Kerala High Court
Varghese Kuruvila vs State Of Kerala on 5 September, 2024
2024:KER:66881
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024/14TH BHADRA, 1946
CRL.MC NO.6592 OF 2024
CRIME NO.VC/2/12/KTM/2012 OF VACB, KOTTAYAM
AGAINST THE ORDER/JUDGMENT DATED 26.06.2024 IN CRL.M.P
797/2024 IN CC NO.3 OF 2014 OF ENQUIRY COMMISSIONER AND
SPECIAL JUDGE (VIGILANCE), KOTTAYAM
PETITIONER/ACCUSED:
VARGHESE KURUVILA, AGED 54 YEARS,
S/O.A.B.KURUVILA, ADIYAYIL HOUSE,
PERINGARA VILLAGE, CHATHANKARY P.O.,
PATHANAMTHITTA, PIN - 689112.
BY ADVS.
AKHIL VIJAY
C.S.AJAYAN
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU,
KOTTAYAM COLLECTORATE P.O.,
KOTTAYAM, PIN - 686002.
BY ADVS.
RENJITH B.MARAR, AMICUS CURIAE
A.RAJESH, SPECIAL PUBLIC PROSECUTOR(VIGILANCE)
REKHA.S, SR.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
23.08.2024, THE COURT ON 05.09.2024, PASSED THE FOLLOWING:
Crl.M.C.No.6592 of 2024
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2024:KER:66881
'C.R'
O R D E R
Dated this the 5th day of September, 2024
Can the accused in a criminal trial lay his hands
on statements, documents and material objects
collected during the course of investigation, but
which are not relied upon by the Investigating
Officer? It is this question which falls for
consideration in this Criminal Miscellaneous Case,
which stems from the interpretation of Rule 19(4)
of the Criminal Rules of Practice, Kerala, 1982
(the Rules, for short). Before referring to the
Rule as such, it is necessary to advert to the
factual premise, which occasioned the above
Crl.M.C. The petitioner is the sole accused in
C.C.No.3/2014 of the Special Court, Kottayam. The
offences alleged are under Section 7 and Section
13(1)(d), read with Section 13(2) of the
Prevention of Corruption Act. The case was
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scheduled for trial on 05.08.2024. While so, on
15.05.2024, the petitioner/accused filed an
application (Annexure-A2) under Rule 19(4) of the
Rules, seeking a direction to furnish a list of
documents and material objects, including the
statements, documents and material objects which
are not relied upon by the investigation officer.
By Annexure-A3 order, the same was dismissed by
the learned Special Judge, finding that Rule 19(4)
was introduced as an amendment of the year 2022,
whereas the final report in the case was filed as
far back as, in 2014. Learned Special Judge found
that there was no mandate to supply the documents
sought for in Annexure-A2 application at the time
of filing the final report. On such premise,
Annexure-A2 was dismissed vide Annexure-A3, which
is under challenge in this Crl.M.C.
2. Having regard to the complexity of the issue
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involved, this Court appointed Sri.Renjith B.
Marar as the Amicus Curiae.
3. Heard Sri.Akhil Vijay, learned counsel for the
petitioner; Smt.Rekha.S, learned Senior Public
Prosecutor for the 1st respondent; Sri.A.Rajesh,
learned Special Public Prosecutor for the 2nd
respondent and also the learned Amicus.
4. This Court will first deal with the
submissions made by the learned Amicus. Learned
Amicus would invite the attention of this Court to
the history and genesis of the right recognised
under Rule 19(4) to a suo motu proceeding
registered by a three Judges Bench of the
Honourable Supreme Court under Article 32 of the
Constitution, titled In Re: To Issue Certain
Guidelines Regarding Inadequacies and Deficiencies
in Criminal Trials v. State of Andhra Pradesh and
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Others reported in 2021 (3) KHC 273 : 2021 (10)
SCC 598 (‘suo motu proceeding’, for short). The
Honourable Supreme Court took note of common
deficiencies in criminal trials and the dichotomy
in certain practices adopted by trial courts. Lack
of clarity and uniformity in the Criminal Rules of
Practice formulated by various High Courts in the
country was also taken stock of. A Draft Rules on
Criminal Practice, 2021 was propounded by the
learned Amici curiae appointed in that case, to
which the response of various States were called
for. After considering their response, the Draft
Rules, appended to the judgment in suo motu
proceeding, was accepted and finalised by the
Honourable Supreme Court, with suitable
modifications. All High Courts were directed to
take expeditious steps to incorporate the Draft
Rules on Criminal Practice, 2021 to the rules
governing criminal trials. Necessary directions
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were issued to State Governments as well.
