Archive

Monthly Archives: June 2014

 

Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating office

——————————————————————————————————————————————————————————————–

Gujarat High Court
Gujarat High Court
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965
Equivalent citations: AIR 1966 Guj 217, 1966 CriLJ 990, (1966) 0 GLR 829
Author: N Shelat
Bench: N Shelat, A Sarela
JUDGMENT
N.G. Shelat, J.
1. to 8. xx xx xx
9. With regard to the evidence of Gulabrai, it was urged by Mr. Mankad, the learned advocate appearing for
respondent No. 1, that his statement recorded by the investigating officer in the case was not supplied to the
accused as is required under Section 173 Sub-section (4) of the Criminal Procedure Code and that
consequently the probative value of his evidence would be materially affected. Sub-section (4) of Section 173
of the Criminal Procedure Code provides as under.-
After forwarding a report under this Section, the officer in charge of the police station shall, before the
commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of
the report for-worded under Sub-section (1) and of the first information report recorded under Section 184 and
of all other documents or relevant extract thereof, on which the prosecution proposes to rely, including the
statements and confessions, if any recorded under Section 164 and the statements recorded under Sub-section
(3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating officer. The Chapter XVIII of the Criminal
Procedure Code relates to the procedure to be followed by the Magistrate in inquiries preparatory to
commitment, in respect of proceedings instituted on a police report received by him under Section 173 of the
Criminal Procedure Code. Sub-section (3) of Section 207A of the Criminal Procedure Code then provides that

“At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before
him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and If he
finds that the accused has not been furnished with such documents or any of them, he shall cause the same to
be so furnished.”
A similar provision is contained in Section 251A of the Criminal Procedure Code, laying down procedure to
be adopted in the trial of warrant cases instituted on a police report, by the Magistrate. If appears from these
provisions that the obligation is cast on the Magistrate to satisfy himself that the documents referred to in
Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with
such documents or any of them he shall cause the same to be so furnished In light of these provisions the
grievance of the accused as urged by Mr. K. N. Mankad for the respondent No. 1, has to be examined. Now it
is not suggested, much less said that the committing Magistrate had not made inquiry from the accused and
not satisfied in that respect. It has to be taken that the procedure as required in law was followed by him and
he had satisfied himself that the accused had recited all such statements as contemplated under Section 173(4)
read with Section 207A, Sub-section (3) of the Criminal Procedure Code The charge-sheet submitted by the
police in the case described the name of the witness Gulabrai as one of the witnesses to be examined for
prosecution in the case. When that was so, and if the accused had in fact not received the police statement of
witness Gulabrai. it was necessary for the accused to move the committing Magistrate before committal of the
accused to the Court of Sessions, that they have not received such a statement, and if they failed to do so then,
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965

Advertisements

 

we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”

 

———————————————————————————————————————————————————————————————————-

 

HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR
Court No.55
Criminal Misc. Writ Petition No. 3567 of 2012.
Raju …… Appellant.
Versus
State of U.P. & others ….. Respondents.
Hon’ble Dharnidhar Jha, J.
Hon’ble Ramesh Sinha, J.

