India: The Shifting Judicial Sands On Accused's Right To Rely On Exculpatory Material At The Stage Of

Discharge

Last Updated: 8 March 2018

Article by Bharat Chugh and Vibhor Jain

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A preliminary hearing in a criminal trial is one of great importance, and the right to seek a discharge
(threshold dismissal) is an extremely valuable right that the Criminal Justice System guarantees to the
Accused. This gives an opportunity to the Court to sift out meritless cases at the very threshold, and
throw them out. However, the scope of scrutiny at that stage and the material that the Court can look
into, in order to make that decision, are extremely limited. It has been held in a number of cases by the
Supreme Court that the Court cannot look beyond the material that the Prosecution chooses to rely on,
in order to decide whether to discharge the accused, or take the matter to trial.

Practice has shown that this often leads to the Prosecution relying solely only on 'self-serving' and
'incriminating' material, and suppression/withholding of evidence which is exculpatory in nature and can
potentially disprove the case against the accused at that stage itself.

This has been the consistent position over the last few decades. However, the recent judgment of the
Supreme Court of India in Nitya Dharmananda v. Gopal Sheelum Reddy, (2018) 2 SCC 93 ("Nitya") has
once again reignited the debate on the rather vexed question of the right of the Accused to rely on
material other than the police report, to make out a case for discharge.

To set the context for the discussion right, in Nitya, a Division Bench of the Supreme Court has held:

"...it is clear that while ordinarily the Court has to proceed on the basis of material produced with the
charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of
sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from
summoning or relying upon the same even if such document is not a part of the charge-sheet. It does
not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at
the stage of charge."
The above observations, particularly their consistency with judicial precedent, as also their desirability
for the administration of criminal justice and due process, would be the subject of this piece. With that
anchor in mind, let us begin at the beginning, with the first principles governing the judicial evaluation at
the time of discharge.

The statutory scheme of Discharge

The provisions in the CrPC relating to the framing of charge against an accused are broadly Sections 227
and 239, depending on the nature of the offence that one is looking at. (Broadly, Section 227 provides
for discharge in Sessions cases, whereas, Section 239 provides for discharge in cases triable by a
Magistrate). These provisions are being reproduced below for ease of reference:

Section 227 (Discharge in cases triable by Court of Sessions)

"227 – Discharge

If, upon consideration of the record of the case and the documents submitted therewith, and after
hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that
there is not sufficient ground for proceeding against the accused, he shall discharge the accused and
record his reasons for so doing."

Section 239 (Discharge in police report cases, triable by a Magistrate)

"239. When accused shall be discharged.

If, upon considering the police report and the documents sent with it under section 173 and making
such examination, if any, of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against
the accused to be groundless, he shall discharge the accused, and record his reasons for so doing"

A perusal of the above provisions would reveal that Court can discharge an accused if, on a perusal of
the police report and documents sent along with it under Section 173 (for convenience, let's just call it
"the Police Report"), the Court comes to the conclusion that the charge is groundless. Therefore, the
statute mandates the Court to use only the Police Report as the input material, and not evaluate any
other evidence, in order to arrive at a decision on framing the charge.

With that being the case, the next question that arises is: what all does this Police Report contain? Is it
required to contain evidence favorable to the accused, or should it be confined to material that the
prosecution seeks to rely on? What about the statements of those witnesses examined by the
Investigating Officer, who have gone on to support the defence case?

The answer lies in Section 173(5) of the CrPC, which reads as follows:

"173. Report of police officer on completion of investigation.

(...)

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward
to the Magistrate alongwith the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than
those already sent to the Magistrate during investigation;

(b) the statements- recorded under section 161 of all the persons whom the prosecution proposes to
examine as its witnesses..."(emphasis supplied)

Therefore, the material sent to the Court as Police Report contains all documents and witness
statements which the Prosecution proposes to rely upon and examine. One can see how this can easily
be used by the Prosecution in a self-serving manner. The Investigating Officer is, therefore, not
mandated by law to forward to the Court, as part of his Police Report, material which might be favorable
to the defense. But can the Court, on its own, look at material brought forth by the Accused? Or, is it
permissible for the Accused to invoke the powers of the Court under Section 91 of the CrPC, to bring to
the Court's attention documents and evidence which are exculpatory in nature, but have not been made
part of the Police Report? If the Accused has either of these rights, he would be better equipped to
demonstrate the charge to be 'groundless', on the face of it, without being made to go through a trial.
Let's see if Section 91 can come to the rescue of such an Accused:

Section 91 reads as follows:

"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 order..."

