Legislation and Government Policy

Production of Evidence by the Accused at the Pre-charge Stage: A Right or a Mini-trial?

Aditendra Singh

Contrary to the general understanding of the scheme of the Code of Criminal Procedure, if the accused has any material that, if produced at the stage of framing of charges, can exculpate them, should such material be allowed at this stage?

Scheme of the Code of Criminal Procedure, 1973 provides that charges are framed against the accused based on a report filed by the police under section 173 of CrPC. Going by the literal interpretation of Sections 227 and 228, which deal with the discharge and framing of charges, the court has to look at the police report and the documents submitted herewith that a prima facie case can be made out against the accused or not. But a far-fetched controversy has also entailed this section, i.e., whether an accused can present any document or material at this stage, in his defence, which is not referred to in the police report?

After various diverse opinions and verdicts of high courts across the country, this issue was dealt in depth by Supreme Court in the case of Satish Mehra v. Delhi Administration and Another (2 judge bench). In this case, the court interpreted the scheme and purpose of the code by asserting that herein fore, a fair trial is not given to the accused, and thus the present-day interpretation is not constitutionally valid.

For the purpose of section 227, it was held that the magistrate affords the prosecution and accused the opportunity of being heard besides the police report and the documents sent therewith. It is at this stage that the court gives an audience to the accused to decide whether it is necessary to proceed to the next stage or not. If the accused succeeds in producing any reliable material, then it would be unjust for the court to overlook that material at that stage.

From the perspective of fair trial procedure, the court opined that if the session judge is almost certain that the trial would only be an exercise in futility or an absolute waste of time, then he can stop the proceedings at this very stage itself. Therefore, this case accentuated the importance of time of the court, human effort, cost to the accused and cost to the exchequer from the perspective of the right to a fair trial. Similarly, Satish Mehra also observed that not giving any opportunity to the accused at this stage would undermine their case on the grounds of equity, fairness and justice. If the accused would have to face trial for years, costing him heavy money, valuable time and his dignity, even in the presence of evidence which can exculpate him of charges at the very outset of framing of charges, it would not only cause prejudice to the accused but also a failure of justice.

Thus, the court asserted the reading of the provision in such a manner which would not run on the risk of being declared ultra vires of Article 21 and Article 14 of the Indian constitution. But again in 1999, the Supreme Court in the case of State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam held that magistrate should consider only reports submitted to them and submissions of the accused, and the only right the accused has at that stage is that of being heard and nothing beyond that. Ramesh Singh, Ram Kishore, Nirmaljit Singh Hoon, Chandra Deo Singh vs Prokash Chandra Bose & Anr, Amit Kapoor vs. Ramesh Chander and many more! There is a whole docket of cases dealing with the issue at hand.

It was in 2003 with the case of Debendra Nath Padhi that the issue seemed to settle. The full bench of the Supreme Court inquired into every aspect of Satish Mehra while interpreting the law. While consolidating the arguments of the scheme and objective of the code, the court held that no provision of the code grants any right to the accused person to produce any document at the stage of framing of charges. The rationale behind this order was that at this stage the court has to consider the question of sufficiency of grounds for proceedings against the accused on a general consideration of the materials placed before it by the investigating agency. If the accused is allowed to take the benefit of this section in such a manner, it would result in the conduction of a mini-trial at the stage of framing of charges or taking cognizance, and thus effectively running of two trials. The court also observed that the expression “hearing the submissions of the accused” cannot mean the opportunity to file evidence by the accused.

On the grounds of constitutionality and right of a fair trial to the accused, Padhi held that roving and fishing enquiry at this stage is impermissible at this stage. Similarly, it was also held that a defence of the accused is not relevant at this stage. In several cases, such as Prashant Kumar Singh vs State (Govt. Of NCT Of Delhi), Anoop Singh vs. State, it was also set as a rule that materials which are placed by the prosecution in its report must be taken at its face value.

Padhi thus, held in clear terms that there is no scope for the accused to produce any material at the stage in issue. Regarding concerns relating to accused having to face the trial despite being in a position to produce material of unimpeachable character or sterling quality, it was held that high court by its inherent powers under section 482 CrPC and by its jurisdiction under article 226 of the constitution, can make arrangements for the accused to prevent the abuse of process or secure the ends of justice.

In Shakuntala v State of Delhi, the court said that for a fair investigation, an investigative officer must not strengthen the prosecution’s case by withholding evidence that is in favour of the accused. If the accused can show to the magistrate that the prosecution has withheld the material deliberately so that the truth does not come out before the court, then the trial court shall ask the investigative officer to place all the material obtained from the investigation before him.

The 2008 case of Rukmini Narvekar, the division bench reiterated the ruling of Padhi to a large extent and opined that there can be exceptional circumstances where the prosecution’s case is totally absurd and preposterous and thus, in those rare cases, the court can look into the defence evidence at the stage of framing of charges or even at the stage of cognizance.

A series of judgment was passed by Delhi High Court Judgment on the same question of law. Starting from 2014, the case of Ashutosh Verma, the court departed from the long-held notion of no right of the accused to produce any documents at the stage of trial. But it is also pertinent to note that court, in this case, failed to consider the case of Padhi, and thus it is per incuriam. Then in 2016, the case of Shashibala also upheld the same ruling on the grounds of doing substantial justice to the parties. It was then in the 2019 case of Sarla Gupta, by relying upon the ruling of Dinesh Puri and Dharmabir, it was held that the accused is not entitled to the documents which are not relied upon by the prosecutor during the framing of charges.

In 2018, from an appeal from Karnataka High Court decision, the division bench of Supreme Court in the case of Nitya Dharmananda v Gopal Sheelum Reddy struck a balance between the two extreme views, i.e., between the rights of the accused to have a fair trial and the apprehension of mini-trial. But a question arose concerning the exclusion of material that is crucial to the accused from the charge sheet. This question is important because section 91 of CrPC, which gives provision for summoning any documents is not available at the stage of framing of charges. The case has held that the accused usually doesn’t have any right to adduce any material at the stage of framing of charges but if any evidence, which is of sterling quality or has a crucial bearing on the case is present, then such materials shall not be left out.

This opened an avenue for the accused to produce documents if there is substantial prejudice against him because of the prosecution’s concealment of materials that tend to exculpate him. Though, the court did not delve into what materials would exactly constitute sterling quality, thus leaving it on the wisdom or whims of the judge to decide the same. In its entirety, the oscillation verdicts are halted by the ruling of the aforementioned case, thus settling the procedural aspect of the law, it still fails to clear the ambiguity regarding what shall constitute as sterling quality.


With the ruling of Nitya Dharmananda, this whole issue seems to have come to rest. But given the intricate nature of the scheme of Criminal Procedure Code, we have already seen a catena of rulings, with decisions ranging from one end to the other. Additionally, due to the difference in the interests of stakeholders involved, and the ambiguity in the interpretation of purpose which the code seeks to achieve, new cases with different rulings are bound to come.

It has now become imperative for the Court to infallibly, and in concrete words, interpret the code, keeping in mind the conflicting, yet critical issues of both sides. This would also prevent the prospects of having varied judgments and would put an end to the uncertainty which has mired the judicial process for a long time. So, in letter, even though the law seems to be settled, in spirit, it is bound to cause more ambiguity.

The author is a student at the National Law University, Delhi.

1 reply »