P. PONNUSAMY VERSUS THE STATE OF TAMIL NADU

P. PONNUSAMY VERSUS THE STATE OF TAMIL NADU 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). OF 2022

 [@ SPECIAL LEAVE PETITION (CRL.) NO(S). 9288 of 2022]

P. PONNUSAMY …APPELLANT(S)

VERSUS

THE STATE OF TAMIL NADU …RESPONDENT(S)

1. Leave granted. This appeal arises out of an order dated 14.09.2022 in RT

No. 2/2021, by the High Court of Judicature at Madras. In those proceedings, the

High Court had by order dated 27.04.2022 fixed the hearing of the main

proceeding – which is a death reference.

2. The appellant and some others were convicted under Section 302 of the

IPC along with other provisions and Section 120B. The appellant (A1); A3; A4;

A5; A7; A8 and A9 were sentenced to death. Consequently, reference was made

to the High Court which was seized of all the proceedings and heard it from time

to time. On 27.04.2022 after ascertaining convenience of all the counsels the

appeals were listed for final hearing on 15.06.2022. The judgment of

Bela Trivedi J., has recounted all these facts in detail. The further proceedings

which took place before the High Court, the hearing and the order made on

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14.09.2022, declining to direct State to produce documents enlisted in letter

written to the public prosecutor on behalf of the appellant on 05.09.2022, is

impugned here.

3. The final order proposed by Bela Trivedi J., of rejecting an appeal is in our

opinion justified in the circumstances of the case. However, we are unable to

agree with the observations made during the course of her order as to the nature

of the directions made in Suo Motu W.P. (Crl.) No. 1 of 2017, concerning the

right of the accused to be supplied with documents or material, seized or collected

during the investigation, but not relied upon.

4. While hearing a criminal appeal1

and connected matters, concern was

raised regarding common deficiencies and practices adopted by trial courts in the

course of criminal trial and disposal of cases, in the absence of uniform

guidelines. This resulted in Suo Motu WP (Crl.) No. 1 of 2017, wherein this court

appointed amici curiae, and issued notice to all High Courts and governments of

all States and Union Territories, so general consensus could be arrived at

regarding the need to amend rules of practice/criminal manuals to bring about

uniform best practices across the country.2 The court noted salient aspects and

inconsistencies in the practices and rules of the High Courts.

5. A wide consultative process was undertaken. Firstly, High Courts and

governments of States/Union Territories, filed their responses. Taking note of

1 Criminal Appeal No. 400/2006

2 Order dated 30.03.2017 in Suo Motu WP (Crl) No. 1/2017.

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these, the amici curiae prepared a consultation paper and invited written

responses from stakeholders. Next, a colloquium was convened on 30.03.2019 to

discuss this paper, wherein High Courts, governments of States/Union Territories

and police departments participated. Based on the feedback, the amici curiae

prepared a report containing the ‘Draft Rules of Criminal Practice, 2020’ which

was taken on record on 05.03.2020 and made available3 publicly through the

Supreme Court website.

6. Before passing directions on the same, this court thought it appropriate to

hear the High Courts again, on these draft rules.4 Once responses were received

from all High Courts, the matter was heard; in the final order dated 20.04.20215

it was noted that most of the suggestions had been agreed upon, except in regard

to few aspects – the divergence, or additional points of view, were taken note of6

.

7. The amici curiae had pointed out that before the commencement of the

trial, the accused only receives a list of documents and statements relied upon by

the prosecution but is kept in the dark on other material in the possession of the

prosecution, even if it has exculpatory value. On this, the court unequivocally

held:

“11. … This Court is of the opinion that while furnishing the list of

statements, documents and material objects under Sections 207/208 CrPC,

the Magistrate should also ensure that a list of other materials, (such as

statements, or objects/documents seized, but not relied on) should be

3 <https://main.sci.gov.in/pdf/LU/06032020_103012.pdf> (accessed on 31.10.2022, 18:28 pm).

4 See order dated 27.10.2020, and again on 19.01.2021 in Suo Motu WP (Crl) No. 1/2017.

5 Reported as Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In re. v. State of Andhra

Pradesh and Ors., (2021) 10 SCC 598.

6

Ibid, para 9.