On a bare reading, there is nothing in Section 91 that prohibits its exercise at the stage of discharge,
however, Sections 227 and 239 (reproduced above) substantially whittle down the scope of looking into
material beyond the Police Report, at the stage of discharge. The task of harmonization of these two
provisions was taken up by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
568 (hereinafter, "Padhi").

Debendra Nath Padhi: No right of accused to advance material (beyond charge-sheet) to seek discharge

In Padhi, a Three-Judge Bench of the Supreme Court held that defence material cannot be advanced at
the stage of framing of charge since the defence of the Accused is irrelevant at that stage, and reliance
can only be placed on the record of the case as submitted by the police along with the charge sheet. The
decision further held that ordinarily, there would be no right of the Accused to seek production of a
document under Section 91 of the CrPC at the stage of framing of charge.

The decision was in sync with the statutory scheme and also in the interests of avoiding a 'trial within a
trial', in order to reduce delays in our already overburdened criminal courts. The Supreme Court in Padhi
specifically noted that Section 227 had been introduced with the specific purpose of dispensing with the
erstwhile process of the committal magistrate framing charge by making an inquiry (which included
examination of witnesses), which protracted the proceedings, and made the criminal justice process
lengthy. It was held that the words "record of the case" in Section 227 were to be understood in light of
Section 209(c) of the CrPC, which provides that in a case exclusively triable by a Sessions Judge, the
Magistrate shall send to the Sessions Court "the record of the case and the documents and articles, if
any, which are to be produced in evidence". Reading the two provisions together, the Court found that
"No provision in the Code grants to the accused any right to file any material or document at the stage
of framing of charge. That right is granted only at the stage of the trial."

The decision also relied on the established jurisprudence relating to the nature of scrutiny at charge
stage, and held: "All the decisions, when they hold that there can only be limited evaluation of materials
and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists
or not for the purpose of proceeding further with the trial, have so held with reference to materials and
documents produced by the prosecution and not the accused. The decisions proceed on the basis of
settled legal position that the material as produced by the prosecution alone is to be considered and not
the one produced by the accused."

Even with respect to the words "hearing the submissions of the accused", the Court held that the same
cannot mean that an opportunity has been granted to an accused to file material; the submissions have
to be confined to "record of the case", i.e. material produced by the police.

Therefore, the legal position effectively was that the judge is to look only at the police report, while
deciding whether to 'discharge, or not to discharge'. This made obtaining a discharge a herculean task
for any defence lawyer, and reduced, rather unfortunately, most discharge hearings/proceedings to
mere foregone conclusions and exercises in futility. This deprived the accused of an important due
process right; the right to demonstrate the falsity of the Prosecution case, without going through the
rigmarole of a long-drawn trial. This is unfortunate, since elsewhere, preliminary hearings are much
more effective and meaningful. For instance, in US, the defence gets to cross-examine Prosecution
witnesses at the stage of discharge (called a "preliminary hearing") with a view to demonstrate that
there is no probable cause to take the Accused to trial.

In Padhi, what the Supreme Court envisaged was a very limited evaluation at the stage of discharge. This
also led to there being practically no remedy in case an Investigating Officer, in flagrant disregard of 'due
process', 'duty of fair disclosure' and principles of fair investigation, suppresses or withholds exculpatory
material.

Departures from Padhi

However, subsequently, somewhat discordant notes have been struck on this issue by smaller Two-
Judge Benches of the Supreme Court, firstly in Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1,
and recently, in Nitya.

In Rukmini Narvekar, the accused had challenged the issue of process against him by seeking quashing
of proceedings before the High Court under Section 482 of the CrPC. The High Court had allowed the
accused's petition by relying on evidence recorded in a separate civil proceeding in which the
complainant was the plaintiff. The question before the Supreme Court was whether defence material
could be relied upon by the High Court while deciding on cognizance. Justice Markandey Katju embarked
upon an analysis of Padhi and observed:

"...it may also be pointed out that in para 29 of the same decision it has been observed that the width of
the powers of the High Court under Section 482 CrPC and Article 226 of the Constitution is unlimited
whereunder in the interests of justice the High Court can make such orders as may be necessary to
prevent abuse of the process of the Court or otherwise to secure the ends of justice..."

