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2024 (5) KHC J-71

The Law on Criminal Procedure -

Key Changes in the Bharatiya Nagarik
Suraksha Sanhita, 2023 -
Supply of copy of police report and other documents

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Justice R. Narayana Pisharadi

Former Judge, High Court of Kerala

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Part XXIII
Supply of copy of police report and other documents
Furnishing of documents to the accused before the commencement of the trial
of a criminal case is a facet of right of the accused to fair trial enshrined in
Article 21 of the Constitution of India. (P. Gopalakrishnan v. State of Kerala
[2019 (5) KHC 794 : AIR 2020 SC 1])
Section 230 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the
BNSS’) deals with supply of copy of police report and other documents to the
accused and the victim. This provision corresponds to Section 207 of the Code
of Criminal Procedure, 1973 (for short ‘the Code’).
Section 230 of the BNSS
Section 230 of the BNSS states that, 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
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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.
Time limit for supply of documents
Section 207 of the Code does not prescribe any time limit for supplying copies
of documents to the accused. However, Section 230 of the BNSS states that,
the Magistrate shall furnish copies of documents without delay and in no
case, beyond fourteen days from the date of production or appearance
of the accused. Complying with this requirement (in case of accused) would
not, normally, raise any practical difficulty.
Supply of copies of documents to the victim
Section 207 of the Code does not provide for supplying copies of documents to
the victim. However, Section 230 of the BNSS mandates that the Magistrate
shall furnish, free of cost, copies of documents not only to the accused but also
to the victim (if represented by an advocate).
Why the requirement that the victim should have engaged an advocate to
obtain copies of documents from the Court, free of cost? Is it not an additional
burden on the victim? Is it not an anomaly that, for the victim to get copies of
documents without spending any amount (free of cost) from the Court, he has
to spend money for engaging a lawyer?
It appears that, the requirement, that the victim should be represented by an
advocate to get free copies of documents from the Court, is incorporated in the
provision to enable the Magistrate to comply with the time limit prescribed
therein. The Magistrate has to furnish copies of documents to the victim
without delay and in no case, beyond fourteen days from the date of
production or appearance of the accused. The mandate in that regard
could be strictly complied with by the Magistrate only when the victim is
represented by an advocate at that stage of the case. However, if the provision
is interpreted in such a manner that the expression “without delay and in no
case, beyond fourteen days from the date of production or appearance
of the accused” does not apply to furnishing of free copies of document to the
victim but only to the accused, it would enable the victim to seek the copies of
documents from the Court concerned at any stage of the case. Then the
requirement that the victim should have engaged a lawyer for obtaining free
copies of documents could be dispensed with.
At this juncture, it is well to remember the principle laid down by the Supreme
Court that, the rights of a victim are substantive, enforceable, and are another
facet of human rights and that a victim has unbridled participatory rights in the
criminal proceedings from the stage of investigation till the culmination of the
proceedings in an appeal or revision. (Jagjeet Singh v. Ashish Mishra [2022 (3)
KHC 449 : AIR 2022 SC 1918 : 2022 (1) KLD 783 : 2022 KHC OnLine 6417])
Furnishing copies through electronic means
The second proviso to Section 230 of the BNSS states 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
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direct that he will only be allowed to inspect it either personally or through an

advocate in Court. The third proviso to Section 230 of the BNSS states that,
supply of documents in electronic form shall be considered as duly furnished.
When the documents are voluminous, the second proviso to Section 230 of the
BNSS enables the Magistrate to furnish copies of documents to the accused and
the victim through electronic means. When copies of such
documents are furnished through electronic means, in view of the third proviso
to Section 230 of the BNSS, it would not be legally permissible for the
accused or the victim to insist that he/she must get the copies of documents in
physical form.
Rule 19(4) of the Criminal Rules of Practice (Kerala)
Rule 19(4) of the Criminal Rules of Practice mandates that, 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.
It was in compliance with the direction of the Supreme Court that Rule 19(4)
was inserted in the Criminal Rules of Practice. (In Re: To Issue Certain
Guidelines Regarding Inadequacies and Defi ciencies in Criminal Trials [2021
(3) KHC 273 : (2021) 10 SCC 598 : 2021 (1) KLD 712 : 2021 KHC OnLine 6246])
If the accused contends before the Court that some papers forwarded to the
Court by the investigating agency have not been exhibited
by the prosecution as the same favours the accused, the Court must
concede a right to the accused to have an access to the said documents, if so
claimed. (V. K. Sasikala v. State [2012 KHC 4538 : AIR 2013 SC 613 : 2012 (4)
KHC SN 17 : 2012 (2) KLD 805])
As per Rule 19(4) of the Criminal Rules of Practice, every accused shall be
supplied with a list which shall also specify those statements, documents and
material objects that are not relied upon by the investigating officer. When the
prosecution gives a list stating that it intends to rely on the statements and
documents which form part of the final report, documents and material objects
that are not relied upon by the investigating officer, are also to be mentioned in
that list. The High Court of Kerala has directed that, all Criminal Courts in the
District Judiciary shall ensure compliance of Rule 19(4) of the Criminal Rules of
Practice and that a specific posting of the case shall be made for the said
compliance and that the Court shall start trial only after ensuring the
compliance with the mandate of Rule 19(4). (Akhil Sabu v. State of Kerala [2024
(5) KHC 49 : 2024 KHC OnLine 582 : 2024 KER 49597])
The prosecution, in the interests of fairness, should as a matter of rule, in all
criminal trials, furnish to the accused the list of statements, documents,
material objects and exhibits which are not relied upon by the investigating
officer. The Supreme Court has directed that the presiding officers of Courts in
criminal trials shall ensure compliance with such rules. (Manoj v. State of M.P.
[2022 KHC 6597 : (2023) 2 SCC 353 : 2022 KHC OnLine 6597])
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The requirement is that of providing a list of all documents, materials etc.