4

furnished to the accused. This is to ensure that in case the accused is of the

view that such materials are necessary to be produced for a proper and just

trial, she or he may seek appropriate orders, under CrPC7

for their

production during the trial, in the interests of justice. It is directed

accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)]”

 (emphasis supplied)

8. Rule 4 of Draft Rules of Criminal Practice 2021, which was appended to,

and considered part and parcel of this court’s order, reads as follows:

“4. Supply of documents under Sections 173, 207 and 208 CrPC.—(i)

Every accused shall be supplied with statements of witness recorded under

Sections 161 and 164 CrPC and a list of documents, material objects and

exhibits seized during investigation and relied upon by the investigating

officer (IO) in accordance with Sections 207 and 208 CrPC.

Explanation : The list of statements, documents, material objects and

exhibits shall specify statements, documents, material objects and exhibits

that are not relied upon by the investigating officer.”

9. The matter was disposed of with the following directions:

“19. The Court is of the opinion that the Draft Rules of Criminal Practice,

2021, (which are annexed to the present order, and shall be read as part of

it) should be hereby finalised in terms of the above discussion. The

following directions are hereby issued:

19.1. All High Courts shall take expeditious steps to incorporate the said

Draft Rules, 2021 as part of the rules governing criminal trials, and ensure

that the existing rules, notifications, orders and practice directions are

suitably modified, and promulgated (wherever necessary through the

Official Gazette) within 6 months from today. If the State Government's

co-operation is necessary in this regard, the approval of the department or

departments concerned, and the formal notification of the said Draft Rules,

shall be made within the said period of six months.

19.2. The State Governments, as well as the Union of India (in relation to

investigating agencies in its control) shall carry out consequential

amendments to their police and other manuals, within six months from

today. This direction applies, specifically in respect of Draft Rules 1-3.

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“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.(2) Any person required under this section merely to produce a document or other

thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced

instead of attending personally to produce the same.(3) Nothing in this section shall be deemed—(a) to affect

Sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891

(13 of 1891) or(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody

of the postal or telegraph authority.”

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The appropriate forms and guidelines shall be brought into force, and all

agencies instructed accordingly, within six months from today.”

10. The Draft Rules framed, therefore, were a product of a thorough

consultative exercise undertaken to remedy asymmetries caused by the lack of

uniformity in Rules across States, which could hamper appreciation of evidence,

and in turn delay proceedings, especially at the appellate stage. Recognition of

the need to streamline trials or mitigate delays, however, cannot come at the cost

of the accused’s right to fair trial.

11. Taking note of the case law in Siddharth Vasisht @ Manu Sharma v. State

of NCT Delhi8

, this court in Manoj & Ors. v. State of Madhya Pradesh9

,

highlighted the dual role played by the public prosecutor and the court in

safeguarding the accused’s right to fair investigation and trial, by scrutinizing the

material and ensuring fair disclosure. In light of this, and the aforementioned draft

Rule 4, this court went on to hold in Manoj that:

“…In view of the above discussion, this court holds that the prosecution,

in the interests of fairness, should as a matter of rule, in all criminal trials,

comply with the above rule, and furnish the list of statements, documents,

material objects and exhibits which are not relied upon by the investigating

officer. The presiding officers of courts in criminal trials shall ensure

compliance with such rules.”

12. In addition to the decision in Manu Sharma (as noticed in Manoj), there is

another decision – Manjeet Singh Khera v. State of Maharashtra10

- which had

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(2010) 6 SCC 1 (referred to as ‘Manu Sharma’). See paragraphs 187, 199, 201, 202, 218-222 (relied on in

Manoj & Ors. v. State of Madhya Pradesh).

9

Judgment dated 20.05.2022 in Criminal Appeal Nos. 248-250 of 2015; 2022 SCC OnLine SC 677.

10 (2013) 9 SCC 276

6

highlighted how the requirement of disclosure, is an intrinsic part of the right to

fair trial under Article 21 of the Constitution.11 Relying upon its previous decision

in V.K. Sasikala v. State12, this court noted in Manjeet Singh Khera:

“…In that case, the documents were forwarded to the court under Section

173(5) CrPC but were not relied upon by the prosecution and the accused

wanted copies/inspection of those documents. This Court held that it was

incumbent upon the trial court to supply the copies of these documents to

the accused as that entitlement was a facet of just, fair and transparent

investigation/trial and constituted an inalienable attribute of the process of

a fair trial which Article 21 of the Constitution guarantees to every

accused. We would like to reproduce the following portion of the said

judgment discussing this aspect: (V.K. Sasikala case [V.K. Sasikala v.

