Firstly, under that Section 173 CrPC, 1973, the police officer investigating into a cognizable offence is under a statutory obligation to submit along with his report under Section 173(5) documents purporting to furnish evidence collected in the course of the investigation and the statements of the witnesses. Police report unaccompanied by those documents as referred to under 175 (5) CrPc, is not a report in the eye of law, and cognizance is illegal liable to be quashed.
Secondly, the Court before proceeding into the case is not only under a duty but a solemn duty to inquire whether the accused has been furnished with copies of all relevant documents received under Section 173 CrPc, and this direction is same in Session trial under Section 209 CrPc. That Section 172 (2) CrPc is entirely different from the documents referred to in section 207, 209 and 238 of the Criminal Procedure Code. Imagine a trial without furnishing to the accused those documents as referred to under Sections 207, 209 and 238 CrPc, it will virtually jettisoned the Indian Evidence Act, and rendered the trial a sham and may vitiate the whole proceedings, as the defence counsel will by fighting the case like a blind man trying to catch a sparrow. Any documents or things that are likely to prejudice the accused case should be brought to the notice of the accused as early as possible, as it was never the intention of the law maker to hide those things from the accused and surprised him in the eleventh hour. Even under the Official Secrets Act, “It is nowhere stated that copies of documents should not be furnished to the accused.
Thirdly, the right of accused to receive documents as envisaged under sections 207, 209 and 238 of the criminal procedure code, goes far beyond those sections, touching Article 21 of the Constitution of India and landing in Universal Declarations of Human Rights and the International Covenants on Civil and Political Rights of the accused, and this has been demonstrated by various High Courts and the Supreme Court in various celebrated Judgments. Check your mail for SC and HCs Judgments on this very subject, which has been posted to you.
A very interesting issue on this subject is now pending before the Supreme Court filed by the National Investigating Agency against the order of Karnataka High Court, which upheld the order of Sessions judge directing the NIA to furnish all the evidence it had collected on the alleged espionage activity of a Lashkar-e-Toiba terror module, which was busted in 2012 in Bengaluru, to the 11 accused under Section 207 CrPc. According to NIA, the report contains highly sensitive and confidential data vulnerable for the safety and security of the Government of India, and privileged information could not be shared and given in the public domain. Whereas the learned Sessions Judge observed “It is nowhere stated in the Official Secrets Act, that copies of documents should not be furnished to the accused,” So stay tune to this Judgment of the Apex Court.