Right Of Accused To Get 'Not Relied Upon Evidence' By Prosecution

On 20 April 2021, a three judges' bench headed by then Chief Justice of India, S. A. Bobde, and comprising Justices L. Nageswara Rao and S. Ravindra Bhat, delivered a potentially transformative judgement in “Suo Moto Writ (Crl) No. (S) 1/2017 (In Re: To issue certain guidelines regarding inadequacies and deficiencies in criminal trials)” (“Suo Moto Writ (Crl) No. 1/2017”). Despite its groundbreaking directions on the conducting of criminal trials in India, the judgement largely escaped notice within Indian legal circles.

Paragraph “1. This suo motu proceeding under Article 32 was initiated during the course of hearing of a criminal appeal. The Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings as well as in the disposal of criminal cases and causes. These related, amongst others, to the manner in which documents (i.e. list of witnesses, list of exhibits, list of material objects) referred to are presented and exhibited in the judgment, and the lack of uniform practices in regard to preparation of injury reports, deposition of witnesses, translation of statements, numbering and nomenclature of witnesses, labelling of material objects, etc. These very often lead to asymmetries and hamper appreciation of evidence, which in turn has a tendency of prolonging proceedings, especially at the appellate stages”.

The Supreme Court identified various deficiencies with regards to the key elements mentioned above and widespread inconsistencies between states owing to their respective High Court rulings. Vide an elaborate order dated 30.03.2017, the Supreme Court flagged inadequacies in the rules and practices of the High Courts and called for a uniform approach in the handling of 13 key issues such as description of exhibits, recording of witness statements, labelling of material objects, and so on. Towards bringing consensus, the Supreme Court issued notice to the Registrars General of all High Courts, Chief Secretaries and Administrators of States and Union Territories, and several Advocates General to submit their responses along with suggestions on the flagged issues. Thereafter, by an order dated 07.11.2017, the Supreme Court appointed Senior Advocates Sidharth Luthra and R. Basanth as amici curiae. Subsequently, on 20.02.2018, Advocate K. Parameshwar, was also appointed to assist in the process.

By January of 2019, 15 States / Union Territories and 21 High Courts had filed responses before the Supreme Court. Based on these responses, the amici curiae evolved a Consultation Paper, which inter alia contained draft rules. On 18.02.2019, the draft rules were circulated to all parties and written responses were invited from the stakeholders. On 30.03.2019, a colloquium of representatives from the different States / Union Territories and their respective High Courts was convened for this purpose in New Delhi at the India International Centre. After considering the suggestions made here, the amici curiae submitted “Draft Rules of Criminal Practice, 2020” for the consideration of the Supreme Court. While framing the Draft Rules, due care was taken to ensure uniformity while simultaneously recognising the diverse practices among the various state authorities and High Courts in the country. The Supreme Court noted that the Draft Rules are compliant and not in any way repugnant to the Code of Criminal Procedure, 1973 and further noted that many suggestions made as practice directions reflect the mandatory provisions of the Code of Criminal Procedure, 1973.

By orders dated 27.10.2020 and 19.01.2021, the High Courts were once again directed to file their responses to the Draft Rules of Criminal Practice, 2020. During the hearings, the Court considered the perspectives of High Courts where differences in opinion or certain reservations had emerged but observed that most suggestions had been accepted, with only a handful of disagreements. Some High Courts also proposed additional clarifications and enhancements, which the Supreme Court welcomed and duly recorded in its order.

At the conclusion of the comprehensive process outlined above, the Supreme Court issued the following directions in the judgement in Suo Moto Writ (Crl) No. 1/2017:

“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 finalized in terms of the above discussion. The following directions are hereby issued:

(a) 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 concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months.

(b) 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.

21. The suo motu proceeding is disposed of in terms of the above directions”.

“Constitution of India – Article 141:

“141. Law declared by Supreme Court to be binding on all courts.

The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

Very unfortunately, the law declared by the Supreme Court under Article 141 of the Constitution of India in the matter of criminal trial guidelines which is binding on all courts within the territory of India are often being ignored and disobeyed by many trial courts as at present.