State, (2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , SCC p. 788, para

21)

“21. The issue that has emerged before us is, therefore, somewhat larger

than what has been projected by the State and what has been dealt with by

the High Court. The question arising would no longer be one of

compliance or non-compliance with the provisions of Section 207 CrPC

and would travel beyond the confines of the strict language of the

provisions of CrPC and touch upon the larger doctrine of a free and fair

trial that has been painstakingly built up by the courts on a purposive

interpretation of Article 21 of the Constitution. 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 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 to the said documents, if so claimed. This,

according to us, is the core issue in the case which must be answered

affirmatively. In this regard, we would like to be specific in saying that we

find it difficult to agree with the view [V.K. Sasikala v. State, 2012 SCC

OnLine Kar 9209] 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 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 belatedly. This is how the scales of justice in our criminal

jurisprudence have to be balanced.”

 (emphasis supplied)

11 This was also reaffirmed in P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161 where it was held that

“furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to

a fair trial enshrined in Article 21 of the Constitution”.

12 (2012) 9 SCC 771

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13. It is true that this court in V.K. Sasikala (supra) was dealing with

material/documents that were forwarded to the Magistrate under Section 173

CrPC, but were not being relied upon by the prosecution. However, it is

undeniable that there could also arise a situation wherein the investigating officer,

ignores or does not rely on seized documents, material or evidence which favours

the accused, and fails to forward it to the Magistrate [as required under Section

173 CrPC, specifically sub-section (6)]. Merely because it is not already on the

record of the court, cannot disentitle the accused from accessing material that may

have exculpatory value. It is this gap, that was recognised and addressed

(paragraph 11 of final order) in the suo-moto proceedings, and suitably codified

in the text of the Draft Rule 4, by introducing a requirement of providing a list (at

the commencement of the trial) of all documents, material, evidence, etc. seized

during the course of investigation or in the possession of the prosecution,

regardless of whether the prosecution plans to rely on it. The facts in Manoj,

having reflected such a situation (of suppression of evidence that favoured the

accused) similarly, necessitated elaboration of this right.

14. The framework that emerges (by reading Section 173, 207, 208 and Draft

Rule 4) is that based on the list of statements, documents, etc. received at the

commencement of the trial, the accused can seek appropriate orders under Section

91 of the CrPC, wherein the magistrate on application of judicial mind, may

decide on whether it ought to be called for. Additionally, by virtue of Section

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39113 of the CrPC, the appellate court, if it deems necessary, may take further

evidence (or direct it be taken by a magistrate or court of sessions) upon recording

reasoning. This safeguards the right of the accused in a situation where concern

has been raised regarding evidence or material in possession of the prosecution,

that had not been furnished, but was material to the trial and disposal of the case.

15. By way of Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1

of 2017, this court was apprised of the fact that some states had complied, and

other had not complied with the directions in final order dated 20.04.202114

regarding adoption of the Draft Rules and amending police manuals, etc. in a

time-bound manner (6 months); the states were directed15 to comply within 8

weeks and the matter is still pending.

16. That some High Courts or governments of the States/ Union Territories

have failed to comply with this court’s order and are delayed in adopting the Draft

Rules or amending the concerned police/practice manuals, cannot prejudice the

right of an accused (to receive this list of the statements, documents, material, etc.

in the possession of the prosecution), which has unequivocally been recognized

13 391. Appellate Court may take further evidence or direct it to be taken.—(1) In dealing with any appeal

under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons

and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a

High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such

evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an

inquiry.

14 Suo Motu WP (Crl) No. 1/2017

15 By order dated 28.04.2022 in Miscellaneous Application No. 505/2022 in SMW(Crl) No. 1/2017.

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by this court in its final order16 of the suo-moto proceedings (paragraph 11,

extracted above), itself. Further, to say that the judgment in Manoj in relation to

this, and the right of the accused to receive the said list of documents, material,

etc. would only apply after the draft rules are adopted – would lead to an

anomalous situation where the right of the accused in one state, prejudicially

differs from that afforded to an accused, in another.

17. As stated earlier, the requirement of disclosure elaborated on in Manoj, not

only was premised on the formulation of draft rules, but normatively premised on

the ratio of the three-judge bench decision in Manu Sharma (supra). In these

circumstances, the proper and suitable interpretation of the disclosure

requirement in Manoj (supra) would be that:

(a) It applies at the trial stage, after the charges are framed.

