What is the law embedded in Section 207 of the Code of Criminal Procedure, 1973 and why does it keep getting invoked in the Elgar Parishad–Bhima Koregaon case?
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SEVERAL accused in the Elgar Parishad–Bhima Koregaon case have claimed that the National Investigation Agency (NIA) has inordinately delayed giving them access to copies of important evidence in the case.
The evidence exists in the form of cloned copies of electronic material purportedly recovered from the accused.
The accused persons have filed applications for the NIA to comply with Section 207 of the Code of Criminal Procedure, 1973 (CrPC).
The applications have been awaiting the NIA’s compliance for over four years. They are currently pending before an NIA court of special judge Rajesh Kataria.
In January last year, Atiq ur Rehman, Masood Ahmed and Mohammed Alam moved the Allahabad High Court seeking copies of the chargesheet and other supporting documents under Section 207 of the CrPC.
The three were held along with Kerala journalist Siddiqui Kappan in the Hathras conspiracy case. The chargesheet was filed in April 2021.
What does Section 207 of the CrPC provide?
Once a first information report (FIR) has been filed, it sets the criminal justice system in motion.
A police report or chargesheet is submitted by a police officer to a magistrate after investigating a case.
On receiving a police report and other supporting documents, the concerned magistrate issues summons for the appearance of the accused.
The accused persons in the Bhima Koregaon have filed applications for the NIA to comply with Section 207 of the Code of Criminal Procedure, 1973.
On the appearance, Section 207 of the CrPC mandates supplying to the accused a copy of certain documents relied upon by the prosecution, without delay and free of cost.
The provision mandates the supply of the following documents, namely:
(i) the police report;
(ii) the first information report (FIR) recorded under Section 154;
(iii) the statements recorded under Section 161(3) of all persons whom the prosecution proposes to examine as its witnesses, excluding any part that the police officer requests for exclusion under Section 173(6);
(iv) the confessions and statements recorded under Section 164; and
(v) any other document or relevant extract forwarded to the magistrate with the police report under Section 173(5).
Section 161 of the CrPC provides for the examination of witnesses by the police officer making an investigation.
Sub-section 3 of Section 161 states that a police officer, while examining any person acquainted with the facts and circumstances of a case, may reduce to writing any statement made to him and maintain a separate record of each of such statements.
Recording of statements and confessions by a metropolitan magistrate or judicial magistrate in the course of investigations is provided for under Section 164 of the CrPC.
Under Section 173(5) of the CrPC, in addition to a police report, a police officer can forward to the magistrate other documents and the statements of witnesses recorded under Section 161, which the prosecution seeks to rely upon.
Section 173(6) explains that a police officer can request the magistrate to exclude statements of witnesses from the copies to be granted to the accused if such disclosure is not essential in the interest of justice.
In January last year, Atiq ur Rehman, Masood Ahmed and Mohammed Alam moved the Allahabad High Court seeking copies of the chargesheet and other supporting documents under Section 207 of the CrPC.
Further, the provision states that the magistrate may, after considering the reasons given by the police officer for the request, direct that a copy of that part of the statement under clause (iii) or its portion be furnished to the accused.
In addition, if the magistrate is satisfied that any document referred to in clause (v) is voluminous, he has the discretion of directing the accused to inspect it either personally or through a pleader in the court itself.
Constitutional mandate
Article 21 of the Constitution guarantees the right to a fair trial for both the complainant and the accused, and forms the backbone of the criminal justice system in India.
The principle of fair and impartial trial entails complete disclosure of each and every piece of evidence that the prosecution seeks to use to establish the guilt of the accused.
The disclosure of evidence gives the accused a fair chance to defend themself by cross-examining the witnesses or disproving material evidence.
The CrPC reiterates the right of the accused through several provisions, including Section 207.
A catena of judgments has mandated compliance with Section 207 of the CrPC.
A cursory perusal of Section 207 of the CrPC indicates that the provision is unambiguous. It is well-established in law that the court must adopt the plain and natural meaning when reading such provisions, irrespective of the consequences it may lead to.
What is the judiciary’s stand?
In Siddhartha Vashisht @ Manu Sharma versus State (NCT of Delhi) (2010), the Supreme Court observed that the accused has a right to receive all documents and statements as well as to move an application for production of any record or witness in support of the case.
“Th[ese] constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution to make fair disclosure,” the judgment said.
The court also noted that “fair disclosure” includes the furnishing of a document that the prosecution relies upon, whether or not it is filed in the court, terming it “the very foundation of a fair investigation and trial”.
In the case of P. Gopalkrishnan @ Dileep versus The State of Kerala (2019), the Supreme Court mandated that all documents, including electronic records that are produced for the inspection of the court along with the police report and those that the prosecution seeks to rely upon, must be furnished to the accused under Section 207 of the CrPC.
“It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial,” the judgment says.
The principle of fair and impartial trial entails complete disclosure of each and every piece of evidence that the prosecution seeks to use to establish the guilt of the accused.
In June last year, the Karnataka High Court, in the case of Chirag R. Mehta versus State of Karnataka (2022), observed that refusal to supply the accused copies of all material adduced in the chargesheet is contrary to the principle of fairness and amounts to an unfair trial.
In July 2021, the Delhi High Court held that the accused is not barred from filing successive applications for compliance under Section 207 of the CrPC.
This observation of the court pertains to the plea of Devangana Kalita, accused in the Delhi riots conspiracy case, seeking a copy of the electronic evidence furnished by the prosecution in the case.
In Ashutosh Verma versus CBI (2014), the Delhi High Court analysed Section 207 of the CrPC and held that an accused person would be prevented from properly defending himself until all the evidence collected during the course of the investigation is given to the accused.
The court observed that the prosecution cannot “at its own will and pleasure pick and choose the statement of witnesses in respect of which the copies are to be and are not to be furnished to the accused to suit its convenience”.
What is the current standing of the provision?
On August 11, three new Bills were introduced in the Lok Sabha. If passed, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 (BNSS) will replace the CrPC.
In July 2021, the Delhi High Court held that the accused is not barred from filing successive applications for compliance under Section 207 of the CrPC.
Under its Section 230, the BNSS retains the essence of Section 207 of the CrPC, although with the addition of a proviso, as follows: “Provided also that supply of documents in electronic form shall be considered as duly furnished.”
Despite the law being clear and the courts being unambiguous, compliance with Section 207 of the CrPC has been weak.
It remains to be seen whether Section 230 of the BNSS (if it is passed) will meet the same fate.