Buried within the Draft Rules of Criminal Practice, 2021 is a direction which, if effected in Indian trial courts, could revolutionise the country's criminal jurisprudence. Its impact would be akin to the Brady Rule (established in Brady v. Maryland, 373 U.S. 83 (1963)), which mandated that the prosecution disclose all evidence, including exculpatory material (suggesting the innocence of the accused), to the defence—fundamentally reshaping criminal justice in common law countries, beginning with the United States.

A Brief History of Disclosure Requirements for Exculpatory Evidence in Criminal Trials under the Adversarial Model (Common Law Countries)

As mentioned above, before Brady v. Maryland (1963), defendants in the United States were significantly disadvantaged as prosecutors could legally withhold exculpatory evidence. The Brady Doctrine addressed the power imbalance caused by unequal access to information by mandating the prosecution's disclosure of all evidence, including any material that could exonerate the defendant or otherwise undermine the prosecution's case.

Similar was the situation in England, where prosecutors could—and often did—withhold exculpatory evidence to secure convictions. Early decisions, such as R v Bryant and Dickson [1946] 31 Cr App R 146 and Dallison v Caffery [1965] 1 QB 348, recognized the Crown's duty to disclose to an accused the existence of a witness who could provide material evidence. Over time, the rule expanded into a general duty to disclose evidence of any kind which might reasonably be thought capable of assisting an accused. This shift was largely driven by a few notorious mistrials where crucial evidence had been concealed. One notable example is R v Ward [1993] 1 WLR 619, wherein failure to disclose scientific material undermining the reliability of key forensic evidence led to the quashing of a conviction for bomb-related offences nearly twenty years after the original trial.

However, it was only as recently as 1996 that the Criminal Procedure and Investigations Act, 1996 codified the prosecution's duty of disclosure in the UK. The Act introduced a two-stage process of disclosure: initial disclosure under Section 3 and continuing disclosure under what is now Section 7A. According to the Expert Guidance on Disclosure, Unused Material and Case Management (Crown Prosecution Service, UK, updated November 20, 2023), both provisions require prosecutors to disclose any material that “might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused (the disclosure test)”. (https://www.cps.gov.uk/legal-guidance/expert-guidance-disclosure-unused-material-and-case-management).

In Canada, the prosecutor's disclosure obligations were firmly established in the seminal case, R v Stinchcombe ([1991] 3 SCR 326). In this decision, the Supreme Court of Canada articulated the Crown's duty to disclose relevant information to the accused. While broad, this obligation is not absolute; the prosecutor retains discretion regarding the timing of disclosure and may withhold information for legitimate reasons, such as protecting police informers, cabinet confidences, national security, international relations, or national defence. However, as a general principle, it is the duty of the prosecutor to disclose all material intended for use at trial; especially all evidence which may assist the accused, even if the prosecutor does not propose to adduce it. This duty extends to both inculpatory and exculpatory information—any material that could “reasonably be used by the accused either in meeting the case for the prosecution, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.” Information is considered relevant if withholding it could reasonably impair the accused's ability and right to make full answer and defence.

In all cases, regardless of whether a request has been made, the prosecutor is obliged to disclose any known information that suggests the accused may not have committed the offense charged. Failure to meet this obligation may require a prosecutor to stay or withdraw charges or seek a judicial stay of proceedings. The purpose of disclosure is twofold: 1. to ensure the accused is fully aware of the case to be met and is able to prepare a full answer and defence; and 2. to facilitate the resolution of facts in issue, including, where appropriate, the entering of guilty pleas at an early stage in the proceedings. Importantly, disclosure is not even limited to admissible evidence; information need only be relevant, reliable, and not subject to privilege. The prosecutor's duty is ongoing, extending throughout the legal process, even beyond conviction, including after appeals have been decided or the time of appeal has elapsed!

