesh, Criminal Appeal No. 248-250 of 2015decided on 20[th ]May, 2022). The said letter was placed on record by theState Public Prosecutor. On the said date i.e., 14.09.2022, the learnedsenior advocate who had come from Delhi assured the court that shehad discussed with all the counsels who were appearing for the appellantsand that all had assured her that they would proceed with the hearing on17.10.2022. The High Court appraised her that the case pertained to thesentence of death penalty, which had to be completed within six monthsand that for the last one year there was no progress in the case onaccount of non-cooperation of the accused. However, she repeatedlyassured the court that no one would seek adjournment on 17.10.2022, AB

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Aand therefore the High Court out of sheer courtesy and respect for thesenior advocate adjourned the case to 17.10.2022.

6) Despite such assurance having been given by the senioradvocate and all other advocates including other senior advocatesappearing for the other appellants-accused to the High Court to proceedBwith the hearing of the Reference case and the appeals, the appellantrushed to this Court to hamper the hearing fixed before the High Courton 17.10.2022. Such a dilatory tactics adopted by the parties and theiradvocates and thereby deflecting the course of justice in the cases likethe present one, where some of the appellant-accused are facing theCdeath penalty and some sentence of life imprisonment are stronglydeprecated. It is needless to say that the death Reference cases referredby the Sessions Courts to the High Court have to be given utmost priorityand should be heard and completed by the High Court as expeditiouslyas possible and preferably within six months. However, as transpiringfrom the observations made by the High Court in the impugned order,Dwhich have remained unchallenged before us, it was only because ofthenon-cooperation on behalf of the counsels appearing for the appellant-accused, the High Court was not able to hear the Reference case. Thecourt may not have to remind the senior advocates of their duties toassist the courts for the cause of justice, and not to indulge into dilatoryEtactics and hamper the cause of justice.

7) Having said that, let us examine the merits of the submissionsmade before us. Placing heavy reliance on the observations made bythis court in case of Manoj and others Vs. State of Madhya Pradesh(supra), the learned senior counsel for the appellant submitted that theFappellant along with the other two accused on 05.09.2022 had sent aletter addressed to the Inspector (Law and Order) E-4 AbiramapuramPolice Station, Chennai requesting him to produce certain documents asmentioned in the letter, which were required for fair adjudication in thecase. He further submitted that till the copies of the documents demandedby the accused as mentioned in the said letter were furnished to them, itGwas not possible for them to proceed with the hearing of the appeals orthe Reference case pending before the High Court. According to them,the observations made by this Court in para 177 to 179 in case of Manojand others Vs. State of Madhya Pradesh (supra) were very muchsignificant for safeguarding the rights of the accused to a fair investigationHcarried out by the mighty State’s police machinery; and that the interest

P. PONNUSAMY v. THE STATE OF TAMIL NADU

of the justice warranted that the further hearing of RT No. 02 of 2021pending before the High Court be stayed till the appellants and otheraccused were provided with the documents demanded by them.

8) The said submissions made by the learned senior advocatesappearing for the appellant deserve to be out rightly rejected, havingbeen advanced out of sheer misconception of the law andmisinterpretation of the observations made by this Court in case of Manojand others Vs. State of Madhya Pradesh (supra). The preciseobservations made by this Court in para 177, 178 and 179 of the judgementin the said case of Manoj and others may be reproduced here under: - “177. In this manner, the public prosecutor, and then the trial court’sscrutiny, both play an essential role in safeguarding the accused’sright to fair investigation, when faced with the might of the state’spolice machinery.

178. This view was endorsed in a recent three judge decision ofthis court in Criminal trials guidelines regarding Inadequacies andDeficiencies, in re v. State of Andhra Pradesh. This court hashighlighted the inadequacy mentioned above, which would impedea fair trial, and inter alia, required the framing of rules by all statesand High Courts, in this regard, compelling disclosure of a listcontaining mention of all materials seized and taken in, duringinvestigation-to the accused. The relevant draft guideline, approvedby this Court, for adoption by all states is as follows:

“4. SUPPLY OF DOCUMENTS UNDER SECTIONS 173, 207 AND 208 CR.PC

Every Accused shall be supplied with statements of witnessrecorded under Sections 161 and 164 Cr.PC and a list ofdocuments, material objects and exhibits seized duringinvestigation and relied upon by the Investigating Officer (I.O)in accordance with Sections 207 and 208, Cr.PC.

