# 10 S.C.R. 641 V.K. SASIKALA v. STATE REP. BY SUPERINTENDENT OF POLICE

- **Citation:** [2012] 10 S.C.R. 641
- **Court:** Supreme Court of India
- **Decided:** 2012-09-27
- **Case number:** Criminal Appeal No. 1497 of 2012
- **Bench:** P. Sathasivam, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-641-v-k-sasikala-v-state-rep-by-superintendent-of-police-27968
- **Pages:** 31

## Headnote

A
B
Criminal Jurisprudence - Criminal Trial - Right of the
accused -
To demand certified copies! inspection of
unmarked and un-exhibited documents not relied upon by the C
prosecution but in custody of the court - Held: One of the
established facets of a just, fair and transparent investigation
is the right of an accused to ask for all such documents that
he may be entitled to, under the scheme contemplated by
CrPC - Absence of any claim on the part of the accused to D
the said documents at any earlier point of time cannot have
the effect of foreclosing such a right of the accused - 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 E
same favours the accused, the court must concede a right to
the accused to have an access to the said documents, if so
claimed - In the case at hand, it was the specific contention
of accused-appellant that in course of her examination uls.
313 CrPC a perception had developed that she may be giving F
incomplete/incorrect answers in response to the questions put
to her by the Court and that she needed copies of the
documents or at least an opportunity of inspection of the same
to enable her to provide effective answers and to appropriately
prepare her defence - Any failure on the part of the appellant G
to put forward her version of the case in her examination ul
s.313 CrPC may have the effect of curtailing her rights in the
event she chooses to take up a specific defence and examine
defence witnesses - Besides, answers given by the appellant
641
H
642
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
in her examination, if incorrect or incomplete, may have the
effect of strengthening the prosecution case against her -
Appellant accordingly directed to be allowed inspection of the
unmarked/ un-exhibited documents in custody of the court in
the criminal trial pending against her - Code of Criminal
s Procedure, 1973 - ss. 313, 207 and 173 - Constitution of
India, 1950 - Article 21.
Criminal Trial - Investigation - Power and duty of the
Investigating Officer (10) - Held: A duty is cast on the 10 to
evaluate the two sets of documents and materials collected
C i.e. those in favour of accused and those in support of the
prosecution - However, it is not impossible to visualize a
situation where the 10 ignores the part of the seized
documents which favour the accused and forwards to the
Court only those documents which support the prosecution.
D
Code of Criminal Procedure, 1973 -
s.313 -
Examination of an accused undsr -Held: Has a fair nexus
with the defence that the accused may choose to bring, if the
need arises - Such examination not only provides the
E accused an opportunity to explain the incriminating
circumstances appearing against him in the prosecution
evidence but also permits him to put forward his own version,
if he so chooses, with regard to his involvement or otherwise
in the crime alleged against him.
F
A criminal case was pending against the appellant
and three other accused before the trial court under
Section 1208 !PC and Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988. While
the examination of appellant under Section 313 CrPC was
G midway, she filed an application seeking certified copies
of certain unmarked and unexhibited documents in the
custody of the court on being so forwarded alongwith
the report of investigation under Section 173(5) CrPC. The
application was dismissed by the trial court. The order
H was upheld by the High Court. The appellant then filed
V.K. SASIKALA v. STATE REP. BY
643
SUPERINTENDENT OF POLICE
another application before the trial court, this time,
A
seeking an inspection of the said unmarked and
unexhibited documents. This application too was
rejected by the trial court, and again this order was
upheld by the High Court.
The orders passed by the High Court upholding the
B
rejection of two separate appl

## Text

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[2012) 10 S.C.R. 641
V.K. SASIKALA
v.
STATE REP. BY SUPERINTENDENT OF POLICE
(Criminal Appeal No. 1497 of 2012)
SEPTEMBER 27, 2012
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]
A
B
Criminal Jurisprudence - Criminal Trial - Right of the
accused -
To demand certified copies! inspection of
unmarked and un-exhibited documents not relied upon by the C
prosecution but in custody of the court - Held: One of the
established facets of a just, fair and transparent investigation
is the right of an accused to ask for all such documents that
he may be entitled to, under the scheme contemplated by
CrPC - Absence of any claim on the part of the accused to D
the said documents at any earlier point of time cannot have
the effect of foreclosing such a right of the accused - 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 E
same favours the accused, the court must concede a right to
the accused to have an access to the said documents, if so
claimed - In the case at hand, it was the specific contention
of accused-appellant that in course of her examination uls.