5. One among the aspects, which gained the
attention of the Honourable Supreme Court in the
Draft Rules is regarding the list of documents and
statements, which are furnished to the accused at
the commencement of trial, which is specifically
dealt with in paragraph no.11 of the suo motu
proceeding, to which my attention is invited by
the learned Amicus. Paragraph no.11 is extracted
here below:
“11. 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
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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)]”
6. The modified Rule 4(i) in the Draft Criminal
Rules on Practice, 2021 appears as follows:
“4.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, 208, Cr.PC.
Explanation: The list of statements,
documents, material objects and exhibits
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shall specify statements, documents,
material objects and exhibits that are not
relied upon by the Investigating Officer.”
7. It is in accord with the directions in the suo
motu proceeding and the Draft Rules on Criminal
Practice, 2021 that Rule 19(4) was introduced to
the Criminal Rules of Practice in Kerala, which
reads thus:
“19(4) Every accused shall be supplied
with statement of witnesses recorded and a
list of documents as are mentioned in
Sections 173, 207 and 208 of the Code. In
addition, every accused shall be supplied
with a list of the material objects which
the Investigation Officer relies upon. The
list shall also specify those statements,
documents and material objects that are
not relied upon by the Investigating
Officer.”
8. Another three Judges Bench of the Honourable
Supreme Court considered the issue again in Manoj
and others v. State of Madhya Pradesh [2023 (2)
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SCC 353]. The Honourable Supreme Court took stock
of the directions contained in the suo motu
proceeding and opined in paragraph no.179 that the
prosecution, in the interests of fairness, should
as a matter of rule, in all criminal trials comply
with the rule and furnish the list of statements,
documents, material objects and exhibits, which
are not relied upon by the Investigating Officer.
There was a direction to the presiding officers of
courts in criminal trials to ensure compliance of
the Rule.
9. A three Judges Bench of the Honourable Supreme
Court again considered the issue in Ponnusamy P.
v. State of Tamil Nadu [2022 SCC Online SC 1543].
In paragraph no.11 of Ponnusamy P. (supra), the
Supreme Court took stock of an earlier decision of
the Supreme Court in Siddhartha Vasisht @ Manu
Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1]
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and also Manoj and others (supra).
10. Thereafter, the Honourable Supreme Court took
stock of the dictum laid down in Manjeet Singh
Khera v. State of Maharashtra [2013 (9) SCC 276],
which held that the requirement of disclosure is
an intrinsic part of the right to fair trial under
Article 21 of the Constitution, which dictum was
subsequently reaffirmed in P. Gopalkrishnan v.
State of Kerala and Another [2020 (9) SCC 161].
The Honourable Supreme Court also referred to the
judgment in V.K.Sasikala v. State Rep. By
Superintendent of Police [2012 (9) SCC 771],
wherein the issue was with respect to an
application made by the accused in respect of
documents forwarded to the court under Section
173(5) Cr.P.C., but which were not relied upon by
the prosecution. The Honourable Supreme Court held
that, it is incumbent upon the trial court to
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supply the copies of these documents, as a facet
of just, fair and transparent investigation/trial
and the same constituted an inalienable attribute
of the process of fair trial, which Article 21
guarantees to every accused. Paragraph no.21 of
V.K.Sasikala (supra) was extracted in Ponnusamy P.
(supra), wherein it was held that what is material
is not the stage of making the request and that,
what is significant is the non-disclosure of
certain documents forwarded to the court by the
investigating agency for the reason that the same
favours the accused. V.K.Sasikala (supra) held
that a right in favour of the accused has to be
conceded, enabling access to the said documents,
if claimed.