(b)The court is required to give one opportunity of disclosure, and the

accused may choose to avail of the facility at that stage.

(c) In case documents are sought, the trial court should exercise its

discretion, having regard to the rule of relevance in the context of the

accused’s right of defence. If the document or material is relevant and

does not merely have remote bearing to the defence, its production may

be directed. This opportunity cannot be sought repeatedly – the trial

court can decline to issue orders, if it feels that the attempt is to delay.

(d)At the appellate stage, the rights of the accused are to be worked out

within the parameters of Section 391 CrPC.

16 Order dated 20.04.2021 in Suo Motu WP (Crl) No. 1/2017, reported as Criminal Trials Guidelines Regarding

Inadequacies and Deficiencies, In re. v. State of Andhra Pradesh and Ors., (2021) 10 SCC 598.

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18. That the accused, has a right to fair trial, was not in doubt; but what is

reiterated is that this right is manifested in the fair disclosure requirement

elaborated above. While the concern of delay in conclusion of trial undoubtedly

weighs heavily in the mind of the judge, it cannot entail compromise of the right

of the accused to fair investigation and trial.

19. Having regard to the above discussion we are of the opinion that the

circumstances in which the request was made – through the letter after appeal was

set down for hearing despite repeated opportunities, was not justified. The

appellant could have sought recourse by filing an appropriate application, in

accordance with the procedures set out above, well in time. We therefore agree

that the appeal made at this late stage, appears to be to prolong the hearing. In

these circumstances, the Court declines to interfere. The appeal is accordingly

dismissed.

…........................................CJI.

 [UDAY UMESH LALIT]

.....…........................................J.

 [S. RAVINDRA BHAT]

NEW DELHI

NOVEMBER 07, 2022

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2022

[Arising out of SLP(CRIMINAL) NO. 9288 OF 2022]

P. PONNUSAMY …APPELLANT

VERSUS

THE STATE OF TAMIL NADU …RESPONDENT

 J U D G E M E N T

BELA M. TRIVEDI, J.

1) Leave granted.

2) The appellant (original accused no. 1) has filed the present appeal being

aggrieved by the impugned order dated 14.09.2022 passed by the High

Court of Judicature at Madras in RT No. 02 of 2021, whereby the High

Court had directed the learned Counsels appearing for the parties to

proceed with the hearing of the matter on 17.10.2022. The relevant part

of the impugned order reads as under: -

“17. In our opinion, this communication is not at

all appreciable and we strongly record our

disapproval on such tactics adopted by the learned

counsel on record. All the papers relied upon by the

prosecution were placed by the Investigating

Officer before the trial court and copies were

furnished to the accused under Section 207 Cr.P.C.

The same have got translated as legal evidence

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during trial and the case of the accused should have

to stand or fall based on that unless additional

evidence is sought to be taken.

18. Mrs. Anjana Prakash, learned Senior Counsel

requested fervently that she has discussed with all

the counsel including the Senior Counsel, who have

been engaged by various counsel on record and

sought final adjournment to 17.10.2022, on which

date, all the counsel assured that they would not

seek any adjournment.

19. This Court explain to the learned counsel that

the case of the persons, who have been sentenced to

death, has to be completed within six months,

whereas, in this case, for the last one year, there has

not been any progress on account of noncooperation of the accused. Under Section 386

Cr.P.C., if the counsel for the appellant or the Public

Prosecutor does not appear, it is open to this Court

to peruse the records and proceed with the case.

When we explained to Mrs. Anjana Prakash that the

Public Prosecutor may be permitted to begin the

case at least and that she may reply to his

submissions later, she requested us not to do that, as

it would be easier if both sides’ submissions are

heard continuously. She repeatedly assured us that

no one would seek adjournment on 17.10.2022.

Hence, more out of courtesy and respect for Mrs.

Anjana Prakash, Senior Advocate, the case is

adjourned to 17.10.2022.”