313 CrPC a perception had developed that she may be giving F
incomplete/incorrect answers in response to the questions put
to her by the Court and that she needed copies of the
documents or at least an opportunity of inspection of the same
to enable her to provide effective answers and to appropriately
prepare her defence - Any failure on the part of the appellant G
to put forward her version of the case in her examination ul
s.313 CrPC may have the effect of curtailing her rights in the
event she chooses to take up a specific defence and examine
defence witnesses - Besides, answers given by the appellant
641
H
642
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
in her examination, if incorrect or incomplete, may have the
effect of strengthening the prosecution case against her -
Appellant accordingly directed to be allowed inspection of the
unmarked/ un-exhibited documents in custody of the court in
the criminal trial pending against her - Code of Criminal
s Procedure, 1973 - ss. 313, 207 and 173 - Constitution of
India, 1950 - Article 21.
Criminal Trial - Investigation - Power and duty of the
Investigating Officer (10) - Held: A duty is cast on the 10 to
evaluate the two sets of documents and materials collected
C i.e. those in favour of accused and those in support of the
prosecution - However, it is not impossible to visualize a
situation where the 10 ignores the part of the seized
documents which favour the accused and forwards to the
Court only those documents which support the prosecution.
D
Code of Criminal Procedure, 1973 -
s.313 -
Examination of an accused undsr -Held: Has a fair nexus
with the defence that the accused may choose to bring, if the
need arises - Such examination not only provides the
E accused an opportunity to explain the incriminating
circumstances appearing against him in the prosecution
evidence but also permits him to put forward his own version,
if he so chooses, with regard to his involvement or otherwise
in the crime alleged against him.
F
A criminal case was pending against the appellant
and three other accused before the trial court under
Section 1208 !PC and Section 13(2) read with Section
13(1)(e) of the Prevention of Corruption Act, 1988. While
the examination of appellant under Section 313 CrPC was
G midway, she filed an application seeking certified copies
of certain unmarked and unexhibited documents in the
custody of the court on being so forwarded alongwith
the report of investigation under Section 173(5) CrPC. The
application was dismissed by the trial court. The order
H was upheld by the High Court. The appellant then filed
V.K. SASIKALA v. STATE REP. BY
643
SUPERINTENDENT OF POLICE
another application before the trial court, this time,
A
seeking an inspection of the said unmarked and
unexhibited documents. This application too was
rejected by the trial court, and again this order was
upheld by the High Court.
The orders passed by the High Court upholding the
B
rejection of two separate applications made by the
appellant for certified copies I inspection of certain
unmarked and unexhibited documents in the trial
pending against her, were challenged in the instant C
appeals. The appellant contended that the conduct of
the prosecution in not marking and exhibiting certain
documents only indicate that the same do not support
the prosecution case and in fact may assist the defence
of the accused; that the appellant had sought copies/
inspection of such documents so as to be in a position
D
to assess as to which of the documents can come to the
aid of her defence so that the answers given by her in
her examination under Section 313 CrPC can be
projected without reflecting any inconsistency with the
defence that may be adduced and that the right of the
E
appellant to copies or, at least, to an inspection of the
documents constituted a part of the larger right of the
appellant to a fair trial of the charges levelled against her.
Disposing of the appeals, the Court
F
HELD:1.1. Section 173(5) CrPC makes it incumbent
on the Investigating agency to forward/transmit to the
concerned court all documents/statements etc. on which
the prosecution proposes to rely in the course of the trial.
Section 173(5), however, is subject to the provisions of G
Section 173(6) which confers a power on the
investigating officer to request the concerned court to
exclude any part of the statement or documents
forwarded under Section 173(5) from the copies to be
granted to the accused. [Para 11] [658-D-F]
H
644
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
1.2. While the first proviso to Section 207 CrPC
empowers the court to exclude from the copies to be
furnished to the accused such portions as may be
covered by Section 173(6), the second proviso to Section
207 empowers the court to provide to the accused an
B inspection of the documents instead of copies thereof,
if, in the opinion of the court it is not practicable to furnish
to the accused, the copies of the documents because of
the voluminous content thereof. [Para 12] [659-D-E]
1.3. Though it is only such reports which support the
C prosecution case that are required to be forwarded to the
Court under Section 173(5) CrPC in every situation where
some of the seized papers and documents do not
support the prosecution case and, on the contrary,
supports the accused, a duty is cast on the Investigating
D Officer to eval.uate the two sets of documents and
materials collected and, if required, to exonerate the
accused at that stage itself. However, it is not impossible
to visualize a situation where the Investigating Officer
ignores the part of the seized documents which favour
E the accused and forwards to the Court only those
documents which support the prosecution. [Para 14]
[660-G-H; 661-A]
1.4. In the case herein, evidently the unmarked and
F unexhibited documents of the case that are being
demanded by the accused had been forwarded to the
Court under Section 173 (5) but are not being relied upon
by the prosecution. The said unmarked and unexhibited
documents are presently in the custody of the Court.