11. Two things are important with respect to
V.K.Sasikala (supra). V.K.Sasikala (supra) was
rendered at a time when a provision similar to
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Rule 19(4) was not there in the Statute. Secondly,
the request in that case was in respect of certain
documents which were forwarded to the Magistrate,
though not relied upon by the prosecution. The
scenario was different at the time when
Ponnusamy P. (supra) was being considered, at
which point of time, the Rules in tune with the
directions of the Honourable Supreme Court in the
suo motu proceeding has not been framed in the
State of Tamil Nadu. The Supreme Court in
paragraph no.13 of Ponnusamy P. (supra) held that,
even in respect of documents not forwarded to the
Magistrate as required under Section 173(5)
Cr.P.C., the accused cannot be disentitled from
accessing such material, which may have an
exculpatory value. It is to fill up this lacuna
that Rule 4 in the Draft Rules, 2021 was
introduced with a requirement to provide a list of
all the documents, material evidence etc., seized
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during the course of examination, regardless of
the question whether the prosecution relies on it
or not. Now, the crucial findings in Ponnusamy P.
(supra) comes at paragraph no.17, which is
extracted herebelow:
“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
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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.
12. In Ponnusamy P. (supra), what has been
referred above is the majority judgment, to which
Bela M. Trivedi, J. dissented, for the reason
that, the Rules, as envisaged in the suo motu
proceeding, have not come into force, insofar as
the State of Tamilnadu is concerned.
13. Thus according to the learned Amicus, the
right of the accused in this regard as envisaged
by Rule 19(4) should be recognized, even if the
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same is sought to be enforced at the trial stage,
after the charges are framed, however, taking into
account the caveat as contained in paragraph
no.17(c) of Ponnusamy P. (supra) extracted above.
Learned Amicus would also submit that in a
situation where the right is sought to be enforced
after the commencement of the trial, the same has
to be decided on the basis of the principle
enshrined in V.K.Sasikala (supra), which has been
taken stock of and approved in Ponnusamy P.
(supra).
14. Learned counsel for the petitioner would
submit that the impugned order cannot be sustained
in view of the expatiation of law in Ponnusamy P.
(supra). Besides, a judgment of the learned Single
Judge of this Court in Akhil Sabu v. State of
Kerala [2024 (5) KHC 49] is also pressed into
service, which directed the trial courts to afford
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a specific posting for the compliance of Rule
19(4) before commencement of the trial. The
judgment in Akhil Sabu (supra) was directed to be
forwarded to all the Criminal Courts by the
District Registry, which emphasise the
significance of compilance of Rule 19(4). Learned
counsel would submit that, the refusal of such an
important relief, on the premise that Rule 19(4)
was not in force at the time when final report was
filed, would completely negate the seminal right
of fair trial of the accused, under Article 21.
15. Learned Special Public Prosecutor would
completely support and endorse the submissions
made by the learned Amicus, as also, the learned
counsel for the petitioner.
16. It appears that the issue should be presumed
to have attained a quietus by virtue of the law
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enunciated in Ponnusamy P. (supra). However, for
the sake of completion, this Court will refer to
the essential change which has been brought out by
Rule 19(4). Section 173(2) speaks of the
ingredients to be contained in a final report, to
be submitted by the investigating officer upon
conclusion of the investigation. As per Section
173(5), the police officer has to forward to the
Magistrate along with the report, all documents,
or relevant extracts thereof, on which the
prosecution proposes to rely upon and all
statements recorded under Section 161, again of
the persons whom the prosecution proposes to
examine as its witnesses. Out of the documents and
the statements so liable to be furnished under
Section 173(5), the police officer has got a
liberty/discretion under Section 173(6) to suggest
non supply of any part of the statement to the
accused, if such statement is either not relevant;
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or its disclosure is not essential in the interest
of justice; or in a case where it is inexpedient
to disclose the same in public interest. This
Court will also look into the requirements under
Rule 207 and 208 of the Code. While Section 173
speaks of the duty of the police officer, Section
207 carves out the rights of the accused as
regards supply of the police report/final report
and other documents. In cases which are triable by
a Court of Session, Section 208 takes care of the
situation. It is relevant to note that under
Section 207, the accused is entitled to the police
report/final report, the First Information Report
and also the statements recorded under Section
161(3), of those persons whom the prosecution
proposes to examine as its witnesses, excluding
therefrom any part which is sought to be exempted
under Section 173(6). The first proviso to Section
207 would clearly indicate that in respect of a
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request made under Section 173(6), the discretion
is ultimately left to the Magistrate, as to
whether the copy of the document is to be
furnished to the accused or not.
