Can Trial Court Accept Evidence In Sealed Cover In A Criminal Trial?

However, a legal question that is of great significance but is often overlooked, is whether the learned lower courts/ trial courts have the power to accept evidence in sealed cover in criminal cases? Does the law authorise them to do so?

This article aims at providing a definitive answer to the question in negative.

Does The Law Provide For Trial Courts To Accept Evidence In Sealed Cover In Criminal Case?

Principally, the usage of sealed covers, should at most, be confined to defence or highly confidential affairs of State. Thus, it ought to be used as an exception and not as a general rule. However, a trend that has emerged is that the State now regularly exercises this privilege in an increasing number of criminal matters as well. This is despite the existence of precautionary measures such as in-camera proceedings and provisions for prohibition of publication of any matter related to certain proceedings, in order to avoid any manipulation or bias due to disclosure of sensitive information. However, when such precautionary measures are exercised, such information is not kept confidential from the accused or the opposite party so as to afford him a fair trial and to uphold the principles of natural justice. This, however, is not the case when sealed covers are used, as then even the accused or opposite party is not made privy to the evidence submitted against them.

Presently, thereis no law explicitly allowing the learned trial courts to accept evidence in a sealed cover in a criminal case. The theory of sealed covers is not a legislative one; rather it’s a fruit of the procedural norms that have evolved over the years. In India, the practice for use of sealed cover protection is through submitting an affidavit to the court without mandating any requisite conditions to be fulfilled by the party/parties. It is purely an ad hoc decision. While the Hon’ble Supreme Court by virtue of Order XIII Rule 7 of the Supreme Court Rules, 2013, is explicitly empowered to accept documents and/or evidence in a sealed cover and to keep them confidential; no such similar provision exists with regard to the Trial Court’s power to do the same.

Most of the limited scholarship that deals with the issue of trial court’s power to accept evidence in sealed cover, place reliance on Section 123 of the Indian Evidence Act, 1872, as the relevant provision under which the trial court can accept evidence in sealed cover. However, the author contends that this reliance upon Section 123 of the Indian Evidence Act for admitting evidence in sealed cover is wrong and unfounded. In fact, the section deals with affairs of State and provides that certain unpublished official records relating to the affairs of the state shall not be permitted to be given as evidence without permission of the head of the department concerned. Therefore, under this section, depending upon the permission of the concerned officer, information can either be classified as not privileged and thus allowed to be placed on evidence, or information can be withheld as privileged and thus not permitted to be placed as evidence. In fact, at best, the court is allowed to view such a document over which privilege is claimed in order to determine whether such claim of privilege is well-founded^[1].

If it comes to conclusion that the document is privileged, the document cannot be taken as evidence to begin with, and in case the court concludes it to be non-privileged, the court can allow it to be taken as evidence^[2], but then, being deemed as non-privileged, there can be no possible need for secrecy or sealed covers. Therefore, in neither case, regardless of whether the document is deemed to be privileged or non-privileged, does the section in any way provide courts with the power to accept information as evidence in a sealed cover. When read with Section 162 of Indian Evidence Act, 1862, it becomes even clearer that the Act only deals with the production or admissibility of any evidence which may be objected to, or over which privilege may be claimed.

Another section that comes into play in the discussion of court’s power to accept evidence in sealed cover is Section 327 of Code of Criminal Procedure, 1973 (“CrPC”). Even taking into account Section 327 of CrPC, it merely provides for certain circumstances in which publication relating to the case shall not be permitted without the prior permission of the court, if the case deals with the inquiry into and trial of rape or an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or Section 376E. This section too nowhere allows for the production of evidence in sealed cover, but rather keeps the proceedings of the trial private between the relevant parties. Therefore, even under this section courts do not have the power to accept evidence in sealed cover.

It is pertinent to note that the makers of the Constitution in their wisdom specifically and explicitly empowered the Hon’ble Supreme Court to make its own rules under Article 145 of the Constitution, and similar powers have not been provided to the trial courts. It is by virtue of Article 145 of the Constitution that the Hon’ble Supreme Court has framed the Supreme Court Rules, 2013, which then allows the Hon’ble Court to accept evidence in a sealed cover by virtue of Order XIII Rule 7. Considering that there exists no specific rule explicitly and specifically empowering the trial courts to admit evidence in sealed cover, and the fact that legislators or rule-makers have neither in the statutes nor in any other rule or regulation provided for a similar provision for other courts, it can be rather reasonably inferred that as of date Trial Courts are not empowered by law to accept evidence in sealed cover in criminal trials. Had it been the intent of the lawmakers/ rule-makers to empower the Trial Courts to do so, a rule or provision similar to Order XIII Rule 7, empowering the Trial Courts to admit evidence in sealed cover would have been introduced. Therefore, for Trial Courts to accept and rely upon evidence in sealed cover in a criminal case will be a gross violation of procedural law.

The Harm Of Accepting Evidence In Sealed Cover By Trial Courts:

Such unlawful acceptance of evidence in a sealed cover will be a gross violation of the fundamental right to fair trial. The principles of natural justice and fair trial require that the accused be given a fair and proper opportunity to prove their innocence by being able to properly defend themself. To that extent, Section 313 of CrPC requires that if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires, as was recently held by the Hon’ble Supreme Court in Jai Prakash Tiwari v. State of Madhya Pradesh.

Consequently, a fair and wholistic defence by the accused is only possible when the accused is made aware of what evidence the prosecution relies upon against them in the trial, that they may be able to defend themself against them by offering an explanation, submitting counter evidence or calling into question the veracity or admissibility of such evidence. When evidence is submitted in a sealed cover, it effectively denies this opportunity to the accused, violating their fundamental right of a fair trial, causing grave and material prejudice in the process and occasioning a failure of justice. It also defeats the well accepted judicial principle of ‘Justice must not only be done, it must be seen to be done.’

At the level of the Supreme Court or High Court, where important questions of law or other sensitive matters of importance such as policy, national security, defence, etc. are up for consideration under their ordinary and extraordinary jurisdiction, the acceptance of evidence or material in sealed cover may still be deemed as warranted in certain set of circumstances. However, even here we are seeing a change in the approach of the Supreme Court to this issue as it has now openly criticised the practice in a number of cases, calling the practice opposed to principles of natural justice and one which makes the adjudication process vague and opaque.

But when it comes especially to criminal trials, where it is a direct consideration of the accused person’s criminal liability and it is the life and liberty of the accused that is at stake, nothing can possibly permit a situation where evidence against the accused may be permitted to be taken in sealed cover, as that would be in brazen violation of the accused person’s right to fair trial and fair disclosure, as protected by Article 21 of the Constitution. Right to life and liberty under Article 21 can only be curtailed by due process of law, and, as has been shown above, trial courts do not have the power under law to accept evidence in sealed cover in a criminal trial. Thus, accepting evidence in sealed cover in a criminal trial cannot be considered as due process of law. Therefore, any possible curtailment of the accused person’s liberty based on acceptance of evidence in a sealed cover, which is then made a basis for conviction, cannot be permitted as per Article 21 and Section 313 of CrPC.

Considering all that has been discussed above, it can be rather reasonably concluded that in a criminal trial, trial courts, which are bound by the basic criminal laws of Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act, do not have the power to accept evidence in sealed covers.

Views are personal.