G [Para 14] [661-C-E]
2.1. It is the responsibility of the investigating agency
as well as that of the courts to ensure that every
investigation is fair and does not erode the freedom of
an individual except in accordance with law. One of the
H established facets of a just, fair and transparent
V.K. SASIKALA v. STATE REP. BY
645
SUPERINTENDENT OF POLICE
investigation is the right of an accused to ask for all such
A
documents that he may be entitled to under the scheme
contemplated by the Code of Criminal Procedure. [Para
15) [662-B-D]
B
2.2. A perception of possible prejudice, if the
documents or at least an inspection thereof is denied,
looms large. The absence of any claim on the part of the
accused to the said documents at any earlier point of time
cannot have the effect of foreclosing such a right of the
accused. Absence of such a claim, till the time when
raised, can be understood and explained in several
C
reasonable and acceptable ways. Individual notion of
prejudice, difficulty or handicap in putting forward a
defence would vary from person to person and there can
be no uniform yardstick to measure such perceptions. If
the appellant has perceived certain difficulties in
D
answering or explaining some part of the evidence
brought by the prosecution on the basis of specific
documents and seeks to ascertain if the allegedly
incriminating tiocuments can be better explained by
reference to some other documents which are in the
court's custody, an opportunity must be given to the
accused to satisfy herself in this regard. It is not for the
prosecution or for the Court to comprehend the prejudice
that is likely to be caused to the accused. The perception
E
of prejudice is for the accused to develop and if the same
F
is founded on a reasonable basis it is the duty of the
Court as well as the prosecution to ensure that the
accused should not be made to labour under any such
perception and the same must be put to rest at the earliest.
Such a view is an inalienable attribute of the process of G
a fair trial that Article 21 guarantees to every accused.
[Para 16) [666-B-G]
2.3. 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 H
646
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A 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
B to the said documents, if so claimed. This is the core
issue in the case which must be answered affirmatively.
It is difficult to agree with the view 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
c raised. Such a plea must be answered at the earliest and
certainly before the conclusion of the trial, even though
it may be raised by the accused belately. This is how the
scales of justice in our Criminal Jurisprudence have to
be balanced. [Para 17] [667-8-E]
D
Sidhartha Vashisht alias Manu Sharma vs. State (NCT)
E
of Delhi (2010) 6 SCC 1: 2010 (4) SCR 103 - relied on.
Sanatan Naskar and another vs. State of West Bengal
(201 O) s sec 249 - cited.
3.1. There is yet another possible dimension of the
case. It is the specific contention of the accused in both
the applications dated 29.3.2012 (for certified copies of
the unmarked documents) and 18.4.2012 (for inspection)
that it is in the course of the examination of the accused
F under Section 313 CrPC that a perception had developed
that the accused may be giving incomplete/ incorrect
answers in response to the questions put to her by the
Court and that she needs copies of the documents or at
least an opportunity of inspection of the same to enable
G her to provide effective answers and to appropriately
prepare her defence. The examination of an accused
under Section 313 Cr.P.C. not only provides the accused
an opportunity to explain the incriminating circumstances
appearing against him in the prosecution evidence tSut
H such examination also permits him to put forward his
V.K. SASIKALA v. STATE REP. BY
647
SUPERINTENDENT OF POLICE
own version, if he so chooses, with regard to his
A
involvement or otherwise in the crime alleged against
him. Viewed from the latter point of view, the examination
of an accused under Section 313 Cr.P.C. does have a fair
nexus with the defence that he may choose to bring, if
the need arises. Any failure on the part of the accused to
B
put forward his version of the case in his examination
under Section 313 Cr.P.C. may have the effect of curtailing
his rights in the event the accused chooses to take up a
specific defence and examine defence witnesses.