Explanation: the list of statements, documents, material objectsand exhibits shall specify statements, documents, materialobjects and exhibits that are not relied upon by the InvestigatingOfficer.”

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A179. In view of the above discussion, this court holds that theprosecution, in the interests of fairness, should as a matter of rule,in all criminal trials, comply with the above rule, and furnish thelist of statements, documents, material objects and exhibits whichare not relied upon by the investigating officer. The presidingofficers of courts in criminal trials shall ensure compliance withBsuch rules.”

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9) It may be noted that the draft guidelines were given by thisCourt to all the High Courts and the State Governments and Union ofIndia in the suo-moto proceedings initiated by this Court under ArticleC32, during the course of hearing of a criminal appeal, whereby the courthad noticed certain common deficiencies occurring during the course ofcriminal trials and certain practices adopted by the trial courts in thecriminal proceedings. The said suomoto proceedings were registered as“Criminal Trials Guidelines Regarding Inadequacies andDeficiencies, in Re Vs. State of Andhra Pradesh and others[1].” TheDsaid case related, amongst others to deficiencies/lapses with regard tothe manner in which the documents (list of witnesses, list of exhibits, listof material objects) referred to and presented and exhibited in thejudgements, and lack of uniform practices in regard to preparation ofinjury reports, deposition of witnesses, translation of statements,Enumbering and nomenclature of witnesses, labeling of material objectsetc. which often led to a asymmetries and hamper appreciation ofevidence, which in turn had a tendency prolonging the proceedingsespecially at the appellate stage. The court in the said case had noticedthat on these aspects, some High Courts had framed the rules, howeversome had not, which had led to a lack of clarity and uniformity in regardFto the presentation of trial court proceedings and records, for the purposeof appreciation at the High Court and Supreme Court level. The court inthe said case, after considering the suggestions/submissions of the AmiciCurie and of the counsels appearing for the High Courts, States and theUnion Territories, on “the Draft Rules of Criminal Practice 2020” preparedby the Amici Curie, had given the following directions vide the orderGdated 20.04.2021:- “19. The Court is of the opinion that the Draft Rules of CriminalPractice, 2021, (which are annexed to the present order, and shallbe read as part of it) should be hereby finalised in terms of theH1 (2021) 10 SCC 598

above discussion. The following directions are hereby issued:

19.1. All High Courts shall take expeditious steps to incorporatethe said Draft Rules, 2021 as part of the rules governing criminaltrials, and ensure that the existing rules, notifications, orders andpractice directions are suitably modified, and promulgated(wherever necessary through the Official Gazette) within 6 monthsfrom today. If the State Government’s co-operation is necessaryin this regard, the approval of the department or departmentsconcerned, and the formal notification of the said Draft Rules,shall be made within the said period of six months.

19.2. The State Governments, as well as the Union of India (inrelation to investigating agencies in its control) shall carry outconsequential amendments to their police and other manuals, withinsix months from today. This direction applies, specifically in respectof Draft Rules 1-3. The appropriate forms and guidelines shall bebrought into force, and all agencies instructed accordingly, withinsix months from today.”

10) From the above, it clearly emerges that this Court in the afore-stated suo moto proceedings had directed all the High Courts to takeexpeditious steps to incorporate the said Draft Rules as part of the Rulesgoverning criminal trials and to ensure that the existing rules, notifications,orders and practice are suitably modified and promulgated, wherevernecessary through the official gazette within six months from the date ofthe said order. The court had also directed the State Governments aswell as the Union of India to carry out consequential amendments to thepolice and other manuals. However, neither the High Courts nor theState Governments appear to have taken any steps pursuant to the saiddirections. As a result thereof, the said Draft Rules have neither beenadopted by the respective High Courts/State Governments nor have comeinto force. Unless and until the Draft Rules as suggested by the court inthe suo moto proceedings are incorporated by the High Courts in theRules governing criminal trials and unless the consequential amendmentsare made by the State Governments and the Union of India in the Policeand other Manuals, the same could not have been pressed into serviceby any party to a criminal proceeding. The observations made in para179 of the judgement in case of Manoj and others Vs. State of MadhyaPradesh (Supra) were in the context of the said directions given by the A

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Acourt in the suo moto proceedings and therefore were required to beread in conjunction with the earlier paras 177 and 178 of the saidjudgement. Meaning thereby, the prosecution is expected to comply withthe Draft Rule no. 4 pertaining to the supply of documents, as and whenthe said set of Draft Rules are adopted by the High Courts and StateGovernments, giving them a statutory force.B

11) May it be noted that in any case, the Draft Rule no. 4 withregard to the supply of documents under Sections 173, 207 and 208Cr.P.C. is part of the Chapter I of the said Draft Rules, to be followedduring the course of investigation and before the commencement of theCtrial. The said Draft Rule no.4 as and when brought into force afterfollowing the due process of law could be pressed into service by theaccused only during the course of investigation and during the course oftrial, and not at the appellate stage before the High Court or the SupremeCourt.