17. It is in addition to these requirements that
Rule 19(4) seeks to operate. It is pertinent to
note that Rule 19(4) speaks of statement of
witnesses and a list of documents mentioned in
Section 173, 207 and 208 of the Code. In addition,
every accused is to be supplied with the list of
material objects, which the Investigating Officer
relies upon. Upto this part of Rule 19(4), the
same is traceable to the requirements under
Sections 173, 207 and 208 of the Code. The
additional part comes in the last limb of Rule
19(4), which specifies that the list of documents
to be supplied to the accused shall also specify
those statements, documents and material objects,
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which are not relied upon by the Investigating
Officer. It is this part, which is ingrained into
the Rules, pursuant to the directions made by the
Honourable Supreme Court in the suo motu
proceeding. This Court also notice that Rule 19(4)
has been incorporated to Chapter-4 of the Criminal
Rules of Practice, which speaks of presentation of
pleadings, reports, documents and remands, which
would obviously indicate that the time for
compliance of Rule 19(4), is the time when the
requirements under Sections 207/208 have to be
complied with.
18. Learned counsel for the petitioner canvasses
an argument to the effect that, in the Draft Rules
forming part of the judgment in suo motu
proceeding, the requirement to furnish the list of
documents, statements and material objects which
are not relied upon by the Investigating Officer
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is brought in as an explanation to Rule 4 of the
Draft Rules, Rule 4 mandating supply of statement
of witnesses and list of documents, material
objects and exhibits seized during investigation.
Inasmuch as it has been introduced only as an
explanation to the right under Rule 4, the
amendment is only clarificatory in nature,
wherefore, it is liable to be reckoned as
retrospective in operation, is the counsel’s
submission.
19. This Court is not quite impressed with the
above argument, for two reasons. Firstly, the
Draft Rules, 2021 cannot be looked into for the
present purpose, since Rule 19(4) has been
engrafted to the Criminal Rules of Practice in
Kerala, where the Rule is not introduced as an
explanation, but as an independent provision.
Secondly, this Court is of the opinion that the
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applicability of Rule 19(4) shall not be adjudged
in the touchstone of prospectivity or
retrospectivity of the said rule. Instead, the
endeavour should be to fructify and crystallize
the rights conferred under Rule 19(4). The benefit
of the rule has to be translated to action in all
cases, where it is possible to do so. As pointed
out by the learned Amicus, though Rule 19(4)
appears to be procedural in nature, it constitutes
a new right in the hands of the accused to have
access to those documents, which are not relied
upon by the prosecution. Thus conceived, Rule
19(4) cannot be categorised as merely procedural,
but have shades of substantive rights as well. But
that interpretation is fraught with the danger of
an argument that an amendment touching substantive
rights can only be prospective, which, if
accepted, would result in complete negation of
such important right even in cases, where such
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rights can be given effect to. This Court is
therefore of the opinion that the focus should not
be on the prospectivity and restrospectivity, but
on the purpose, for which Rule 19(4) was
introduced; and any interpretation should be to
uphold and operationalize such right conferred
under Rule 19(4).
20. Now, the crucial question boils down to the
correctness of the line of thought adopted in the
impugned order that Rule 19(4) will apply and
operate prospectively, that is to say, only to
cases where the final reports are filed after
19.05.2022 – the date on which Rule 19(4) came
into force – at the time when Sections 207 or 208,
as the case may be, has to be complied with. This
Court is afraid whether that interpretation will
withstand the test of law. This Court will have to
first address the purpose for which Rule 19(4) has
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been introduced, as is elucidated in paragraph
no.11 of the suo motu proceeding. The accused has
a right for access to all materials, which are
collected during the course of investigation, be
it in the form of documents, statements or
material objects, dehors and independent of the
fact whether the prosecution seeks to rely upon
the same. The very reason that the prosecution is
not relying upon the same, may imply that it is
not in favour of the prosecution and may perhaps
be exculpatory in nature. As part of the right to
fair trial, well recognised under Article 21 of
the Constitution, the accused should have the
right to access, peruse and even rely upon such
material gathered during the course of
investigation, since the ultimate purpose of a
criminal trial is to unearth the truth.