Besides, the answers given by the accused in his c
examination, if incorrect or incomplete, may also
jeopardise him as such incorrect or incomplete answers
may have the effect of strengthening the prosecution
case against the accused. [Paras 18, 19] [667-E-G; 668A-D]
D
3.2. In view of the avowed purport and object of the
examination of an accused under Section 313 CrPC, the
appellant cannot be denied access to the documents in
respect of which prayers have been made in the
applications dated 29.3.2012 (for certified copies of the
E
unmarked documents) and dated 18.4.2012 (for
inspection) before the trial Court. While the anxiety to
bring the trial to its earliest conclusion has to be shared,
it is fundamental that in the process, none of the well
entrenched principles of law that have been laboriously
F
built by illuminating judicial precedents is sacrificed or
compromised. In no circumstance, the cause of justice
can be made to suffer, though, undoubtedly, it is highly
desirable that the finality of any trial is achieved in the
quickest possible time. In order to balance the need to G
bring the prosecution in the present case to its earliest
conclusion and at the same time to protect and preserve
the right of the accused to a fair trial, and to take care of
the conflicting interests that had surfaced in the present
case, the appellant is directed to be allowed an inspection
H
648
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A of the unmarked and unexhibited documents referred to
by her in the application dated 29.3.2012. [Para 20) [670A-E]
B
c
Manu Sao VS. State of Bihar (2010) 12 sec 310 - relied
on.
Case Law Reference:
2010 (4) SCR 103
relied on
Para 9
c201 O) s sec 249
cited
Para 9
c2010) 12 sec 310
relied on
Para 19
CRIMINAL APPELATE JURISDICTION: Criminal Appeal
No. 1497 of 2012.
From the Judgment & Order dated 28.5.2012 of the High
D Court of Karnataka at Bangalore in Criminal Petition No. 2483
of 2012.
E
WITH
Crl.A.No. 1498/2012
Shekhar Naphade, V. Giri, Rakesh Dwivedi, R.
Venkataramani, T.R. Andhiyarujina, Shunmugasundaram,
Senthil, Mani Shankar, A. Ashokan, M.P. Parthiban, S.R. Setia,
B. Balaji, V.G. Pragasam, S.J. Aristotle, Prabu Rama
F
Subramanian, Soumik Ghosal for the appearing parties.
The Judgment of the Court was delivered by
RANJAN GOGOi, J. 1. Leave granted.
2. Two orders of the High Court of Karnataka dated 16th
G April, 2012 and 28th May, 2012 upholding the rejection of two
separate applications made by the appellant herein for certified
copies or in the alternative for inspection of certain unmarked
and unexhibited documents in a trial pending against her is the
subject matter of challenge in the appeals under consideration.
H
V.K. SASIKALA v. $TATE REP. BY
649
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
The facts leading to the applications filed before the learned
A
trial court and the grounds of rejection being largely similar both
the appeals were heard analogously.
3. A convenient staring point for the required narration of
the relevant facts could be the order of this court dated 18th
November, 2003 passed in Transfer Petitions (Criminal)
B
Nos.77-78 of 2003 (K. Anbazhagan vs. Superintendent of
Police and others1). By the aforesaid order dated 18th
November, 2003 this court had transferred the proceeding in
CC No.7of1997 from the court of the 11th Additional Sessions
Judge (Special Court No.1), Chennai to a Special Court in
C
Bangalore to be constituted by the State of Karnataka in
consultation with the Chief Justice of the High Court of
Karnataka. The appellant before us is the second accused in
the aforesaid transferred proceeding which has been registered
as Spl. CC.No.208 of 2004 and is presently pending in the
D
court of the 36th Additional Sessions Judge and Special
Judge, Bangalore. It may also b~ noticed that along with CC
No. 7 of 1997 there was another proceeding i.e. CC No. 2 of
2001 pending in the file of the same court, i.e. 11th Additional
Sessions Judge (Special Court No.1 ), Chennai against the
E
same accused which was also transferred to the Special Court
in Bangalore by the order dated 18th November, 2003.
However, the said proceeding would not be of any relevance
at the present stage as the chargesheet in the said case has
since been withdrawn and the matter stands closed.
F
4. The transfer of CC No. 7 of 1997 and CC No. 2 of 2001
from the court at Chennai was sought by one Shri K.
Anbazhagan, General Secretary of DMK Party, a recognised
political party in the State of Tamil Nadu. In case No.CC No. 7
G
of 1997 then pending in the competent court at Chennai
allegations of commission of offences under Section 1208 of
the Indian Penal Code and Section 13(2) read with Section
13(1) (e) of the Prevention of Corruption Act, 1988 were made
1.
c2004) 3 sec 767.