seized during the course of investigation or in the possession of the
prosecution, regardless of whether the prosecution plans to rely on it. Merely
because such materials are not on the record of the Court, the accused is not
disentitled from accessing the material that may have exculpatory value. Based
on the list of statements, documents etc. received before the commencement
of the trial, the accused can seek appropriate orders from the Court under
Section 91 of the Code (Section 94 of the BNSS). The Magistrate, on application
of judicial mind, may decide whether such documents ought to be called for.
In case documents are sought, the Court should exercise its
discretion, having regard to the rule of relevance in the context of
the accused’s right of defence. If the document or material is relevant and
does not merely have remote bearing to the defence, its production may be
directed. (Ponnusamy v. State of Tamil Nadu [2022 KHC 7177: 2023 (1) KLD
128 : 2022 SCC OnLine SC 1543 : 2022 KHC OnLine 7177])
In the case of Manish Sisodia (Manish Sisodia v. Directorate of Enforcement
[2024 KHC 6426 : 2024 KHC OnLine 6426 : 2024 SCC OnLine SC 1920 : 2024
(5) KHC SN 14]), the Supreme Court has, very recently held that, in order to
avail the right to fair trial, the accused cannot be denied the right to have
inspection of the documents including the “un-relied upon documents”.
The Supreme Court has held in a case that, a document, which is produced by
the prosecution but not exhibited, can be relied upon by the defence to falsify
the prosecution version. (Ramaiah v. State of Karnataka [2014 KHC 4509 : AIR
2014 SC 3388])
Entitlement of the accused to get copies of electronic documents or
records
An electronic record is not confined to “data” alone, but it also means the
record or data generated, received or sent in electronic form. All documents
including “electronic record” produced for the inspection of the Court along
with the police report and which prosecution proposes to use against the
accused must be furnished to the accused as per the mandate of Section 230 of
the Sanhita (Section 207 of the Code). The concomitant is that the contents of a
memory card or pen-drive must be furnished to the accused, which can be done
in the form of cloned copy of the same. (P. Gopalakrishnan v. State of Kerala
[2019 (5) KHC 794 : AIR 2020 SC 1])
Every document relied upon by the prosecution has to be supplied to the
defence/accused at the time of supply of the charge-sheet to enable the
accused to demonstrate that no case was made out against him and also to
enable him to prepare his cross-examination and defence strategy. The accused
is entitled to get copy of the hard disc upon which the prosecution relies, unless
it contains obscene matters. When the prosecution entertains an
apprehension that the accused may misuse the hard disc, a cloned copy of it
may be furnished. (Tarun Tyagi v. Central Bureau of Investigation [2017 KHC
6139 : AIR 2017 SC 1136 : 2017 (1) KHC SN 43 : 2017 (1) KLD 361])
The contents of a memory card/pen drive, being electronic record, could be
regarded as a document. If the prosecution is relying on the same as a
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document, ordinarily, the accused must be given a cloned copy thereof to

enable him/her to present an effective defence during the trial. However, in
cases involving issues such as of privacy of the complainant/witness or his/her
identity, the Court may be justified in providing only inspection thereof to the
accused and his/her lawyer or expert for presenting effective defence during
the trial. (P. Gopalakrishnan v. State of Kerala [2019 (5) KHC 794 : AIR 2020 SC
1])
The High Court of Kerala has held that, copy of the hard disc containing the
pornographic contents cannot be issued to the accused. The Court may permit
the accused as well as his counsel to view the
folders containing the pornographic contents in the hard disc, which forms part
of the forensic report, in the presence of the Public Prosecutor and
the Judge or any authorised officer deputed by the Judge, for a reasonable time.
(XXXXX v. State of Kerala [2023 KHC 9710 : 2023 KER 3510 : 2023 KHC OnLine
9710])
However, if a compact disc does not contain any obscene material or anything
affecting the privacy of the victim, copy of the same shall be given to the
accused, since he is legally entitled for the same. When the contents of the
compact disc are not expressly stated to be containing any obscene matter or
as containing any matter that intrudes into privacy, it is necessary for a proper
defence to be raised that a copy of it be given to the accused. If the compact
disc contains any obscene material or anything which would affect the privacy
of the de facto complainant, recording the said fact, the Trial Court can allow
the accused and his counsel to watch the contents of it, by providing a date
convenient to them. (Jackson v. State of Kerala [2024 KHC 615 : 2024 KHC
OnLine 615 : 2024 KER 51787], Vishnu v. State of Kerala [2023 KHC 9711 :
2023 KER 13508 : 2023 KHC OnLine 9711])
Entitlement of the accused to get copies of certain other documents
The High Court of Kerala has, very recently, held that the statements recorded
from the approver, prior to granting pardon to him and becoming an approver,
shall be placed before the Court along with the final report. It has been held
that, once an accused has turned approver, he becomes a prosecution witness
and copies of statements obtained from him have to be given to the other
accused. (Anilkumar @ Jacky [2024 KHC 739 : 2024 KHC OnLine 739 : 2024 KER
58832])
When the documents are voluminous and when the accused has applied for
certified copies of those documents, the Court cannot reject the application on
the ground that the documents are voluminous records and serving copy of the
same would be a difficult or hazardous task. (Radhakrishnan v. State of Kerala
[2022 KHC 951 : 2022 KHC OnLine 951])
Conclusion
It is undeniable that, in many cases, the investigating officer ignores
documents and materials collected during the investigation but which are in
favour of the accused and he does not forward them to the Magistrate as
required under the law. The rule which requires furnishing the accused a list of
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such documents and materials ensures the right of the accused to fair
investigation and also fair trial.