In Australia as well, until relatively recently, prosecutors had no legal duty to disclose any information to the defence before trial—not even the indictment. However, disclosure requirements in Australian criminal trials have since evolved to align more closely with those in the United States, the United Kingdom, and Canada. Despite this progress, disclosure obligations remain fragmented, governed by a “patchwork of common law obligations, prosecution guidelines, and statutory and ethical rules” (Edwards v The Queen [2021] HCA 28 at [48]). Although some modest disclosure requirements were inherited from the UK, the modern prosecutorial duty of disclosure in Australia was not firmly established until R v Reardon (No 2) in 2004 and Mallard v R in 2005. Historically, Australian courts took a hands-off approach, deferring to the prosecutor's discretion. Lane B, in Fair Trial and the Adversary System: Withholding of Exculpatory Evidence by Prosecutors (1981), described the prevailing attitude: “The general approach of the Australian courts to the non-disclosure of exculpatory evidence is to leave it to the unguarded discretion of the prosecutor. Such an approach appears to be founded on the concept of the prosecutor as a 'minister of justice' who can be trusted to ensure that justice is done.” However, in Mallard (9 (2005) 224 CLR 125), Kirby J rejected this outdated perspective. He conducted an extensive analysis of disclosure rules in other common law jurisdictions, tracing their development over the past 50 years and concluded that there is a “…requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused”.

Today, Australian criminal jurisprudence requires prosecutors to disclose all evidence - both inculpatory and exculpatory - including even seemingly minor details that could assist the defence. This obligation is grounded in three key principles:

1. The rule of law requires it.

2. The role of the prosecutor requires it.

3. The administration of justice requires it.

In New Zealand, the Criminal Disclosure Act, 2008, imposes a statutory duty to disclose all relevant information, including exculpatory evidence, in criminal investigations and prosecutions. This obligation extends to any material that could support or challenge the case against an accused.

In countries with an inquisitorial criminal justice system, the “rule of discovery" essentially ensures that all relevant evidence gathered during the pre-trial investigation - whether favourable to the prosecution or defence - is disclosed to the court. This approach reflects the active role of the investigating judge, who is responsible for fact-finding rather than merely acting as a neutral referee between opposing parties, as is the case in adversarial systems.

Unfortunately, the Code of Criminal Procedure, 1973 (CrPC) and now the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) effective from 01 July 2024 provides for disclosure of evidence by the prosecution to the defence as follows:

CrPC 1973:

Section 173. Report of police officer on completion of investigation.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report -

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation.

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

Section 207. Supply to the accused of copy of police report and other documents.

- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of post, a copy of each of the following:

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for exclusion has been made by the police officer under sub-section (6) of section 173;

(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 under sub-section (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

208. Supply of copies of statements and document to accused in other cases triable by Court of Session.

- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under section 161 or section 164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

BNSS 2023:

Section 230. Supply to accused of copy of police report and other documents.

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay, and in no case beyond fourteen days from the date of production or appearance of the accused, furnish to the accused and the victim (if represented by an advocate) free of cost, a copy of each of the following:

(i) the police report;

(ii) the first information report recorded under section 173;

(iii) the statements recorded under sub-section (3) of section 180 of all persons whom the prosecution 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 (7) of section 193;

(iv) the confessions and statements, if any, recorded under section 183;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (6) of section 193:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused and the victim (if represented by an advocate) with a copy thereof, may furnish the copies through electronic means or direct that he will only be allowed to inspect it either personally or through an advocate in Court:

Provided also that supply of documents in electronic form shall be considered as duly furnished.

Section 231. Supply of copies of statements and documents to accused in other cases triable by Court of Session.

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 227 that the offence is triable exclusively by the Court of Session, the Magistrate shall forthwith furnish to the accused, free of cost, a copy of each of the following:

(i) the statements recorded under section 223 or section 225, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under section 180 or section 183;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court:

Provided further that supply of documents in electronic form shall be considered as duly furnished.

(Emphasis / bold above by the author)

A Brief History of Disclosure Requirements for Exculpatory Evidence in Criminal Trials in India

The statutory provisions and judicial precedents set by various courts, including the Supreme Court, have historically restricted the right of the defence/accused in India to receive only “relied upon” documents and witness statements. In effect, this means that prosecutors—and by extension, investigating agencies and officers—are legally obligated to disclose only the materials they choose to rely upon, while withholding other evidence, including potentially exculpatory material that could establish the innocence of the accused. This restriction stands in stark contrast to the fundamental right to a fair trial, which is deeply enshrined in the golden triangle of Articles 14, 19, and 21 of the Indian Constitution. The right to a fair trial is not only central to the Rule of Law in India but has also been recognized as part of the basic structure of our Constitution. Yet, despite upholding and pontificating the right to and importance of a fair trial, Indian courts did not extend this right to include the mandatory disclosure of all evidence in the prosecution's possession, even when such evidence was exculpatory.