H
650
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A against the present appellant who was arrayed as the second
accused in the case and also against one Smt. J. Jayalalitha,
who was arrayed as the first accused. There were two other
accused in the aforesaid proceeding, namely, accused No.3
and 4, who are relatives 'of the present appellant, i.e., accused
B No.2. The offences alleged arose out of certain acts and
omissions attributed to the accused during the period 19911996 when the first accused was the Chief Minister of the State
which office she had demitted after the General Elections held
in the State in 1996. According to the petitioner in the Transfer
C Petitions, chargesheet in the aforesaid case had been filed on
21st October, 1997 and more than 250 prosecution witnesses
had been examined by the end of August, 2000. The accused
No.1, once again, became the Chief Minister of the State
following the General Elections held in May, 2001. Though the
0
appointment of the first accused as the Chief Minister was
nullified by this court and the accused ceased to be Chief
Minister, w.e.f., 21st September, 2001, she was elected to the
State assembly in a by-election held on 21st February, 2002
and was, once again, sw_orn in as the Chief Minister of the State
on 2nd March, 2002. It was stated in the Transfer Petitions that,
E thereafter, the course of trial of CC.No. 7 of 1997 took a peculiar
turn and a large number of prosecution witnesses (76 in all) who
had been discharged were recalled without any objection of the
public prosecutor. 64 of such witnesses resiled from their earlier
versions tendered in court. It was also alleged that none of
F these witnesses were declared hostile by the public prosecutor.
Furthermore, according to the petitioner, the presence of the
first accused in court for her examination under Section 313
Cr.P.C. was dispensed with and, instead, a questionnaire was
sent to the first accused to which she had responded. It is in
G these circumstances that the Transfer Petitions were filed
before this Court.
5. Transfer Petitions Nos.77-78 of 2003 were allowed by
the order of this court dated 18th November, 2003 with certain
H directions. To recapitulate the said directions, Paragraph 34 of
V.K. SASIKALA v. STATE REP. BY
651
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
the judgment of this court may be extracted:
M
"34. In the result, we deem it expedient for the ends of
justice to allow these petitions. The only point that remains
to be considered now is to which State the cases should
be transferred. We are of the view that for the convenience
B
of the parties the State of Karnataka would be most
convenient due to its nearness to Tamil Nadu. Accordingly,
the petitions are allowed. CC No. 7 of 1997 and CC No.
2 of 2001 pending on the file of the Xlth Additional
Sessions Judge (Special Court No. 1), Chennai in the
C
State of Tamil Nadu shall stand transferred with the
following directions:
(a) The State of Karnataka in consultation with the
Chief Justice of the High Court of Karnataka shall
constitute a Special Court under the Prevention of D
Corruption Act, 1988 to whom CC No. 7 of 1997
and CC No. 2 of 2001 pending on the file of the Xlth
Additional Sessions Judge (Special Court No. 1),
Chennai in the State of Tamil Nadu shall stand
transferred. The Special Court to have its sitting in
E
Bangalore.
(b) As the matter is pending since 1997 the State
of Karnataka shall appoint a Special Judge within
a month from the date of receipt of this order and
the trial before the Special Judge shall commence
as soon as possible and will then proceed from day
to day till completion.
F
(c) The State of Karnataka in consultation with the
Chief Justice of t'1e High Court of Karnataka shall
G
appoint a senior lawyer having experience in
criminal trials as Public Prosecutor to conduct these
cases. The Public Prosecutor so appointed shall be
entitled to assistance of another lawyer of his
choice. The fees and all other expenses of the
H
A
B
c
D
E
F
G
H
652
SUPREME COURT REPORTS
[2012) 10 S.C.R.
Public Prosecutor and the Assistant shall be paid
by the State of Karnataka who will thereafter be
entitled to get the same reimbursed from the State
of Tamil Nadu. The Public Prosecutor to be
appointed within six weeks from today.
(cf) The investigating agency is directed to render
all assistance to the Public Prosecutor and his
Assistant.
(e) The Special Judge so appointed to proceed
with the cases from such stage as he deems fit and
proper and in accordance with law.
('f) The Public Prosecutor will be at liberty to apply
that the witnesses who have been recalled and
cross-examined by the accused and who have
resiled from their previous statement, may be again
·recalled. The Public Prosecutor would be at liberty
to apply to the court to have these witnesses
declared hostile and to seek permission to crossexamine them. Any such application if made to the
Special Court shall be allowed. The Public
Prosecutor will also be at liberty to apply that action
in perjury to be taken against some or all such
witnesses. Any such application(s) will be
undoubtedly considered on its merit(s).
(g) The State of Tamil Nadu shall ensure that all
documents and records are forthwith transferred to
the Special Court on its constitution. The State of
Tamil Nadu shall also ensure that the witnesses are
produced before the Special Court whenever they
are required to attend that court.
(h) In case any witness asks for protection, the
State of Karnataka shall provide protection to that
witness.