3) The appellant instead of appearing before the High Court on 17.10.2022,

rushed to this Court challenging the said order. This Court on 17.10.2022

passed the following order:-

“Mr. Gopal Sankaranarayanan, learned Senior

Advocate submits that:

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a) This Court in its decision dated 22.05.2022

passed in Manoj & Others v. State of Madhya

Pradesh, reported in 2022 (9) SCALE 67, dealt with

certain issues from paragraph 170 of the decision

whereafter conclusions were drawn in paragraph

179.

b) Relying on these observations, a letter was

written on behalf of the accused on 05.09.2022

seeking documents which were in the possession of

the investigating machinery.

c) Without deciding the issues raised in said letter,

the High Court has proceeded to fix the matter for

hearing in death confirmation case.

We issue notice on this petition, returnable on

20.10.2022 and direct that the matter be placed

before the same Bench which dealt with and

rendered the decision in Manoj & Others (supra).

Dasti service, in addition, is permitted.

Liberty is granted to serve the learned Standing

Counsel for the State.

Since the matter is posted before the High Court for

final disposal, at this stage, we do not deem it

appropriate to pass any interim directions except to

request the High Court not to pronounce the final

order in case the matter is taken up for final

disposal.”

4) In the present Appeal, we need not go deep into the merits of the Appeals

or the Reference case, which are pending before the High Court. Suffice

it to say that the appellant along with other eight accused were convicted

and sentenced by the City Civil and Sessions Court, Chennai in Sessions

Case No. 348/2015 for the offences punishable under Section 120-B,

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109, 341, 302 read with section 34 of IPC. Some of the accused were

sentenced to death penalty and some with life imprisonment and other

sentences. The Sessions Court had referred its judgement and order to the

High Court for confirmation of the death penalty awarded to some of the

accused under Section 366 Cr.P.C., which was registered as RT No. 02

of 2021. The accused also had filed separate nine appeals before the High

Court challenging the judgement and order passed by the Sessions Court

in the said sessions case. All the said appeals were directed to be tagged

with RT No. 02 of 2021 by the High Court.

5) As transpiring from the impugned order, the High Court after

ascertaining the convenience of all the advocates appearing for the parties

had fixed the date for final hearing on 15.06.2022 vide the order dated

27.04.2022. Thereafter, the roster was changed and the matters were

listed on 06.09.2022 on which date the hearing was adjourned at the

request made by the learned counsel for the appellant-accused and

therefore, it was again adjourned to 14.09.2022 for final disposal. On

14.09.2022, though the State Public Prosecutor was ready to argue, one

of the learned senior advocates from Delhi appeared before the High

Court and requested the High Court to adjourn the hearing. At that time,

the State Public Prosecutor drew the attention of the High Court to a letter

dated 05.09.2022 sent by Mr. G. Sriram, learned counsel appearing for

the present appellant (accused no. 1) P. Ponnusamy, the accused no. 02

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Mary Pushpam and the accused no. 03 Basil, addressed to the Inspector

(Law and Order) E-4 Abiramapuram Police Station, Chennai, asking him

to produce certain documents, stating therein inter-alia that the said

documents were required for fair adjudication of their case, in the light

of the Supreme Court’s decision (in case of Manoj and others Vs. State

of Madhya Pradesh, Criminal Appeal No. 248-250 of 2015 decided on

20th May, 2022). The said letter was placed on record by the State Public

Prosecutor. On the said date i.e., 14.09.2022, the learned senior advocate

who had come from Delhi assured the court that she had discussed with

all the counsels who were appearing for the appellants and that all had

assured her that they would proceed with the hearing on 17.10.2022. The

High Court appraised her that the case pertained to the sentence of death

penalty, which had to be completed within six months and that for the

last one year there was no progress in the case on account of noncooperation of the accused. However, she repeatedly assured the court

that no one would seek adjournment on 17.10.2022, and therefore the

High Court out of sheer courtesy and respect for the senior advocate

adjourned the case to 17.10.2022.

6) Despite such assurance having been given by the senior advocate and all

other advocates including other senior advocates appearing for the other

appellants-accused to the High Court to proceed with the hearing of the

Reference case and the appeals, the appellant rushed to this Court to

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hamper the hearing fixed before the High Court on 17.10.2022. Such a

dilatory tactics adopted by the parties and their advocates and thereby

deflecting the course of justice in the cases like the present one, where

some of the appellant-accused are facing the death penalty and some

sentence of life imprisonment are strongly deprecated. It is needless to

say that the death Reference cases referred by the Sessions Courts to the

High Court have to be given utmost priority and should be heard and

completed by the High Court as expeditiously as possible and preferably

within six months. However, as transpiring from the observations made

by the High Court in the impugned order, which have remained

unchallenged before us, it was only because of the non-cooperation on

behalf of the counsels appearing for the appellant-accused, the High

Court was not able to hear the Reference case. The court may not have

to remind the senior advocates of their duties to assist the courts for the

cause of justice, and not to indulge into dilatory tactics and hamper the

cause of justice.