This unfettered right of the prosecutor (and investigating agency/officer) to use “relied upon” documents while not disclosing other evidence was based on the idealistic assumption that prosecutors and investigating officers would always act in a fair, unbiased, and just manner. However, as any practicing lawyer in India knows from firsthand experience in court rooms across the country, this assumption is far removed from reality in contemporary India. This very flaw in the system underscores the urgent need for a Brady Rule moment in India's criminal justice system, ensuring that exculpatory evidence is disclosed to the defence as a matter of right.

Before the seminal Suo Moto Writ (Crl) No. 1/2017 judgment, the Supreme Court of India had taken some steps toward the disclosure of “not relied upon” documents in two separate judgments. These decisions recognized the significance of disclosure and its impact on the fairness of a trial. However, they ultimately fell short of establishing a binding rule requiring full disclosure in all criminal trials.

In April 2010, in the matter of Manu Sharma v. NCT of Delhi (Manu Sharma v. NCT of Delhi (2010) 6 SCC 1), the Supreme Court made a significant pronouncement on the concept and importance of fair disclosure. The Court emphasized that fair disclosure encompasses the furnishing of all relied upon documents to the accused, regardless of whether these documents have been formally filed in the Court. Notably, the Court highlighted the contrast between Section 173 of CrPC, which explicitly refers to “documents on which the prosecution relies”, and Section 207 of CrPC, “which lacks such precise language”. In light of this, the Court opined that Section 207 of CrPC must be interpreted liberally and expansively to achieve its intended purpose.

Subsequently, in September 2012, in the landmark judgment in V. K. Sasikala v. State (V. K. Sasikala v. State (2012) 9 SCC 771), the Supreme Court further fortified the rights of the accused in relation to access to documents. In this case, the Court upheld the accused's right to access certain papers submitted to the Court by the investigating agency but not exhibited by the prosecution because such papers favoured the accused. The Court recognized that the accused may encounter difficulties in explaining certain aspects of the prosecution's case without access to specific documents and that some potentially incriminating evidence could be better understood in conjunction with other documents. In such circumstances, the Court stressed the importance of affording the accused an opportunity to satisfy themselves in this regard.

Furthermore, the Court clarified in V. K. Sasikala v. State (supra) that the determination of whether prejudice is being caused to the accused should not rest solely with the prosecution or the Court. If the accused reasonably feel burdened by such concerns, it becomes the duty of the Court and the prosecution to address and dispel those apprehensions at the earliest stages of the trial process. The judgment reaffirmed that the right to a fair trial—enshrined in Article 21 of the Constitution—extends beyond mere compliance with Section 207 of CrPC. Instead, it falls within the broader constitutional doctrine of fairness in criminal proceedings, which the courts have meticulously developed through a purposive interpretation of Article 21. This principled approach by the Supreme Court was the first major decision that sought to protect the rights of the accused by acknowledging their right to access exculpatory evidence held by the prosecution or investigating agencies—thereby aiming to preserve the sanctity of justice in a system that had, until then, favoured and relied on the integrity and benevolence of the prosecution.

Despite the progressive stance taken in V. K. Sasikala v State (supra), the judgment did not go so far as to impose a binding mandate on trial courts, prosecutors, or investigating agencies to disclose not relied upon documents. In practice, this meant that even after this ruling, prosecutors, investigating officers, and trial courts largely continued with the longstanding practice of disclosing only relied upon documents. The essence of the judgment - promoting full disclosure in the interest of justice - remained largely unimplemented, as key stakeholders in the criminal justice system resisted any meaningful change.

