Playing ping-pong over evidence

Police conduct a flag march in riot-affected north-east Delhi. File

Police conduct a flag march in riot-affected north-east Delhi. File

Section 207 of the Criminal Procedure Code (CrPC) states that an accused should be supplied free of cost all documents used as evidence against him by the prosecution. The documents can include FIRs, copies of police reports, electronic evidence or confessional statements that may help to prepare a defence during the trial.

But this legal provision has become a bone of contention in the Delhi riots ‘larger conspiracy’ case. The accused have moved applications seeking evidence, that they claim, has not been provided to them but relied upon by the prosecution in the chargesheet. The majority of these applications are pending disposal.


The prosecution has, however, submitted that it has provided all evidence but the accused are seeking material over and above the chargesheet. The court has also been informed that the evidence such as the seized phones, contain “private material” of the accused and, therefore, cannot be provided to a co-accused without distinction.

In April last year, Pinjra Tod activist Devangana Kalita had moved a plea seeking the electronic evidence against her. In September, her lawyer informed the court that they were still awaiting the prosecution’s response.

“Five months have passed. Where is the scope of Section 207 application if there is no speedy redressal,” argued Kalita’s advocate Adit Pujari.

‘Voluminous data’

Special Public Prosecutor (SPP) Amit Prasad submitted that the data collected during the investigation was huge and needed further analysis for distribution.

“It contains personal data of people whose equipment have been seized. If I supply data without any distinction, it amounts to infringing on their privacy. I need to analyse and conclude which data is to be given,” Mr. Prasad told the court, which had also raised concerns regarding the supply of private material to co-accused.

Mr. Pujari cited an April 2021 Supreme Court order that said every accused shall be supplied with statements of witnesses recorded under Sections 161 and 164 of CrPC and a list of objects, material objects and exhibits seized during investigation and relied upon by the Investigating Officer (IO) in accordance with Section 207 of CrPC.

Nine months on, the application, along with several others, awaits disposal. Last March, when Jamia Millia Islamia student Asif Iqbal Tanha’s lawyer sought a cloned copy of his seized mobile phone, the prosecution told the court that “midway into investigations, it cannot keep distributing material against the accused”.

Advocate Sowjhanya Shankaran for Tanha had submitted that it is the prosecution’s bounden duty to provide him his phone’s data. “These are data, WhatsApp chats, alleged speeches already relied on by them but I need to know the entire content. It’s not the job of the prosecution to pick and choose what to rely upon,” the lawyer told the court. It took Tanha seven months to get the cloned copy of his cellphone.

‘Hard or soft copy?’

The provision posed a deterrent when the court directed the prosecution to supply hard copies of the chargesheet to the accused, in addition to the soft copies already given. The prosecution challenged the order before the Delhi High Court, stating that Section 207 of CrPC mandates supplying a copy of each of the reports, statements or documents, subject to reasonable exception.

The plea said, “The law does not specify supply of a ‘hard copy’ or ‘soft copy’, nor does it draw any distinction between the two.” It added that the provision did not cast any duty upon the investigating officer or agency to bear the cost of the accused’s copy.

The High Court stayed the trial for five months and vacated it after the prosecution informed that the chargesheet hard copies were ready to be provided to the accused.

A defence lawyer, requesting anonymity, said the prosecution has been denying them the complete set of documents as it might “ruin their case”. “If they provide us with the electronic evidence, it might have some content in our favour, which will help us during the trial but work against the prosecution,” the lawyer told The Hindu .

Another lawyer said: “We are only asking for the material that the prosecution is obliged to provide us; not anyone’s private content. But if they have relied on specific data and are calling it a conspiracy then we are bound to get access to it.”

SPP Prasad said that the material sought is part of an ongoing police probe , which cannot be supplied to the accused whose case is pending investigation. “We are clear on relied evidence and have already supplied it to the accused, but the lawyers are asking for data not relied upon like certain audio files and recordings that have subsequently come to the knowledge of the police. They wrongly claim that documents provided are illegible and seek bail citing delay in trial,” he said.

“How can I provide content which will be the subject matter of further investigation? It will be filed in court as supplementary chargesheet and copies will be provided to them,” Mr. Prasad said.

Legal experts said the prosecution often provides “illegible” and “piecemeal” material to the accused, which invariably leads to delay in the trial. “The prosecution gives imperfect copies of evidence such as a missing page and that drags the matter,” advocate Sarim Naved said.

“Lawyers might want the evidence to confront the prosecution witnesses during trial , so often applications are filed to keep it in safe custody so that they can’t claim later that the evidence is lost,” Mr. Naved said.

Advocate M.R. Shamshad said: “When the prosecution delays the process by claiming that it will file supplementary chargesheets after further probe, in such cases the accused should get a default bail under Section 167 of CrPC if the investigation has not been completed within 60 to 90 days of arrest.”

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Printable version | May 27, 2022 5:44:46 pm |