He then proceeded to hold:

"Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court
while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568], there may be some very rare
and exceptional cases where some defence material when shown to the trial court would convincingly
demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases
the defence material can be looked into by the court at the time of framing of the charges or taking
cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no
circumstances can the court look into the material produced by the defence at the time of framing of
the charges, though this should be done in very rare cases i.e. where the defence produces some
material which convincingly demonstrates that the whole prosecution case is totally absurd or totally
concocted." (emphasis supplied)

Though of great practical utility, the decision in Rukmini Narvekar was decried to be of tenuous legality
since the Court in this case appears to have misemployed a standard laid down in the context of
inherent powers of the High Court, and proceeded to incorrectly conflate it with the powers of a court
while framing a charge, which was not warranted by the decision in Padhi. Though there seems to be no
intelligible differentia between the two situations; and there is no justifiable reason as to why the High
Court, acting under its Section 482 jurisdiction, can examine documents of unimpeachable character of
exculpatory nature, however, the Trial Court cannot.

Be that as it may, unless the Supreme Court equates the two, the law of the land remains like this: the
High Court exercising its wide inherent powers can rely upon documents or material advanced by
defence/accused of unimpeachable or sterling quality in proceedings under Section 482 CrPC. The same,
however, is not the case with the powers of a judge framing charge, in respect of which, guidelines have
been laid down in the form of the explicit text of the relevant provisions of the CrPC; reaffirmed by the
Supreme Court in Padhi.

This was noticed in Rukmini Narvekar itself, by Justice Altamas Kabir, who gave a 'concurring' opinion,
yet, a reading of the same shows that he held a diametrically opposite view from Justice Katju's opinion.
Rukmini Narvekar, therefore, is not a good authority for the proposition that defence material can be
taken into consideration at the stage of deciding the question of charge. The same was also not the
issue before the Court in that case, making its precedential value highly suspect.

Nitya Dharmananda: A possible reconciliation, and a progressive one

Which brings us to Nitya, which, in our opinion, stands on somewhat better legal ground. In this case, a
Bench of Justice U. U. Lalit and Justice Adarsh Kumar Goel were faced with the question as to whether
an Accused, before framing of charges, can file an application under Section 91 of the CrPC, with a view
to summon statements of witnesses and some documents collected in the course of investigation, but
not made a part of the Police Report. In this case, the said material (statements of witnesses
unfavorable to the Prosecution) was available with the police, however, had not been made part of the
Police Report. The High Court allowed the petition filed by the accused and directed the trial court to
summon the witness statements available with the police (and also directed the Trial Court to look into
the case diary to examine as to availability of other material that had been sought by the accused)
[Gopal Sheelum Reddy v. State of Karnataka, 2016 SCC OnLine Kar 8449]. The Supreme Court set aside
the High Court's judgment in appeal, holding that there was no right of accused under Section 91 to
summon material. However, the Court held that in the interest of a fair trial, the court in its discretion
may summon such material as has been withheld by the police and not made part of the charge sheet, if
it is of "sterling quality" and has a "crucial bearing" on framing of charge. The ruling goes like this:

"5. It is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section
91. However, the court being under the obligation to impart justice and to uphold the law, is not
debarred from exercising its power, if the interest of justice in a given case so require, even if the
accused may have no right to invoke Section 91. To exercise this power, the court is to be satisfied that
the material available with the investigator, not made part of the charge-sheet, has crucial bearing on
the issue of framing of charge.

(...)

8. Thus, it is clear that while ordinarily the Court has to proceed on the basis of material produced with
the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of
sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from
summoning or relying upon the same even if such document is not a part of the charge-sheet. It does
not mean that the defence has a right to invoke Section 91 CrPC dehors the satisfaction of the court, at
the stage of charge."

A possible reconciliation of Padhi and Nitya Dharmananda could be the usage of the word "ordinarily" in
the relevant passage of Padhi which laid down that an application under Section 91 cannot ordinarily be
used by Accused to summon defence material. The new dictum of there being (1) material withheld by
police/Prosecution, (2) said material being of sterling quality, and (3) said material having crucial bearing
on framing of charge, can then, indeed, be sourced to the law laid down by the Larger Bench in Padhi
allowing for such an observation, by saying Section 91 cannot ordinarily be used by accused for this
purpose. What would constitute the 'extraordinary' event in which Section 91 can so be used? The three
conditions enumerated in Nitya.

Though Nitya's compatibility with older judgments may be debatable, and there may be two views on
that, but we firmly believe that the judgment must still be lauded for recognizing that the imperatives of
fair trial demand that the Accused (who, unlike the Prosecution, does not have the wherewithal to
privately investigate and collect evidence) should be provided exculpatory material, which has been
collected by the Investigating Officer during investigation, and allow him to place reliance on the same
while arguing for a discharge. In the absence of strong disclosure requirements and discovery
proceedings written into the Code of Criminal Procedure itself, this judicial intervention was long due,
and would go a long way in making discharge proceedings more effective. Of course, this, by itself,
would not allow us to achieve the same levels of fair play that, for instance, the US system allows. Major
statutory overhauling would be required to introduce a right to cross-examine (at least the material
witnesses) at the stage of discharge, and to introduce defence witnesses.