V.K. SASIKALA v. STATE REP. BY
653
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
(1) The Special Judge shall after completion of
A
evidence put to all the accused all relevant evidence
and documents appearing against them whilst
recording their statement under Section 313. All the
accused shall personally appear in court, on the day
they are called upon to do so, for answering
B
questions under Section 313 of the Criminal
Procedure Code.
These petitions are allowed in the above terms."
6. Though a detailed recital will not be necessary it
appears that notwithstanding the above directions of this court
not much progress has been achieved to bring to trial in Special
CC No. 208 of 2004 to its logical conclusion. Soon after the
proceedings were transferred to the Special Court at Bangalore
an order dated 27th June, 2005 was passed by the learned trial
court for clubbing of the two cases. This order came to be
challenged before this court by the petitioner in the Transfer
Petitions, i.e. Shri K. Anbazihagan and until the Special Leave
Petition filed (SLP No.3828/2005) was disposed of on 22nd
January, 2010 the criminal proceedings had remained stayed.
It also appears that from time to time applications had been
filed before the learned trial court by one or the accused raising
different interlocutory issues and also seeking to vindicate
different facets of the right of the accused to a free and fair trial.
Such applications, inter alia, were for translation of depositions
of prosecution witnesses running into thousands of pages; for
corrections in such translations; for appointment or assistance
of an interpreter and such are the incidental matters. The orders
passed by the trial court on all such applications invariably
came to be challenged before the High Court and even before
this court. On several of such occasions the trial came to be
halted due to interim orders passed by different courts.
Consequently, as on date the examination of the appellant
(accused No.2) under Section 313 Cr.P.C. is going on, the
same having commenced on 18th February, 2012. While such
c
D
E
F
G
H
654
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A examination of the appellant was midway and she had
answered over 500 questions out of the contemplated double
the number, an application dated 16th April, 2012 was filed by
the appellant before the learned trial court seeking certified
copies of certain unmarked and unexhibited documents which
B were claimed to be in the custody of the court on being so
forwarded alongwith the report of investigation under Section
173(5) Cr.P.C. The learned trial court dismissed the said
application by its order 3rd April, 2012, whereafter, the High
Court of Karnataka was approached by means of Criminal
c Petition No.1840 of 2012. The petition having been dismissed
by the High Court on 16th April, 2012, the appellant forthwith
filed another application before the learned trial court, this time,
seeking an inspection of the said unmarked and unexhibited
documents in respect of which the earlier application was filed
D but rejected. This application was also rejected by the learned
trial court by its order dated 21st April, 2012 which led to the
inception of Criminal Petition No.2483 of 2012 in the High Court
which was dismissed on 28th May, 2002 . The said order dated
28th May, 2012 as well as the earlier order dated 16th April,
E 2012 of the High Court have been challenged before this court
in the present appeals.
7. A reading of the orders passed by the learned trial court
on the applications filed by the present appellant as well as the
two separate orders passed by the High Court affirming the
F orders of the trial court would go to show that the grounds that
found favour with the learned courts to reject the prayer made
by the appellant are largely similar. It is the view of the learned
trial court as well as the High Court that in the present case the
charges against the appellant were framed way back in the
G year 2007. At the time of the framing of the charge the court is
required to satisfy itself that all papers, documents and
statements required to be furnished to the accused under
Section 207 Cr.P.C. have been so furnished. No grievance in
this regard was raised by the appellant or any of the accused.
H The issue was also not raised at any point of time in the course
V.K. SASIKALA v. STATE REP. BY
655
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
of examination of any of the prosecution witnesses (over 250 A
witnesses had been examined). It has also been expressed by
the High Court that though the appellant had answered over 532
questions in her examination under Section 313 Cr.P.C. no
grievance was raised or any prejudice claimed by the appellant
at any earlier point of time. It is also the view of the High Court s
that non furnishing of the copies of the documents or not
conceding to the prayer for inspection will not automatically
render the prosecution bad in law in as much as the effect of
such action must result in prejudice to the accused which
question can well be decided when the matter is being c
considered on merits. The High Court also took the view that
the documents, copies or inspection of which was sought, being
unmarked and unexhibited documents, objections can always
be raised if the accused is to be questioned in connection with
such documents in her examination under section 313 Cr.P.C.
0
In addition to the above, the High Court was of the view that
this court having passed clear directions in its order dated 18th
November, 2003 that the criminal proceedings against the
accused should be brought to its earliest conclusion by
conducting the trial on day to day basis, the filing of the
applications for certified copies/inspection of the unmarked and
E
unexhibited documents constitute another attempt on the part
of the appellant to over reach the order of this court and delay
the trial. It is the correctness of the reasons assigned by the
High Court for ultimate conclusions reached by it that has been
assailed before us in the present appeals.