7) Having said that, let us examine the merits of the submissions made

before us. Placing heavy reliance on the observations made by this court

in case of Manoj and others Vs. State of Madhya Pradesh (supra), the

learned senior counsel for the appellant submitted that the appellant

alongwith the other two accused on 05.09.2022 had sent a letter

addressed to the Inspector (Law and Order) E-4 Abiramapuram Police

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Station, Chennai requesting him to produce certain documents as

mentioned in the letter, which were required for fair adjudication in the

case. He further submitted that till the copies of the documents demanded

by the accused as mentioned in the said letter were furnished to them, it

was not possible for them to proceed with the hearing of the appeals or

the Reference case pending before the High Court. According to them,

the observations made by this Court in para 177 to 179 in case of Manoj

and others Vs. State of Madhya Pradesh (supra) were very much

significant for safeguarding the rights of the accused to a fair

investigation carried out by the mighty State’s police machinery; and that

the interest of the justice warranted that the further hearing of RT No. 02

of 2021 pending before the High Court be stayed till the appellants and

other accused were provided with the documents demanded by them.

8) The said submissions made by the learned senior advocates appearing for

the appellant deserve to be outrightly rejected, having been advanced out

of sheer misconception of the law and misinterpretation of the

observations made by this Court in case of Manoj and others Vs. State

of Madhya Pradesh (supra). The precise observations made by this Court

in para 177, 178 and 179 of the judgement in the said case of Manoj and

others may be reproduced here under: -

8

“177. In this manner, the public prosecutor, and

then the trial court’s scrutiny, both play an essential

role in safeguarding the accused’s right to fair

investigation, when faced with the might of the

state’s police machinery.

178. This view was endorsed in a recent three judge

decision of this court in Criminal trials guidelines

regarding Inadequacies and Deficiencies, in re v.

State of Andhra Pradesh. This court has highlighted

the inadequacy mentioned above, which would

impede a fair trial, and inter alia, required the

framing of rules by all states and High Courts, in

this regard, compelling disclosure of a list

containing mention of all materials seized and taken

in, during investigation-to the accused. The relevant

draft guideline, approved by this Court, for adoption

by all states is as follows:

“4. SUPPLY OF DOCUMENTS

UNDER SECTIONS 173, 207 AND 208

CR.PC

Every Accused shall be supplied with

statements of witness recorded under

Sections 161 and 164 Cr.PC and a list of

documents, material objects and exhibits

seized during investigation and relied

upon by the Investigating Officer (I.O) in

accordance with Sections 207 and 208,

Cr.PC.

Explanation: the list of statements,

documents, material objects and exhibits

shall specify statements, documents,

material objects and exhibits that are not

relied upon by the Investigating Officer.”

9

179. In view of the above discussion, this court

holds that the prosecution, in the interests of

fairness, should as a matter of rule, in all criminal

trials, comply with the above rule, and furnish the

list of statements, documents, material objects and

exhibits which are not relied upon by the

investigating officer. The presiding officers of

courts in criminal trials shall ensure compliance

with such rules.”

9) It may be noted that the draft guidelines were given by this Court to all

the High Courts and the State Governments and Union of India in the

suo-moto proceedings initiated by this Court under Article 32, during the

course of hearing of a criminal appeal, whereby the court had noticed

certain common deficiencies occurring during the course of criminal

trials and certain practices adopted by the trial courts in the criminal

proceedings. The said suo moto proceedings were registered as

“Criminal Trials Guidelines Regarding Inadequacies and Deficiencies,

in Re Vs. State of Andhra Pradesh and others1

.” The said case related,

amongst others to deficiencies/lapses with regard to the manner in which

the documents (list of witnesses, list of exhibits, list of material objects)

referred to and presented and exhibited in the judgements, and lack of

uniform practices in regard to preparation of injury reports, deposition of

witnesses, translation of statements, numbering and nomenclature of

1

(2021) 10 SCC 598

10

witnesses, labeling of material objects etc. which often led to a

asymmetries and hamper appreciation of evidence, which in turn had a

tendency prolonging the proceedings especially at the appellate stage.