The Change in the Disclosure Requirements for Exculpatory Evidence in Criminal Trials with the Supreme Court Judgement in Suo Moto Writ (Crl) No. 1/2017

It is in the above context that one has to read, review, and recognise the significance of paragraph 11 of the judgement in Suo Moto Writ (Crl) No. 1/2017 wherein the Court states “The amici pointed out that at the commencement of trial, accused are only furnished with list of documents and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208, Cr. PC, the magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be 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 the Cr. PC. 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)]”, and the directions therein mandating supply of the list of not relied upon documents and evidence to the accused.

Draft Criminal Rules On Practice, 2021 (appended to the judgement in Suo Moto Writ (Crl) No. 1/2017.

Supply Of Documents Under  Sections 173, 207 AND 208 CR.PC

i. 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.

This marks a seminal and fundamental shift in criminal jurisprudence and trial procedures in India. The explanation within the newly introduced rule establishes a clear legal duty on the prosecutors, as well as the investigating agencies and officers, to provide a list of statements, documents, material objects, and exhibits—including those not relied upon by the prosecution. This change ensures that the defence gains at least basic access to potentially exculpatory evidence in the prosecution's possession, which may have been inadvertently overlooked in the pursuit of charges and convictions or deliberately concealed to prejudice the defence for a variety of reasons including bias, corruption, political pressure, bureaucratic interference, or media influence.

This access to the list of not relied upon documents provided by the Supreme Court through the Draft Criminal Rules on Practice, 2021, is of great value to the defence considering the unfortunate consequences arising from the judgement in State of Orissa vs Debendra Nath Padhi (2004 (1) SCC 568) by a three judges' bench which restricted the right of the defence to invoke section 91 CrPC to produce documents or evidence desirable for the defence of the accused at the discharge / framing of charges. The Court ruled that “If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. In so far as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence.”

The impact of this ruling has been profound and detrimental. Thousands of accused have been forced to undergo lengthy and unnecessary trials, despite either prosecution and/or defence possessing exculpatory evidence that, if considered at the charge-framing stage under Section 91 of the CrPC, could have led to their discharge. This would have spared the accused the emotional and financial toll of prolonged trials, saved millions of hours of valuable judicial time, and prevented wrongful prosecutions. (A detailed follow-up article on the implications of this judgment will be published in the coming weeks.)

Subsequent to the transformative judgement in Suo Moto Writ (Crl) No. 1/2017, at least four more judgements have been delivered by the Supreme Court reaffirming the essence of the judgement and the directions in the Suo Moto Writ (Crl) No. 1/2017 case.

In November 2022, in P. Ponnusamy v. State of Tamil Nadu (2022 SCC OnLine SC 1543), another full bench of the Supreme Court, with a 2:1 majority, considered the Draft Criminal Rules on Practice, 2021. In this judgement, the Supreme Court clarified that the failure of some High Courts or State Governments / Union Territories in implementing the Draft Rules cannot prejudice the rights of any accused that have already been recognized in the judgement in Suo Moto Writ (Crl) No. 1/2017. The Court considered the possibility that the Investigating Officer (“IO”) may overlook or deliberately disregard seized documents, material, or evidence that favour the accused, leading to their non-submission to the trial court. In such situations, the Court ruled that the absence of such material in the court record should not deprive the accused of their right to access potentially exculpatory material which establishes their innocence.

In July 2023, the Supreme Court of India dismissed the appeal filed by the CBI in Central Bureau of Investigation ('CBI') v. M/s INX Media (P) Ltd. & Ors. (Special Leave to Appeal (Crl.) No (s). 1274/2022) thereby the matter attaining finality further to the judgement of the Delhi High Court in Central Bureau of Investigation v. INX Media (P) Ltd. & Ors. (2021 SCC OnLine Del 4932) which had addressed this issue of access to and supply of not relied upon documents to the accused. In the instant case, the Delhi High Court had ordered that during the stage of charge framing, the accused have the right to bring any not relied upon document discovered during the investigation to the court's attention, even if withheld by the investigating agency. In this case, the Delhi High Court even permitted the defence to inspect the documents kept in the CBI Malkhana Room (the room where case properties are stored) except those documents which may have a bearing on the continuing investigation, if any. In doing so, the Delhi High Court sought to strike a balance between ensuring a fair trial and preserving the sanctity of further investigation, if necessary.