D12) In the aforesaid premises, the attempt made on behalf of theappellant-accused and the other accused to delay the hearing of theappeals and the death Reference case pending before the High Court,under the guise that they had demanded certain documents from theInvestigating Officer was absolutely reprehensible. As observed by theHigh Court in the impugned order, “all the papers relied upon by theEprosecution were placed by the Investigating Officer before the trialcourt and copies were furnished to the accused under Section 207 Cr.P.C.The same have got translated as legal evidence during trial and the caseof the accused should have to stand or fall based on that unless additionalevidence is sought to be taken.”F

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13) This Court does not express any opinion on the merits of thecase, and dismisses the present appeal being devoid of merits.

14) The registry is directed to circulate a copy of this order to allthe High Courts, who in turn shall circulate the same to their respectivesubordinate courts.G

S. RAVINDRA BHAT, J.

1. Leave granted. This appeal arises out of an order dated14.09.2022 in RT No. 2/2021, by the High Court of Judicature at Madras.In those proceedings, the High Court had by order dated 27.04.2022Hfixed the hearing of the main proceeding – which is a death reference.

2. The appellant and some others were convicted under Section302 of the IPC along with other provisions and Section 120B. Theappellant (A1); A3; A4; A5; A7; A8 and A9 were sentenced to death.Consequently, reference was made to the High Court which was seizedof all the proceedings and heard it from time to time. On 27.04.2022after ascertaining convenience of all the counsels the appeals were listedfor final hearing on 15.06.2022. The judgment of Bela Trivedi J., hasrecounted all these facts in detail. The further proceedings which tookplace before the High Court, the hearing and the order made on14.09.2022, declining to direct State to produce documents enlisted inletter written to the public prosecutor on behalf of the appellant on05.09.2022, is impugned here.

3. The final order proposed by Bela Trivedi J., of rejecting anappeal is in our opinion justified in the circumstances of the case.However, we are unable to agree with the observations made during thecourse of her order as to the nature of the directions made in Suo MotuW.P. (Crl.) No. 1 of 2017, concerning the right of the accused to besupplied with documents or material, seized or collected during theinvestigation, but not relied upon.

4. While hearing a criminal appeal[1] and connected matters, concernwas raised regarding common deficiencies and practices adopted bytrial courts in the course of criminal trial and disposal of cases, in theabsence of uniform guidelines. This resulted in Suo Motu WP (Crl.) No.1 of 2017, wherein this court appointed amici curiae, and issued notice toall High Courts and governments of all States and Union Territories,sogeneral consensus could be arrived at regarding the need to amend rulesof practice/criminal manuals to bring about uniform best practices acrossthe country.[2] The court noted salient aspects and inconsistencies in thepractices and rules of the High Courts.

5. A wide consultative process was undertaken. Firstly, HighCourts and governments of States/Union Territories, filed their responses.Taking note of these, the amici curiae prepared a consultation paper andinvited written responses from stakeholders. Next, acolloquium wasconvened on 30.03.2019 to discuss this paper, wherein High Courts,governments of States/Union Territories and police departments 1Criminal Appeal No. 400/2006

2Order dated 30.03.2017 in Suo Motu WP (Crl) No. 1/2017.

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Aparticipated. Based on the feedback, the amici curiae prepared a reportcontaining the ‘Draft Rules of Criminal Practice, 2020’ which was takenon record on 05.03.2020 and made available[3] publicly through theSupreme Court website.

6. Before passing directions on the same, this court thought itBappropriate to hear the High Courts again, on these draft rules.[4] Onceresponses were received from all High Courts, the matter was heard; inthe final order dated 20.04.2021[5 ]it was noted that most of the suggestionshad been agreed upon, except in regard to few aspects – the divergence,or additional points of view, were taken note of[6].

