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219. The role and obligation of the Prosecutor particularly in relation to
disclosure cannot be equated under our law to that prevalent under the English
system as aforereferred to. But at the same time, the demand for a fair trial cannot
be ignored. It may be of different consequences where a document which has been
obtained suspiciously, fraudulently or by causing undue advantage to the accused
during investigation such document could be denied in the discretion of the
Prosecutor to the accused whether the prosecution relies or not upon such
documents, however in other cases the obligation to disclose would be more
certain. As already noticed the provisions of Section 207 have a material bearing
on this subject and make an interesting reading. This provision not only require or
mandate that the court without delay and free of cost should furnish to the
accused copies of the police report, first information report, statements,
confessional statements of the persons recorded under Section 161 whom the
prosecution wishes to examine as witnesses, of course, excluding any part of a
statement or document as contemplated under Section 173(6) of the Code, any
other document or relevant extract thereof which has been submitted to the
Magistrate by the police under sub-section (5) of Section 173. In contradistinction
to the provisions of Section 173, where the legislature has used the expression
“documents on which the prosecution relies” are not used under Section 207 of
the Code. Therefore, the provisions of Section 207 of the Code will have to be
given liberal and relevant meaning so as to achieve its object. Not only this, the
documents submitted to the Magistrate along with the report under Section 173(5)
would deem to include the documents which have to be sent to the Magistrate
during the course of investigation as per the requirement of Section 170(2) of the
Code.
220. The right of the accused with regard to disclosure of documents is a limited
right but is codified and is the very foundation of a fair investigation and trial. On
such matters, the accused cannot claim an indefeasible legal right to claim every
document of the police file or even the portions which are permitted to be
excluded from the documents annexed to the report under Section 173(2) as per
orders of the court. But certain rights of the accused flow both from the codified
law as well as from equitable concepts of the constitutional jurisdiction, as
substantial variation to such procedure would frustrate the very basis of a fair
trial. To claim documents within the purview of scope of Sections 207, 243 read
with the provisions of Section 173 in its entirety and power of the court under
Section 91 of the Code to summon documents signifies and provides precepts
which will govern the right of the accused to claim copies of the statement and
documents which the prosecution has collected during investigation and upon
which they rely.
221. It will be difficult for the Court to say that the accused has no right to claim
copies of the documents or request the Court for production of a document which
is part of the general diary subject to satisfying the basic ingredients of law stated
therein. A document which has been obtained bona fide and has bearing on the
case of the prosecution and in the opinion of the Public Prosecutor, the same
should be disclosed to the accused in the interest of justice and fair investigation
and trial should be furnished to the accused. Then that document should be
disclosed to the accused giving him chance of fair defence, particularly when
non-production or disclosure of such a document would affect administration of
criminal justice and the defence of the accused prejudicially.
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