By Rushab Aggarwal
In Brady v. State of Maryland[1], the United States Supreme Court paved the way in recognizing and emphasizing a celebrated right in favor of an accused that concealment of exculpatory evidence by the prosecution violates the due process clause under the fourteenth amendment to the United States Constitution, irrespective of whether such suppression was in good faith or bad faith. Prosecutorial misconduct of such kind became a ground for the judge to declare a mistrial.
A Brady violation is that species of prosecutorial misconduct, which crosses the threshold which a just trial can persevere. It has the iniquity to demolish the sanctity of the entire prosecution. In what terms do such violations impact prosecutions in India and in what manner can the procedural safeguards envisaged within the Code of Criminal Procedure provide respite to the innocent?
Prevalent in the Indian criminal justice system today, is a largely myopic approach, where the prosecution and the police are willing to say that simply because an offence has occasioned, someone must be held liable. It would seem that nobody is willing to bat an eyelid about the serious constitutional and civil rights infraction which would ensue if an accused is wrongly convicted. Blackstone’s time-tested formulation in Criminal Law that let “…ten guilty men escape, than one innocent suffer’ has foreseeably vaporized. Apparently, the notion to deliver justice to the victim, at the cost of framing just anybody, notwithstanding his innocence, has permeated the system. And this is why the criminal justice system is willing to turn a blind eye towards prosecutorial misconduct.
Unlike the United States where the State’s Attorney (or the United States’ Attorney) take even preliminary decisions such as who to charge and for what offence, the CrPC envisages the prosecutors to get involved only at the stage of trial i.e. after the chargesheet has been filed. Prosecutors in India, therefore, do not guide the course of the prosecution at the stage of the investigation. Several substantial decisions including inter alia who is being charged, with what offence are they being charged, and what evidence is to be filed with the chargesheet are taken almost solely by the investigating agency.
Therefore, while in the US, Brady violations of concealment of exculpatory evidence are largely at the hands of the prosecution, in India they would mean to include the possible concealments by the police in their investigation as well.
The Supreme Court of India, in Manu Sharma v. State (NCT of Delhi)[2] has emphatically held that “…The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.”
The court further goes on to state that “…It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law….The investigation should not prima facie be indicative of a biased mind …”
So far as the expectation from a prosecutor during trial is concerned, a three-judge Bench of the Supreme Court of India, in Shiv Kumar v. Hukam Chand[3], in unequivocal terms held that “[a] Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge.”
It, therefore, does not need restatement that the Supreme Court has time and again held that unbiased investigation and as a sequitur, fair trial are essential concomitants of Article 21 of the Constitution of India.
This is also why preliminary procedural safeguards, which aid in avoiding a protracted trial, have also been envisaged by the legislature to weed out prosecutions without any merit. These safeguards for the police are in the form of filing closure reports under Section 169 of the CrPC when they are satisfied “that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate”.
For the courts, these are in the form of discharging the accused under Sections 227(or 239) of the CrPC, where “[i]f, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”.
However, it must be ensured that even at the pre-trial stage of hearing the accused on his application for discharge, all evidence (inculpatory and most definitely exculpatory) is placed before the court and made available to the accused at the time of discovery, in accordance with Section 207 of the CrPC, to enable him to avail these safeguards.
Even otherwise in Nitya Dharamananda v. Gopal Sheelum Reddy[4], the Supreme Court has unlocked the power of the trial court stating that “while ordinarily the Court has to proceed on the basis of material produced with the charge-sheet for dealing with the issue of charge but if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such document is not a part of the charge-sheet…”. This judicial precedent recognizes a power of the trial Court, akin to the powers of the High Court under Section 482 CrPC, so far as the summoning of material evidence (which may possibly be exculpatory) is concerned.
Be that as it may, these theoretical safeguards would only be worth the paper they are printed on if they are actually exercised in a purposeful manner to protect the rights of the accused.
It may be argued that it would be a greater travesty of justice if prosecutions are declared suspect for prosecutorial misconduct, as it is ultimately the victims and society at large which suffers. There can be no challenge to this argument, for it is essential that the public confidence in the criminal justice system is not eroded.
Therefore, to balance both ends, it is warranted that the investigating agency is extremely circumspect and ensures that it is not investigating with a pre-determined approach and does not overlook any material which shows to the innocence of the accused and that the prosecution makes a conscious attempt to place all material before the court, whether it helps it or it damns it.
An impartial and dispassionate investigating agency and equally ethical prosecutors are the fulcrum on which the concept of fair trial stands. The framers of the Constitution never envisioned the concept of a just trial to be a mirage. In it lies the belief of those men, and their families who truly believe they are innocent and that the justice system will match heavens and earth to vindicate them with their honor.
[1] 373 US 83 (1963)
[2] (2010) 6 SCC 1
[3] (1999) 7 SCC 467
[4] (2018) 2 SCC 93