C7. The amici curiae had pointed out that before the commencementof the trial, the accused only receives a list of documents and statementsrelied upon by the prosecution but is kept in the dark on other material inthe possession of the prosecution, even if it has exculpatory value. Onthis, the court unequivocally held:

D“11. … This Court is of the opinion that while furnishing the listof statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of othermaterials, (such as statements, or objects/documents seized, butnot relied on) should be furnished to the accused. This is to ensurethat in case the accused is of the view that such materials areEnecessary to be produced for a proper and just trial, she or hemay seek appropriate orders, under CrPC7for their production 3<https://main.sci.gov.in/pdf/LU/06032020_103012.pdf> (accessed on 31.10.2022,18:28 pm).4 See order dated 27.10.2020, and again on 19.01.2021 in Suo Motu WP (Crl) No. 1/F2017.5 Reported as Criminal Trials Guidelines Regarding Inadequacies and Deficiencies,In re. v. State of Andhra Pradesh and Ors., (2021) 10 SCC 598.6Ibid, para 9.

7"91. Summons to produce document or other thing.—(1) Whenever any court or anyofficer in charge of a police station considers that the production of any document orother thing is necessary or desirable for the purposes of any investigation, inquiry, trialGor other proceeding under this Code by or before such Court or officer, such Court mayissue a summons, or such officer a written order, to the person in whose possession orpower such document or thing is believed to be, requiring him to attend and produce it,or to produce it, at the time and place stated in the summons or order.(2) Any personrequired under this section merely to produce a document or other thing shall bedeemed to have complied with the requisition if he causes such document or thing to beHproduced instead of attending personally to produce the same.(3) Nothing in this

P. PONNUSAMY v. THE STATE OF TAMIL NADU[S. RAVINDRA BHAT, J.]

during the trial, in the interests of justice. It is directed accordingly;the Draft Rules have been accordingly modified. [Rule 4(i)]”

(emphasis supplied)

8. Rule 4 of Draft Rules of Criminal Practice 2021, which wasappended to, and considered part and parcel of this court’s order, readsas follows:

“4. Supply of documents under Sections 173, 207 and 208 CrPC.—(i) Every accused shall be supplied with statements of witnessrecorded under Sections 161 and 164 CrPC and a list of documents,material objects and exhibits seized during investigation and reliedupon by the investigating officer (IO) in accordance with Sections207 and 208 CrPC.

Explanation : The list of statements, documents, material objectsand exhibits shall specify statements, documents, material objectsand exhibits that are not relied upon by the investigating officer.”

9. The matter was disposed of with the following directions:

“19. The Court is of the opinion that the Draft Rules of CriminalPractice, 2021, (which are annexed to the present order, and shallbe read as part of it) should be hereby finalised in terms of theabove discussion. The following directions are hereby issued:

19.1. All High Courts shall take expeditious steps to incorporatethe said Draft Rules, 2021 as part of the rules governing criminaltrials, and ensure that the existing rules, notifications, orders andpractice directions are suitably modified, and promulgated(wherever necessary through the Official Gazette) within 6 monthsfrom today. If the State Government’s co-operation is necessaryin this regard, the approval of the department or departmentsconcerned, and the formal notification of the said Draft Rules,shall be made within the said period of six months.

19.2. The State Governments, as well as the Union of India (inrelation to investigating agencies in its control) shall carry outconsequential amendments to their police and other manuals, withinsix months from today. This direction applies, specifically in respectof Draft Rules 1-3. The appropriate forms and guidelines shall be section shall be deemed—(a) to affect Sections 123 and 124 of the Indian Evidence Act,1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891) or(b) toapply to a letter, postcard, telegram or other document or any parcel or thing in thecustody of the postal or telegraph authority.”

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Abrought into force, and all agencies instructed accordingly, withinsix months from today.”

10. The Draft Rules framed, therefore, were a product of a thoroughconsultative exerciseundertaken to remedy asymmetries caused by thelack of uniformity in Rules across States, which could hamper appreciationBof evidence, and in turn delay proceedings, especially at the appellatestage. Recognition of the need to streamline trials or mitigate delays,however, cannot come at the cost of the accused’s right to fair trial.

