Can the Supreme Court of India get the bare text of a provision wrong? To err is human, but when the judges of the top court in our country go wrong with something as basic as the words of a statute, it definitely cannot be overlooked as a mere error. It is one thing to interpret the provisions of a law and another to conjure up something in place of the black letters of law. No constitutional lens empowers a judge to read black as orange.
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TRANSFORMATIVE constitutionalism requires the Justices of the Supreme Court to interpret black letters of law and give meaning to them in accordance with constitutional values but not read those letters of law otherwise from the statute book.
When judges go wrong with an entire provision of one of the most important laws of the land, i.e., the Criminal Procedure Code, 1973 (CrPC), it cannot be dismissed as a mere inadvertent error. While justice is a casualty, at stake is the credibility of the Supreme Court as an institution.
The case in question is a January 2023 decision of a Bench of the Supreme Court of India comprising Justices M.R Shah and C.T. Ravikumar dismissing a public interest litigation (PIL) filed by Saurav Das. The petitioner had sought publication of chargesheets on the website of the respective states and Central government.
Background
A chargesheet is the report of the investigating officer to a competent magistrate upon completion of investigation in a cognisable offence. Prepared on the basis of the material collected during the investigation, it contains the opinion of the investigating officer on the maintainability of a prima facie case against the accused.
It is one thing to interpret the provisions of a law and another to conjure up something in place of the black letters of law. No constitutional lens empowers a judge to read black as orange.
It is upon the submission of the chargesheet that the magistrate gets the occasion to apply its judicial mind and decide on taking cognisance of the offence. While the code aspires expeditious completion of investigation, it prescribes no time limit for filing of chargesheet except for the offence of rape.
If the accused has been arrested during the investigation and the investigation is not completed during the prescribed period under Section 167 of the CrPC, the accused is entitled to seek default bail.
Often chargesheets are filed belatedly and at times years after the offence has been committed. We also have instances of incomplete chargesheets being filed by investigating agencies to thwart the right of the accused to seek default bail.
Being a vital document in the trajectory of a criminal case, it is important that the accused must know the status of a chargesheet to enable them to file for default bail, if the chargesheet is not filed within the prescribed period.
Invariably, a copy of the chargesheet is required by the accused to prepare their defence. Under the current scheme of CrPC, the police file the chargesheet before the magistrate. They are under no obligation to simultaneously serve a copy to the accused.
They may, however, in their discretion serve a copy of the chargesheet to the accused. But it will not be a procedural irregularity if they fail to do so. Not even lip service by the police is mandated to let the accused know about the status of the chargesheet.
Consequently, a large number of poor and illiterate, undertrial prisoners continue to languish in jails because they do not know that they are entitled to seek default bail. However, before the commencement of the trial, a copy of the chargesheet, first information report (FIR) and other relevant documents is required to be served upon the accused by the magistrate under Section 207 CrPC.
In Miss A. versus State of Uttar Pradesh (2020), the Supreme Court held that “It is only after taking of the cognisance and issuance of process that the accused is entitled, in terms of Sections 207 and 208 of the code, to copies of the documents referred to in said provisions.
If the accused has been arrested during the investigation and the investigation is not completed during the prescribed period under Section 167 of the CrPC, the accused is entitled to seek default bail.
“The filing of the chargesheet by itself does not entitle an accused to copies of any of the relevant documents including [any] statement [made] under Section 164 of the code, unless the stages indicated above are undertaken.”
Unpacking the PIL
Strangely, in the Saurav Das’s case, Justice M.R. Shah holds that “as per sub-section 173(4) CrPC, a duty is cast upon the investigating agency to furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) under Section 173.”
This is clearly not the position of the law. To substantiate his point, he further quotes Section 173(4) as follows: “After forwarding a report under this Section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under Section 154 and of all 41 other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”
But this is not what Section 173(4) of CrPC says. In fact, no section of CrPC has the same wording as attributed by Justice M.R. Shah to Section 173(4). Perhaps it comes from the old CrPC (1898). Section 173 of the old CrPc was amended in 1955 to ensure that police officers provide a copy of the chargesheet free of cost to the accused.