21. If we bear in mind the above purpose of Rule
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19(4), the point of time at which the right is
sought to be enforced would pale into
insignificance. If such a right is sought to be
enforced before the commencement of the trial,
thereby meaning the examination of the witnesses,
there cannot be any reason, as to why the same
should be denied or deprived to the accused. The
legal position has been clarified in Ponnusamy P.
(supra) in paragraph no.17(a), where it is held
that it applies at trial stage, after the charges
are framed. By virtue of paragraph no.17(b), the
accused should be given an opportunity of
disclosure at that stage, of course, subject to
the caveat contained in clause (c) to paragraph
no.17, to rule out the possibility of delaying
tactics. In the above referred state of affairs,
shorn off the niceties and technicalities as
regards the point of time at which such an
opportunity is to be given to the accused, it
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should be the endeavour of every criminal court to
add life and force to Rule 19(4), so as to
safeguard an important right of the defense,
enshrined in under Article 21 of the Constitution.
Any interpretation otherwise would defeat the very
purpose of introduction of the rule, and also, the
purpose sought to be served by such introduction,
as has been highlighted by the Supreme Court in
suo motu proceeding. A situation may arise, where
the right is sought to be enforced after the
commencement of the trial. This scenario has not
arisen in the given facts and this Court is not
called upon to answer the issue. The same will be
addressed in an appropriate case, wherein, the
criminal courts may adequately and appropriately
be guided by the principles laid down in
V.K. Sasikala (supra) as approved in Ponnusamy P.
(supra).
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22. In the circumstances, the impugned order will
stand set aside. The learned Special Judge will
give an opportunity to the accused person in terms
of Rule 19(4) by directing the Investigating
Officer to produce a list specifying those
statements, documents and material objects, that
are not relied upon by the Investigating Officer.
This Court also cautions the learned Special Court
to take care of the caveat as contained in clause
(c) of paragraph no.17 in Ponnusamy (supra), to
ensure that exercise of the right under Rule 19(4)
will not become a camouflage/ruse for delaying the
trial. The petitioner is also directed to
co-operate with the speedy and efficacious conduct
of the trial. To ensure the above referred aspect,
this Court grants a time of two weeks from the
date of furnishing such list of documents for the
petitioner to take further action, if any, based
on such list and, at any rate, the matter can be
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listed for trial within a period of two months
from the date of receipt of a copy of this order.
23. This Court places on record its sincere and
profound appreciation to Sri.Renjith B.Marar, the
learned Amicus for the effective assistance
rendered to this Court in resolving the issue.
Sd/-
C.JAYACHANDRAN
JUDGE
SKP/ww
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APPENDIX OF CRL.MC 6592/2024
PETITIONER’S ANNEXURES:
ANNEXURE A1 A TRUE COPY OF THE FINAL REPORT FILED
BY THE VIGILANCE AND ANTI-CORRUPTION
BUREAU, KOTTAYAM IN FIR NO: VC
2/12/KTM.
ANNEXURE A2 A CERTIFIED COPY OF THE PETITION FILED
BY THE PETITIONER IN CRL.M.P
NO.797/2024 IN C.C.03/2014 DATED
15.05.2024 BEFORE THE HONOURABLE COURT
OF THE ENQUIRY COMMISSIONER AND SPECIAL
JUDGE (VIGILANCE), KOTTAYAM.
ANNEXURE A3 A CERTIFIED COPY OF THE ORDER PASSED BY
THE HONOURABLE COURT OF THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), KOTTAYAM DATED 26.06.2024
IN CMP NO.797/2024 IN C.C.03/2014.