11. Taking note of the case law in Siddharth Vasisht @ ManuSharma v. State of NCT Delhi[8], this court in Manoj &Ors. v. State ofMadhya Pradesh[9], highlighted the dual role played by the publicCprosecutor and the court in safeguarding the accused’s right to fairinvestigation and trial, by scrutinizing the material and ensuring fairdisclosure. In light of this, and the aforementioned draft Rule 4, thiscourt went on to hold in Manoj that:

“…In view of the above discussion, this court holds that theDprosecution, in the interests of fairness, should as a matter of rule,in all criminal trials, comply with the above rule, and furnish thelist of statements, documents, material objects and exhibits whichare not relied upon by the investigating officer. The presidingofficers of courts in criminal trials shall ensure compliance withsuch rules.”E

12. In addition to the decision in Manu Sharma(as noticed inManoj), there is another decision –Manjeet Singh Khera v. State ofMaharashtra[10] - which had highlighted how the requirement ofdisclosure, is an intrinsic part of the right to fair trial under Article 21 ofthe Constitution.[11] Relying upon its previous decision in V.K. Sasikala v.FState[12], this court noted in Manjeet Singh Khera:

“…In that case, the documents were forwarded to the court underSection 173(5) CrPC but were not relied upon by the prosecution 8(2010) 6 SCC 1 (referred to as ‘Manu Sharma’). See paragraphs 187, 199, 201, 202,218-222 (relied on in Manoj &Ors. v. State of Madhya Pradesh).

G9 Judgment dated 20.05.2022 in Criminal Appeal Nos. 248-250 of 2015; 2022 SCCOnLine SC 677.

10(2013) 9 SCC 276

11This was also reaffirmed in P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161where it was held that “furnishing of documents to the accused under Section 207 of the1973 Code is a facet of right of the accused to a fair trial enshrined in Article 21 of theConstitution”.H12 (2012) 9 SCC 771

P. PONNUSAMY v. THE STATE OF TAMIL NADU[S. RAVINDRA BHAT, J.]

and the accused wanted copies/inspection of those documents.This Court held that it was incumbent upon the trial court to supplythe copies of these documents to the accused as that entitlementwas a facet of just, fair and transparent investigation/trial andconstituted an inalienable attribute of the process of a fair trialwhich Article 21 of the Constitution guarantees to every accused.We would like to reproduce the following portion of the saidjudgment discussing this aspect: (V.K. Sasikala case [V.K. Sasikalav. State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , SCC p.788, para 21)

“21. The issue that has emerged before us is, therefore, somewhatlarger than what has been projected by the State and what hasbeen dealt with by the High Court. The question arising would nolonger be one of compliance or non-compliance with the provisionsof Section 207 CrPC and would travel beyond the confines of thestrict language of the provisions of CrPC and touch upon the largerdoctrine of a free and fair trial that has been painstakingly built upby the courts on a purposive interpretation of Article 21 of theConstitution. It is not the stage of making of the request; the effluxof time that has occurred or the prior conduct of the accused thatis material. What is of significance is if in a given situation theaccused comes to the court contending that some papersforwarded to the court by the investigating agency have not beenexhibited by the prosecution as the same favours the accused thecourt must concede a right to the accused to have an access tothe said documents, if so claimed. This, according to us, is thecore issue in the case which must be answered affirmatively. Inthis regard, we would like to be specific in saying that we find itdifficult to agree with the view [V.K. Sasikala v. State, 2012 SCCOnLine Kar 9209] taken by the High Court that the accused mustbe made to await the conclusion of the trial to test the plea ofprejudice that he may have raised. Such a plea must be answeredat the earliest and certainly before the conclusion of the trial, eventhough it may be raised by the accused belatedly. This is how thescales of justice in our criminal jurisprudence have to be balanced.”

(emphasis supplied)

13. It is true that this court in V.K. Sasikala (supra) was dealingwith material/documents that were forwarded to the Magistrate underSection 173 CrPC, but were not being relied upon by the prosecution.

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AHowever, it is undeniable that there could also arise a situation whereinthe investigating officer, ignores or does not rely on seized documents,material or evidence which favours the accused, and fails to forward itto the Magistrate [as required under Section 173 CrPC, specifically sub-section (6)]. Merely because it is not already on the record of the court,cannot disentitle the accused from accessing material that may haveBexculpatory value. It is this gap, that was recognised and addressed(paragraph 11 of final order) in the suo-moto proceedings, and suitablycodified in the text of the Draft Rule 4, by introducing a requirement ofproviding a list(at the commencement of the trial)of all documents,material, evidence, etc. seized during the course of investigation or inthe possession of the prosecution,regardless of whether the prosecutionCplans to rely on it. The facts in Manoj, having reflected such a situation(of suppression of evidence that favoured the accused) similarly,necessitated elaboration of this right.