F
8. We have heard Shri Shekhar Naphade and Shri V.Giri,
learned senior counsel for the appellant and Shri Rakesh
Dwivedi, learned senior counsel for the respondent. We have
also heard Shri T.R. Andhiyarujina, learned senior counsel G
appearing for the applicant Shri K.Anbazhagan, General
Secretary, DMK Party, who has sought impleadment in the
present proceedings. The learned senior counsel had been
heard, primarily, on the prayer for impleadment, in the course
of which, naturally, he was permitted to traverse the relevant H
656
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
facts of the case. Upon hearing the learned senior counsel we
do not consider it necessary to pass any specific order on the
impleadment application as we are finally disposing both the
appeals by the present order.
8
9. Learned counsel for the appellant have vehemently
contended that from the objections filed to the applications
seeking certified copies or an inspection of the unmarked and
unexhibited documents as well as from the orders of the learned
trial courtpassed on the said applications it is clear that out of
the papers forwarded to the court under Section 173(5) Cr.P.C.
C
alongwith the report of investigation some documents have
been marked and exhibited by the prosecution while some
other documents have not been so utilised. As all such
documents had been forwarded to the court upon completion
of investigation the unmarked and unexhibited documents are
D
in the custody of the court. According to the learned counsel,·
the appellant in her application to the learned trial court (IA
No.711/2012) had set out a complete list of the unmarked
documents mentioning the particulars of the search lists by
which the! documents were seized in the course of investigation.
E
Learned counsel has further argued that the conduct of the
prosecution in not marking and exhibiting the said documents
can only indicate that the same do not support the prosecution
case and in fact may assist the defence of the accused. As the
answers to the questions put to the accused under Section 313
F
are capable of being relied upon against or in favour of the
accused, the appellant had sought copies/inspection of such
documents so as to be in a position to assess as to which of
the documents can come to the aid of her defence so that the
answers given by her in her examination under Section 313
G Cr.P.C. can be projected without reflecting any inconsistency
with the defence that may be adduced. The attention of the court
has also been drawn to an affidavit filed by the petitioner
· pinpointing as to how some of the documents could be relevant
to certain specific questions put to the appellant in the course
H
of her examination under Section 313 Cr.P.C. In fact, according
V.K. SASIKALA v. STATE REP. BY
657
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
to the learned counsel the right of the appellant to copies or,
A
at least, to an inspection of the documents constitute a part of
the larger right of the appellant to a fair trial of the charges
levelled against her. RelianGe has been placed on the decisions
of this court in Sidhartha l/ashisht alias Manu Sharma vs.
State (NCT) of DelhP, Sanatan Naskar and another vs. State B
of West BengaP and Manu Sao vs. State of Bihar4.
10. On the other hand, learned counsel for the State has
contended that when the documents copies or inspection of
which has been sought are not being relied on by the
prosecution, in any manner, to bring home the charge against C
the appellant it is not open for the appellant to insist on any right
to the copies of such documents or to inspect the same. It is
urged that the documents relevant to the charge had been
furnished to the appellant under Section 207at the appropriate
stage of the proceeding and also that such documents had D
been duly considered at the time of framing of charges. No
issue in this regard was raised by the appellant at any earlier
point of time. In fact, though different objections to various other
facets of the trial were raised by the appellant from time to time
. by filing repeated/successive applications it is only when the
E
examination of the appellant under Section 313 Cr.P.C. had
reached a fairly advanced stage that the present applications
have been filed. Both the applications, therefore, are in utter
abuse of the process of law and being calculated only to delay
the trial the same have been rightly rejected by the learned trial
F
courtwhich orders have been affirmed by the High Court.
Learned counsel has also pointed out that the contention to the
effect that the documents are required to enable the appellant
to prepare her defence is wholly untenable as the said stage
would arise only after the examination of all the accused under G
Section 313 Cr.P.C. is complete.
2.
(2010) a sec 1.
3.
(2010) a sec 249.
4.
(2011) 1 sec 310
H
658
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
11. The parameters governing the process of investigation
of a criminal charge; the duties of the investigating agency and
the role of the courts after the process of investigation is over
and a report thereof is submitted to the court is exhaustively
laid down in the different Chapters of the Code of Criminal
B
Procedure, 1973 (Cr.P.C.). Though the power of the
investigating agency is large and expansive and the courts have
a minimum role in this regard there are inbuilt provisions in the
Code to ensure that investigation of a criminal offence is
conducted keeping in mind the rights of an accused to a fair
C
process of investigation. The mandatory duty cast on the
investigating agency to maintain a case diary of every
investi~iation on a day to day basis and the power of the court
under Section 172 (2) and the plenary power conferred in the
High Courts by Article 226 the Constitution are adequate
0
safeguards to ensure the conduct of a fair investigation. Without
dilating on the said aspect of the matter what has to be taken
note of now are the provisions of the Code that deal with a
situation/stage after completion of the investigation of a case.