The court in the said case had noticed that on these aspects, some High

Courts had framed the rules, however some had not, which had led to a

lack of clarity and uniformity in regard to the presentation of trial court

proceedings and records, for the purpose of appreciation at the High

Court and Supreme Court level. The court in the said case, after

considering the suggestions/submissions of the Amici Curie and of the

counsels appearing for the High Courts, States and the Union Territories,

on “the Draft Rules of Criminal Practice 2020” prepared by the Amici

Curie, had given the following directions vide the order dated

20.04.2021:-

“19. The Court is of the opinion that the Draft Rules

of Criminal Practice, 2021, (which are annexed to

the present order, and shall be read as part of it)

should be hereby finalised in terms of the above

discussion. The following directions are hereby

issued:

19.1. All High Courts shall take expeditious steps to

incorporate the said Draft Rules, 2021 as part of the

rules governing criminal trials, and ensure that the

existing rules, notifications, orders and practice

directions are suitably modified, and promulgated

(wherever necessary through the Official Gazette)

within 6 months from today. If the State

Government's co-operation is necessary in this

11

regard, the approval of the department or

departments concerned, and the formal notification

of the said Draft Rules, shall be made within the said

period of six months.

19.2. The State Governments, as well as the Union

of India (in relation to investigating agencies in its

control) shall carry out consequential amendments

to their police and other manuals, within six months

from today. This direction applies, specifically in

respect of Draft Rules 1-3. The appropriate forms

and guidelines shall be brought into force, and all

agencies instructed accordingly, within six months

from today.”

10) From the above, it clearly emerges that this Court in the afore-stated suo

moto proceedings had directed all the High Courts to take expeditious

steps to incorporate the said Draft Rules as part of the Rules governing

criminal trials and to ensure that the existing rules, notifications, orders

and practice are suitably modified and promulgated, wherever necessary

through the official gazette within six months from the date of the said

order. The court had also directed the State Governments as well as the

Union of India to carry out consequential amendments to the police and

other manuals. However, neither the High Courts nor the State

Governments appear to have taken any steps pursuant to the said

directions. As a result thereof, the said Draft Rules have neither been

adopted by the respective High Courts/State Governments nor have come

into force. Unless and until the Draft Rules as suggested by the court in

12

the suo moto proceedings are incorporated by the High Courts in the

Rules governing criminal trials and unless the consequential amendments

are made by the State Governments and the Union of India in the Police

and other Manuals, the same could not have been pressed into service by

any party to a criminal proceeding. The observations made in para 179

of the judgement in case of Manoj and others Vs. State of Madhya

Pradesh (Supra) were in the context of the said directions given by the

court in the suo moto proceedings and therefore were required to be read

in conjunction with the earlier paras 177 and 178 of the said judgement.

Meaning thereby, the prosecution is expected to comply with the Draft

Rule no. 4 pertaining to the supply of documents, as and when the said

set of Draft Rules are adopted by the High Courts and State

Governments, giving them a statutory force.

11) May it be noted that in any case, the Draft Rule no. 4 with regard to the

supply of documents under Sections 173, 207 and 208 Cr.P.C. is part of

the Chapter I of the said Draft Rules, to be followed during the course of

investigation and before the commencement of the trial. The said Draft

Rule no.4 as and when brought into force after following the due process

of law could be pressed into service by the accused only during the course

of investigation and during the course of trial, and not at the appellate

stage before the High Court or the Supreme Court.

13

12) In the aforesaid premises, the attempt made on behalf of the appellantaccused and the other accused to delay the hearing of the appeals and the

death Reference case pending before the High Court, under the guise that

they had demanded certain documents from the Investigating Officer was

absolutely reprehensible. As observed by the High Court in the impugned

order, “all the papers relied upon by the prosecution were placed by the

Investigating Officer before the trial court and copies were furnished to

the accused under Section 207 Cr.P.C. The same have got translated as

legal evidence during trial and the case of the accused should have to

stand or fall based on that unless additional evidence is sought to be

taken.”

13) This Court does not express any opinion on the merits of the case, and

dismisses the present appeal being devoid of merits.

14) The registry is directed to circulate a copy of this order to all the High

Courts, who in turn shall circulate the same to their respective

subordinate courts.

 …..................................J.

 [BELA M. TRIVEDI]

NEW DELHI

07.11.2022