14. The framework that emerges (by reading Section 173, 207,208 and Draft Rule 4) is that based on the list of statements, documents,Detc. received at the commencement of the trial, the accused can seekappropriate orders under Section 91 of the CrPC, wherein the magistrateon application of judicial mind, may decide on whether it ought to becalled for. Additionally, by virtue of Section 391[13]of the CrPC, theappellate court, if it deems necessary, may take further evidence (orEdirect it be taken by a magistrate or court of sessions) upon recordingreasoning. This safeguards the right of the accused in a situation whereconcern has been raised regarding evidence or material in possession ofthe prosecution, that had not been furnished, but was material to the trialand disposal of the case.

F15. By way of Miscellaneous Application No. 505/2022 inSMW(Crl) No. 1 of 2017, this court was apprised of the fact that some13391. Appellate Court may take further evidence or direct it to be taken.—(1) Indealing with any appeal under this Chapter, the Appellate Court, if it thinks additionalevidence to be necessary, shall record its reasons and may either take such evidenceitself, or direct it to be taken by a Magistrate, or when the Appellate Court is a HighCourt, by a Court of Session or a Magistrate.G(2) When the additional evidence is taken by the Court of Session or theMagistrate, it or he shall certify such evidence to the Appellate Court, and such Courtshall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when theadditional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions ofHChapter XXIII, as if it were an inquiry.

states had complied, and other had not complied with the directions infinal order dated 20.04.2021[14] regarding adoption of the Draft Rules andamending police manuals, etc. in a time-bound manner (6 months); thestates were directed[15] to comply within 8 weeks and the matter is stillpending.

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16. That some High Courts or governments of the States/ UnionTerritories have failed to comply with this court’s order and are delayedin adopting the Draft Rules or amending the concerned police/practicemanuals, cannot prejudice the right of an accused (to receive this list ofthe statements, documents, material, etc. in the possession of theprosecution), which has unequivocally been recognized by this court initsfinal order[16] of the suo-moto proceedings (paragraph 11, extracted above),itself.Further, tosay that the judgment in Manoj in relation to this, andthe right of the accused to receive the said list of documents, material,etc. would only apply after the draft rules are adopted– would leadto an anomalous situation where the right of the accused in one state,prejudicially differs from that afforded to an accused, in another.

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17. As stated earlier, the requirement of disclosure elaborated onin Manoj, not only was premised on the formulation of draft rules, butnormatively premised on the ratio of the three-judge bench decision inManu Sharma (supra). In these circumstances, the proper and suitableinterpretation of the disclosure requirement in Manoj (supra) would bethat:

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(a) It applies at the trial stage, after the charges are framed.

(b) The court is required to give one opportunity of disclosure,and the accused may choose to avail of the facility at thatFstage.

(c) In case documents are sought, the trial court should exerciseits discretion, having regard to the rule of relevance in thecontext of the accused’s right of defence. If the documentor material is relevant and does not merely have remote G

14 Suo Motu WP (Crl) No. 1/201715 By order dated 28.04.2022 in Miscellaneous Application No. 505/2022 inSMW(Crl) No. 1/2017.

16Order dated 20.04.2021 in Suo Motu WP (Crl) No. 1/2017, reported as CriminalTrials Guidelines Regarding Inadequacies and Deficiencies, In re. v. State of AndhraPradesh and Ors., (2021) 10 SCC 598.

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bearing to the defence, its production may be directed. Thisopportunity cannot be sought repeatedly – the trial courtcan decline to issue orders, if it feels that the attempt is todelay.

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(d) At the appellate stage, the rights of the accused are to beBworked out within the parameters of Section 391 CrPC.

18. That the accused, has a right to fair trial, was not in doubt; butwhat is reiterated is that this right is manifested in the fair disclosurerequirementelaborated above. While the concern of delay in conclusionof trial undoubtedly weighs heavily in the mind of the judge, it cannotCentail compromise of the right of the accused to fair investigation andtrial.

19. Having regard to the above discussion we are of the opinionthat the circumstances in which the request was made – through theletter after appeal was set down for hearing despite repeatedDopportunities, was not justified. The appellant could have sought recourseby filing an appropriate application, in accordance with the proceduresset out above, well in time. We therefore agree that the appeal made atthis late stage, appears to be to prolongthe hearing. In thesecircumstances, the Court declines to interfere. The appeal is accordinglyEdismissed.

Ankit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeal dismissed.

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