In this regard the provisions of Section 173 (5) may be
specifically noted. The said provision makes it incumbent on
E
the Investigating agency to forward/transmit to the concerned
court all documents/statements etc. on which the prosecution
proposes to rely in the course of the trial. Section 173(5),
however, is subject to the provisions of Section 173(6) which
confers a power on the investigating officer to request the
F
concerned court to exclude any part of the statement or
documents forwarded under Section 173(5) from the copies to
be granted to the accused. The court having jurisdiction to deal
with the matter, on receipt of the report and the accompanying
documents under Section 173, is next required to decide as
G to whether cognizance of the offence alleged is to be taken in
which event summons for the appearance of the accused before
the court is to be issued. On such appearance, under Section
207 Cr.P.C., the concerned court is required to furnish to the
accused copies of the following documents:
H
V.K. SASIKALA v. STATE REP. BY
659
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
(i)
The police report;
A
(ii)
(iii)
The first information report recorded under section
154;
The statements recorded under sub-section (3) of
section 161 of all persons whom the prosecution
8
proposes to examine as its witnesses, excluding
therefrom any part in regard to which a request for
such exclusion has been made by the police officer
under sub-section (6) of section 173;
c
(iv)
The confessions and statements, if any, recorded
under section 164;
(v)
Any other document or relevant extract thereof
forwarded to the Magistrate with the police report
0
under sub-section (5) of section 173.
12. While the first proviso to Section 207 empowers the
court to exclude from the copies to be furnished to the accused
such portions as may be covered by Section 173(6), the second
proviso to Section 207 empowers the court to provide to the
E
accused an inspection of the documents instead of copies
thereof, if, in the opinion of the court it is not practicable to
furnish to the accused the copies of the documents because
of the voluminous content thereof. We would like to emphasise,
at this stage, that while referring to the aforesaid provisions of
F
the Code, we have deliberately used the expressions "court"
instead of the expression "Magistrate" as under various special
enactments the requirement of commitment of a case to a
higher court (court of Sessions) by the Magistrate as mandated
by the Code has been dispensed with and the special courts
G
constituted under a special statute have been empowered to
receive the report of the investigation along with the relevant
documents directly from the investigating agency and thereafter
to take cognizance of the offence, if so required.
H
660
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
13. It is in the context of the above principles of law and
the provisions of the Code that the rights of the appellant will
have to be adjudicated upon by us in the present case. It is not
in dispute that after the appearance of the accused in the Court
of the Special Judge a large number of documents.forwarded
B to the Court by the Investigating Officer along with his report,
had been furnished to the accused. Thereafter, charges against
the accused had been framed way back in the year 2007 and
presently the trial has reached the stage of examination of the
second accused, i.e. appellant under the provisions of Section
c 313 Cr.P.C. At no earlier point of time (before the examination
of the second accused under Section 313 Cr.P.C.) the accused
had pointed out that there are documents in the Court which
have been forwarded to it under Section 173 (5) and which
have not been relied upon by the prosecution. It is only at such
0
an advanced stage of the trial that the accused, after pointing
out the said facts, had claimed an entitlement to copies of the
said documents or at least an inspection of the same on the
ground that the said documents favour the accused.
14. Seizure of a large number of documents in the course
E of investigation of a criminal case is a common feature. After
completion of the process of investigation and before
submission of the report to the Court under Section 173
Cr.P.C., a fair amount of application of mind on the part of the
investigating agency is inbuilt in the Code. Such application of
F mind is both with regard to the specific offence(s) that the
Investigating Officer may consider to have been committed by
the accused and also the identity and particulars of the specific
documents and records, seized in the course of investigation,
which supports the conclusion of the Investigating Officer with
G regard to the offence(s) allegedly committed. Though it is only
such reports which support the prosecution case that are'
required to be forwarded to the Court under Section 173 (5) in
every situation where some of the seized pap,ers and
documents do not support the prosecution case and, on the
H contrary, supports the accused, a duty is cast on the
V.K. SASIKALA v. STATE REP. BY
661
SUPERINTENDENT OF POLICE [RANJAN GOGOi, J.]
Investigating Officer to evaluate the two sets of documents and
A
materials collected and, if required, to exonerate the accused
at that stage itself.