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TMI Blog2022 (11) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... d the hearing of the main proceeding - which is a death reference. 2. The appellant and some others were convicted under Section 302 of the IPC along with other provisions and Section 120B. The appellant (A1); A3; A4; A5; A7; A8 and A9 were sentenced to death. Consequently, reference was made to the High Court which was seized of all the proceedings and heard it from time to time. On 27.04.2022 after ascertaining convenience of all the counsels the appeals were listed for final hearing on 15.06.2022. The judgment of Bela Trivedi J., has recounted all these facts in detail. The further proceedings which took place before the High Court, the hearing and the order made on 14.09.2022, declining to direct State to produce documents enlisted in letter written to the public prosecutor on behalf of the appellant on 05.09.2022, is impugned here. 3. The final order proposed by Bela Trivedi J., of rejecting an appeal is in our opinion justified in the circumstances of the case. However, we are unable to agree with the observations made during the course of her order as to the nature of the directions made in Suo Motu W.P. (Crl.) No. 1 of 2017, concerning the right of the accused to be suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the possession of the prosecution, even if it has exculpatory value. On this, the court unequivocally held: "11. ... This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC "91. Summons to produce document or other thing.-(1) Whenever any court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Union of India (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appropriate forms and guidelines shall be brought into force, and all agencies instructed accordingly, within six months from today." 10. The Draft Rules framed, therefore, were a product of a thorough consultative exercise undertaken to remedy asymmetries caused by the lack of uniformity in Rules across States, which could hamper appreciation of evidence, and in turn delay proceedings, especially at the appellate stage. 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 @ Manu Sharma v. State of NCT Delhi (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). , this court in Manoj & Ors. v. State of Madhya Pradesh Judgment dated 20.05.2022 in Criminal Appeal Nos. 248-250 of 2015; 2022 SCC OnLine SC 677 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view [V.K. Sasikala v. State, 2012 SCC OnLine Kar 9209] taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. of the CrPC, the appellate court, if it deems necessary, may take further evidence (or direct it be taken by a magistrate or court of sessions) upon recording reasoning. This safeguards the right of the accused in a situation where concern has been raised regarding evidence or material in possession of the prosecution, that had not been furnished, but was material to the trial and disposal of the case. 15. By way of Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1 of 2017, this court was apprised of the fact that some states had complied, and other had not complied with the directions in final order dated 20.04.2021 Suo Motu WP (Crl) No. 1/2017 regarding adoption of the Draft Rules and amending police manuals, etc. in a time-bound manner (6 months); the states were directed By order dated 28.04.2022 in Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1/2017 to compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While the concern of delay in conclusion of trial undoubtedly weighs heavily in the mind of the judge, it cannot entail compromise of the right of the accused to fair investigation and trial. 19. Having regard to the above discussion we are of the opinion that the circumstances in which the request was made - through the letter after appeal was set down for hearing despite repeated opportunities, was not justified. The appellant could have sought recourse by filing an appropriate application, in accordance with the procedures set out above, well in time. We therefore agree that the appeal made at this late stage, appears to be to prolong the hearing. In these circumstances, the Court declines to interfere. The appeal is accordingly dismissed. ...........................................CJI. [UDAY UMESH LALIT] ................................................J. [S. RAVINDRA BHAT] JUDGEMENT BELA M. TRIVEDI, J. 1) Leave granted. 2) The appellant (original accused no. 1) has filed the present appeal being aggrieved by the impugned order dated 14.09.2022 passed by the High Court of Judicature at Madras in RT No. 02 of 2021, whereby the High Court had directed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 179. b) Relying on these observations, a letter was written on behalf of the accused on 05.09.2022 seeking documents which were in the possession of the investigating machinery. c) Without deciding the issues raised in said letter, the High Court has proceeded to fix the matter for hearing in death confirmation case. We issue notice on this petition, returnable on 20.10.2022 and direct that the matter be placed before the same Bench which dealt with and rendered the decision in Manoj & Others (supra). Dasti service, in addition, is permitted. Liberty is granted to serve the learned Standing Counsel for the State. Since the matter is posted before the High Court for final disposal, at this stage, we do not deem it appropriate to pass any interim directions except to request the High Court not to pronounce the final order in case the matter is taken up for final disposal." 4) In the present Appeal, we need not go deep into the merits of the Appeals or the Reference case, which are pending before the High Court. Suffice it to say that the appellant along with other eight accused were convicted and sentenced by the City Civil and Sessions Court, Chennai in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appraised her that the case pertained to the sentence of death penalty, which had to be completed within six months and that for the last one year there was no progress in the case on account of noncooperation of the accused. However, she repeatedly assured the court that no one would seek adjournment on 17.10.2022, and therefore the High Court out of sheer courtesy and respect for the senior advocate adjourned the case to 17.10.2022. 6) Despite such assurance having been given by the senior advocate and all other advocates including other senior advocates appearing for the other appellants-accused to the High Court to proceed with the hearing of the Reference case and the appeals, the appellant rushed to this Court to hamper the hearing fixed before the High Court on 17.10.2022. Such a dilatory tactics adopted by the parties and their advocates and thereby deflecting the course of justice in the cases like the present one, where some of the appellant-accused are facing the death penalty and some sentence of life imprisonment are strongly deprecated. It is needless to say that the death Reference cases referred by the Sessions Courts to the High Court have to be given utmost prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "177. In this manner, the public prosecutor, and then the trial court's scrutiny, both play an essential role in safeguarding the accused's right to fair investigation, when faced with the might of the state's police machinery. 178. This view was endorsed in a recent three judge decision of this court in Criminal trials guidelines regarding Inadequacies and Deficiencies, in re v. State of Andhra Pradesh. This court has highlighted the inadequacy mentioned above, which would impede a fair trial, and inter alia, required the framing of rules by all states and High Courts, in this regard, compelling disclosure of a list containing mention of all materials seized and taken in, during investigation-to the accused. The relevant draft guideline, approved by 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 witness recorded under Sections 161 and 164 Cr.PC and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (I.O) in accordance with Sections 207 and 208, Cr.PC. Explanation: the list o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following directions vide the order dated 20.04.2021:- "19. The Court is of the opinion that the Draft Rules of Criminal Practice, 2021, (which are annexed to the present order, and shall be read as part of it) should be hereby finalised in terms of the above discussion. The following directions are hereby issued: 19.1. All High Courts shall take expeditious steps to incorporate the said Draft Rules, 2021 as part of the rules governing criminal trials, and ensure that the existing rules, notifications, orders and practice directions are suitably modified, and promulgated (wherever necessary through the Official Gazette) within 6 months from today. If the State Government's co-operation is necessary in this regard, the approval of the department or departments concerned, 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 (in relation to investigating agencies in its control) shall carry out consequential amendments to their police and other manuals, within six months from today. This direction applies, specifically in respect of Draft Rules 1-3. The appro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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