In August 2023, in Manoj & Ors. v. State of Madhya Pradesh (2023 2 SCC 353), a two judges' bench of the Supreme Court further highlighted the importance of procedural fairness in all criminal trials. The Court mandated that the prosecution must provide a list of all statements, documents, material objects, and exhibits that are not relied upon by the IO clarifying that this disclosure obligation is to be followed.

In May 2025, in Sarla Gupta & Anr v. Directorate of Enforcement (Crl. A. No. 1622/2022), a three judges' bench of the Supreme Court of India (Justice Abhay S Oka, Justice Ahsanuddin Amanullah, and Justice Augustine George Masih) further reaffirmed the right of the accused to receive the list of the documents and statements, which were collected by the Investigating Agency, in this case - the Directorate of Enforcement - during the investigation but were later given up by them while filing the prosecution complaint. The Court held that the accused must have knowledge about the not relied upon documents, so that the accused can apply for their production at an appropriate stage. The Bench also added that if and when an accused makes such an application, the Courts should be liberal in allowing them, and should deny only in exceptional circumstances, given the reverse burden imposed by the PMLA. Interestingly, the Court also held as follows “Thus, we conclude that at the time of hearing of charge, reliance can be placed only on the documents forming part of the chargesheet. In case of PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaint. Though the accused will be entitled to the list of documents, objects, exhibits etc., that are not relied upon by the ED at the stage of framing of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge”. This is important as the bench carved out “in ordinary course” for the accused not being entitled to use not relied upon documents etc. at the framing charge stage thereby reaffirming Debendra Nath Padhi (supra) and Nitya Dharmananda & Anr. v. Gopal Sheelum Reddy & Anr ((2020) 7 SCC 1) that this restriction on the accused to use not relied upon documents at framing of charge is in “ordinary course” and in extra ordinary situations and when there are documents of sterling quality, these may be used even at the framing of charge stage also.

As a result, we now have four additional Supreme Court judgments, two of them three judges' benches, affirming the rights of the accused, including their entitlement to access and receive not relied upon documents at the discharge or charge-framing stage even in a stricter penal law proceeding as one under PMLA. However, while trial courts in Delhi and Mumbai have begun to follow the dictum, most trial courts in the rest of the country continue to refuse to follow the Draft Rules despite the Supreme Court's clear mandate. The Court had set a six-month deadline for implementation, which lapsed on September 20, 2021. In P. Ponnusamy v. State of Tamil Nadu (supra), the Supreme Court further reiterated that the failure of certain High Courts, State Governments, or Union Territories to implement the Draft Rules cannot prejudice the rights of the accused already recognized in Suo Moto Writ (Crl) No. 1/2017. Yet, as we stand in June 2025 - 50 months since the landmark judgment - the majority of trial courts in India still fail to adhere to this directive. There also remains a lack of clarity regarding how many, if any, High Courts have formally notified the Draft Criminal Rules of Practice, 2021 within their respective jurisdictions.

Status of Implementation of Draft Rules in Trial Courts across India

Our firm's research into the notification and implementation of the Draft Criminal Rules of Practice, 2021 - conducted through High Court websites, State/UT government portals, and legal publications - reveals scant information on whether these rules have been formally adopted and enforced across various High Courts and States. While trial courts in Delhi and Mumbai and few other cities across India have started following the dictum of the Supreme Court in Suo Moto Writ (Crl) No. 1/2017, most trial courts are still reluctant to follow the order of the Supreme Court despite 50 months having passed since the landmark judgement. With this being the situation in regard to most of the trial courts across India not following a direct and clear judgement of the Supreme Court in Suo Moto Writ (Crl) No. 1/2017 which directed that the list of not relied statements, documents, material objects and exhibits should be given to the accused to secure the fundamental right to a fair trial for the accused in criminal trials in India, is it unreasonable to wonder whether the Supreme Court of India is still supreme in India?

The author is an Advocate , views are personal.

The author thanks Advocates Anish Kalathil, Jinesh Kannoth and Ms. Fathima Richelle Mather, for their support in editing and citation management.