However, the Law Commission of India in 1969, in its 41st Report(Page 78) divulged that the police were not furnishing copies to the accused. The commission had recommended shifting of this statutory duty of providing free copies of chargesheet and other documents from police to the magistrate taking cognisance as they observed, “It is possible that police officers whose statutory duty it is to prepare and handover the copies to the accused are not adequately equipped for the purpose, and the extra work involved has not led to a proportionate increase in the staff.”
The suggestion of the Law Commission was accepted and is reflected in current CrPC’s Section 173(6), which makes it discretionary and not mandatory for the police to supply the chargesheet. It is the magistrate as per Section 207 who has to ensure that copies of chargesheet, FIR and other documents relied on by prosecution are supplied free of cost to the accused. Ironically, the Supreme Court held that it is the duty of the police to supply free copies of chargesheet ignoring the very principles on which amendment was made.
No section of CrPC has the same wording as attributed by Justice M.R. Shah to Section 173(4). Perhaps it comes from the old CrPC (1898).
Shockingly, Section 173(4) does not talk about furnishing any document to the accused. Instead, it reads as follows: “Whenever it appears from a report forwarded under this section that the accused has been released in his bond, the magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.”
Even the reference to ‘41’ other documents should have alerted the judge! It cannot be dubbed as a mere inadvertent typographical error in quoting the Section number.
While we can only speculate that at the source of corruption and point fingers at the hallucinations of a generative AI that the judicial clerk might have been tempted to use, such a casual approach does not behoove the top court when dealing with matters of utmost importance to civil liberties and criminal justice administration.
The decision in the Saurav Das case is not only based on a fabricated provision of law but is bereft of any reason or logic. The other reason given by Justice Shah is that availability of chargesheets in public domain will “violate the rights of the accused as well as the victim and/or even the investigating agency”.
However, he fails to substantiate the manner in which the rights of the accused or victim or investigating agency will be violated. It is submitted that the publication of chargesheets will have no such effect. In Dr Naresh Kumar Mangla versus Anita Agrawal (2020), the Supreme Court held that the rights of accused and victim are affected by selective leaks by the investigating agency during the investigation.
However, a chargesheet is filed upon the conclusion of investigation under Section 173(2) CrPC. It is based on the materials collected during the investigation by the investigating officer; therefore, it does not compromise with the presumption of innocence of the accused. The rights of victims and witnesses can be protected by simply redacting their personal details.
Further, the court concludes that the chargesheet is a private document as per Section 74 and 75 of the Indian Evidence Act, 1872 but gives no reason as to why it considers it to be so.
Undoubtedly, the decision of the Supreme Court is per incuriam and must be reviewed. In general, courts need to be careful in not getting at least the basic law of the land incorrect.
On the other hand, in 2014, the Central Information Commission (CIC), in the matter of Ms Usha Kant Asiwal versus Directorate of Vigilance, GNCTD relied upon those very sections of the Indian Evidence Act and held that a chargesheet is a public document and access to it cannot be denied casually under the Right to Information Act, 2005.
Once a chargesheet is filed in a court, it is a part of the judicial record and should be treated as a public document, but the court has masked this fact.
Undoubtedly, the decision of the Supreme Court is per incuriam and must be reviewed. In general, courts need to be careful in not getting at least the basic law of the land incorrect.
The author would like to thank her student Sarrah Singapurwala at NLSIU for minutely reading this judgment and flagging the issue.
An earlier version of this piece suggested that “even the old CrPC (1898) had no such Section” as quoted by Justice M.R. Shah. As pointed out by a reader, this was wrong. Section 173 of the old CrPc was amended in 1955 to ensure that police officers provide a copy of the chargesheet free of cost to the accused. The piece has been updated appropriately.