We had by our order dated 3.4.2012 directed the petition to be listed before us for deciding the issue as to whether an accused or a victim of an offence was entitled to a copy of the statement of the victim recorded under Section 164, Cr.P.C. by a judicial Magistrate, if an application is duly made and the court fee which is required for obtaining such a copy of such statement is paid by the desirous person.
It so happened that while hearing this petition, we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”
We further went on to pass the following order:-
“We require the District and Sessions Judge, Bareilly also to furnish a report as to under what circumstances the copy, which was applied for of the above noted document, was refused to be supplied to the present petitioner. In the meantime, we wish that the petitioner had filed the rejected copy of the application for copy on the present record.”
In the light of the above directions issued to the District and Session Judge, Bareilly on 29.3.2012, the Registrar General of the Court had received a communication from the District and Session Judge, Bareilly vide his memo No. 541/XV dated 3rd April, 2012 in which the learned Judge was referring to Rule 263 of the General Rules (Civil) of the Court to inform us that there was prohibition on supplying the statement of a witness recorded under Section 161, Cr.P.C. or any other part of evidence collected by the Investigating Officer prior to reaching the stage of filing the charge-sheet and as such the accused can never ask for a copy or any part of the case dairy at any stage of the investigation. What the learned Judge further attempted to impress upon us was that the above Rule was created on the basis of a judicial pronouncement in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh and others Vs. State of U.P.
During the course of present hearing, learned counsel appearing on behalf of the petitioner produced before us yet another judgment rendered by this Court long back in 1932 which is reported in A.I.R. 1932 Allahabad 327, Bashiruddin and another Versus Emperor in which the Court was deciding that the statement under Section 164, Cr.P.C. was a public record and that was bound to be supplied to the accused on admissible cost if he had applied for it. In fact for issuing the above direction, the learned Judge supplied the following reasons:-
“Statements recorded under S. 164, Criminal P.C. are public documents, being the acts of a Judicial Officer done under the provisions of the Criminal Procedure Code, and the public servant in whose custody those documents were, was bound to issue copies thereof. An accused is undoubtedly entitled to inspect statements of prosecution witnesses recorded under S. 164, Criminal P.C. Such statements can be used by the prosecution for the purpose of corroborating the witnesses. They can likewise be used by the defence for the purpose of contradicting such witnesses. S. 164, Criminal P.C. clearly provides that statements recorded under that section shall be forwarded to the Magistrate by whom the case is to be enquired into or tried. It is difficult to appreciate the remark of the learned City Magistrate that the statements in question were not on the record. If they were not till then before him he should have forthwith sent for them, and if they had not been previously forwarded to him they should have been before him without any further delay.
Apart from this aspect of the case, the Magistrate trying the case has to protect the interests of the prosecution and the defence alike; even if the accused were not entitled as of right to inspect such statements, the Magistrate should have had no objection to exercising his discretion in favour of the accused in a matter of that kind. A Magistrate is expected to afford all facilities to the accused not only when he is compelled by law to do so, but also when he has a discretion in the matter and the ends of justice require that the accused should be apprised of what certain prosecution witnesses had previously stated in proceedings under S. 164, Criminal P.C. I am clearly of opinion that the learned Magistrate should have directed copies of the statements under S. 164 to be given to the accused on payment by them of the usual fees and in any case, should have allowed the advocate for the defence to inspect those statements.”
Following the said reason a Division Bench of this Court has rendered yet another judgment in the case of Shankar Lal and others Versus The State reported in A.I.R. 1954 Allahabad 779 (Vol.41, C.N. 308). In Shankar Lal (Supra) the question which is presently being considered by us was not directly in issue. The issue was of non supply of copies of statements of witnesses, whom the prosecution relied for proof of the charges. But for rendering the decision the Division Bench referred to Bashiruddin (Supra).
We had the privilege of perusing the judgment of another Division Bench of the Court in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh & others Versus State of U.P. & others which is the foundation of Rule 263 of the General Rules (Civil) and we are of the opinion that the judgment in Mukesh (Supra) was on a different issue. The accused had sought the copy of the case diary as the judicial Magistrate had issued process under Section 82 Cr.P.C. on application of police. That petition was dismissed by the Magistrate. The accused filed the writ petition urging that the order rejecting his application for copy of case diary was violative of Articles 21 and 22(1) of the Constitution of India and, as such, prayer (ii) in that Writ Petition was as under :-
“Issue a writ, order or direction in the nature of mandamus directing the respondents to provide copy of the case diary and other proceedings which relate to the petitioners so that they may be able to defend their cases.”
In our opinion, the judgment of the Division Bench in the case of Mukesh (Supra) could not be applied to decide the present issue framed by us.
We are of the opinion that the the statement of an accused or victim or a witness which is to be recorded under Section 164 Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of witnesses recorded under Section 161 Cr.P.C. The reason is that there is a full fledged provision under Section 164 Cr.P.C. authorizing the recording of such a statement by a judicial Magistrate. The practise and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other judicial Magistrate being deputed for recording the statement under Section 164 Cr.P.C., the witness along with the judicial record is transmitted to the deputed judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order-sheet of the same record and transmits the record along with the recorded statement under Section 164 Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164 Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164 Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case dairy. Thus, the recorded statement under Section 164 Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. It could never be put at par with a statement under Section 161 Cr.P.C. and as such it could never be said to be a part of case dairy.
On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164, Cr.P.C. had regularly been performed as is envisages by Section 114 of the Indian Evidence Act. In addition to that, we are of the opinion that the recorded statement being the record indicating the performance of the official and judicial functions or acts of a Judge under the prevailing provisions of the law of the land could be a document properly covered by Section 35 of the Indian Evidence Act and, as such, assumes the character of a public record which is covered by Section 72 of the Evidence Act.
On these terms, we are of the view that any application, if made, by any concerned person to obtain a copy of the statement under Section 164 Cr.P.C., the same could never be denied to him if he is ready to pay the costs admissible under Rules. We are further of the view that this issue was properly considered by the learned Single Judge of the Court in the case of Bashiruddin (Supra) and this was not considered by the Hon’ble Judges of the Division Bench in case of Mukesh (Supra) and as such that decision could not be creating any obstruction in providing a copy of the statement to any person entitled thereto. We as such, are of the opinion that Rule 263 of the General Rules (Civil) of the Court was not relevant and cannot be used for denying the application for copies.
We have perused another document which has been referred to by the District and Session Judge in his letter as Circular Letter No. 29 of 2005. That letter is also not relevant for the present purpose as the very heading of that letter indicates, and rightly, that no accused could have the copy of the case dairy.
For the forgoing reasons, what we find is that no person, who is entitled to a copy of the statement under Section 164 Cr.P.C., could be denied the required copy of the said document, if he is ready to pay the cost admissible under Rules of the Court. The issue framed by us is, accordingly, answered.
Considering the importance of our observations and directions, we are of the view that the copy of this judgment may be circulated among the District Judges and Officers-in-Charge of copying department of different judgeships and with that in our view, we direct the laying down of a copy of the present judgment before the Hon’ble the Chief Justice.
Dated 08.05.2012
Shiraz.

Hon’ble Dharnidhar Jha, J
Hon’ble Ramesh Sinha, J.
Disposed of.
For orders, see order of date
passed on separate sheets.
Dated :- 08.05.2012
Shiraz