However, the enormity of changes required and difficulties in implementation should not detain us from
aspiring-for what would definitely be a fairer system. We feel that the justification assigned for not
implementing such a system on account of courts being overburdened may not a good enough
justification to cut short valuable due process guarantees. A need for pragmatism, understandable as it
may be, must not take away from what the law ought to be. Until such statutory changes which
guarantee that benchmark of fairness, this decision does make the process a bit more fair and objective.

India: Acting In Dual Capacity- Barred By Law?

Last Updated: 26 June 2018

Article by Smrithi Arya

Selvam and Selvam

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As we all know, advocates and solicitors ought to obtain a power of attorney from their clients including
non-resident clients, in order to facilitate the Advocate's firm or Solicitor's firm to act in its professional
capacity for the client. Many times, besides acting as Constituted Attorneys i.e. power of attorney
holders, advocates also act as the advocates on record. The legal validity of this practice, which has
become customary, has been questioned and debated upon in various judgments.

The principal issue in this scenario is whether an advocate can act as a Constituted Attorney of a party,
and thereby be authorised to sign pleadings and affidavits on behalf of the suitor and also act and plead
for the party concerned in the same litigation proceeding.

The signature of the Constituted Attorney on pleadings, affidavits, vakalatnama and other documents is
liable to be equated to the signature of a party itself. But can this advocate who acts as a Constituted
Attorney of a suitor also act as an advocate on record for the same cause? Can he act in such dual
capacity?

This question was taken up in the case, Oil And Natural Gas Commission vs. Offshore Enterprises Inc.
[AIR 1993 Bom 217] wherein the Court answered in negative. The Court categorically held that a
Constituted Attorney is merely entitled to 'act' or 'appear' for the party but has no right to 'plead' in
Court.

Advocates or members of the Bar are governed by the provisions of the Advocates Act, 1961. Advocates
are deemed to be officers of the Court and therefore, ought to act with complete impartiality and
detachment and are not entitled to identify themselves with their clients or the cause personally
whereas a Constituted Attorney is entitled to identify himself with the donor of the Power of Attorney
and act in the same manner as the party is entitled to act. As per Order III Rule 4 of the Code of Civil
Procedure, a vakalatmana should be signed by the party or by his recognised agent in favour of the
pleader. The Court held that it is a well-settled principle that the pleader acting in his capacity as
Constituted Attorney of a litigant cannot sign such vakalatnama in his own favour as an Advocate or in
favour of the firm in which he himself is one of the partners.

When Affidavits are filed under Order XIX Rule 2 of the Code of Civil Procedure by the Constituted
Attorney, he can be summoned by the Court for cross-examination. In such cases, the very possibility of
an advocate who is holding a power of attorney being summoned as witness sufficiently implies that the
law prohibits advocates acting in dual capacity.

Therefore, the proposition to be understood here is that a recognized agent of a suitor is on par with the
party himself whereas an advocate is an independent person whose duty is to assist the Court in its task
of administering justice. The law does not permit an advocate to act in such dual capacity because an
advocate's necessary traits such as detachment and impartiality are likely to be jeopardised when he
acts in both capacities. Furthermore, it is not sufficient that an advocate acts impartially, it is also
necessary that he appears to act impartially.

A plausible solution to overcome this issue can be inferred from the 2001 case, Columbia Pictures
Industries vs. Siti Cable Network Ltd. [94 (2001) DLT 177]. Two advocates cannot be said to be acting in
dual capacity, if the identity and roles of the two advocates are clearly distinct and do not merge at any
moment. A Constituted Attorney can appoint another advocate to plead on behalf of the party. This
advocate shall not be associated with the Constituted Attorney's firm. However, he or she may not be
said to be acting in dual capacity merely because they share the same address. If it is possible to prove
that the advocate is not a partner in the Constituted Attorney's firm or working for the Constituted
Attorney's firm, the issue of dual capacity can be overcome.

Therefore, though the existing practice followed by the law firms in case of non-resident clients, acting
in dual capacity is barred by law and ought to be discontinued, the law does not bar an independent
advocate who is not associated with the law firm or not on the payroll of the law firm but using the law
firm's address, from pleading on behalf of the clients.