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Kerala High Court · body

1955 DIGILAW 61 (KER)

Kunju v. State

1955-04-04

SANKARAN

body1955
Judgment :- 1. The 2nd accused in C.C. No. 739 of 1953 on the file of the First Class Magistrate's Court at Karunagappally has filed this petition seeking a revision of the order passed by the Magistrate convicting him under S. 457 and 380 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 500 for the offence under each of the above two counts, which conviction and sentence have been confirmed by the learned Sessions Judge at Quilon by his order in the Criminal Appeal No. 14 of 1954. There were two other accused in C.C. 739/53. Of these three accused, the 3rd accused was acquitted by the trial Magistrate, while accused 1 and 2 were convicted and sentenced. 2. The prosecution case is that 2515 lbs. of copper wire valued at Rs. 6287-8-0 were stolen by these three accused from the store room attached to the Electrical Overseer's Office at Karunagappally. The 1st accused was a lascar attached to this office at the time of the commission of the alleged offence. The 2nd accused was doing business as a hardware merchant and had his shop near the Electrical Overseer's Office. The 3rd accused was an accountant in the shop of the 2nd accused. The prosecution case is that these three accused jointly committed the theft of the copper wire in three instalments on three different dates viz., 5.4.1953, 18.4.1953 and 23.5.1953. It is stated that they got entry into the store room through the adjoining room the outer door of which was opened with a false key which they had got made by the blacksmith who has been examined as Pw. 8. Both the lower courts have come to the conclusion that the evidence adduced by the prosecution has established the case against accused 1 and 2. 3. Of the several grounds raised in this revision petition the most important one pressed on behalf of the 2nd accused petitioner is that the refusal of the trial Magistrate to grant copies of the police diary containing the notes of evidence taken by the police at the earliest stage of the investigation from Pws.1 to 3, 5, 6 and 7 cannot be justified on any ground whatever. There is no controversy about the fact that the 2nd accused had applied for copies of the notes of the evidence of these witnesses as recorded in the police diary and that the Magistrate refused to grant such copies. These facts have been adverted to by the learned Sessions Judge in his judgment, who has stated that the trial court went wrong in refusing to grant the copies applied for by the 2nd accused. At the same time the learned Sessions Judge has taken the view that such refusal has not caused any prejudice to the 2nd accused. In view of the express provision contained in S. 162 of the Code of Criminal Procedure that the Court shall on the request of the accused direct the grant of copies of the notes of evidence recorded by the police on questioning the prosecution witnesses in the course of the investigation of the case so that the accused may confront the witnesses with those statements at the close of the cross-examination at the trial, it is not enough for the court merely to assert that the refusal to grant such copies has not caused any prejudice to the accused. The Second Proviso to sub-s. (1) of this section specified the circumstances under which alone the refusal to grant such copies may be justified. That Proviso states that "if the court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused". The refusal to grant copies to the 2nd accused was not sought to be justified by this Proviso, nor is it seen that an order as contemplated by this Proviso was passed by the trial Magistrate. 4. In the circumstances of this case there appears to be no justification to refuse the grant of copies of the notes of evidence taken by the police from Pws.1 to 3, 5, 6 and 7. Ext. AA is the earliest report about the occurrence in this case. 4. In the circumstances of this case there appears to be no justification to refuse the grant of copies of the notes of evidence taken by the police from Pws.1 to 3, 5, 6 and 7. Ext. AA is the earliest report about the occurrence in this case. It shows that the 1st accused and another lascar attached to the Electrical Overseer's Office were the only persons suspected to be involved in the commission of the offence. There is no indication in Ext. AA that the 2nd accused had anything to do with the commission of that offence. According to the prosecution his complicity in the offence came to light only in the course of the investigation conducted by the police. In such a situation the 2nd accused has the undoubted right to know the nature of the disclosures made to the police by Pws.1 to 3, 5, 6 and 7 as to the complicity of this accused in the theft of the copper wire in question. He is entitled to make use of the copies of such earliest statements given by these witnesses, in cross-examining them on the version given by them at the trial of the case. Such a very valuable right has been denied to the accused in this case and it cannot be said that such denial has not caused any prejudice to him. In fact the refusal to grant copies applied for by the 2nd accused must be taken to have vitiated the trial and to have rendered the trial illegal. This position has been particularly emphasised in Kottaya v. Emperor (A.I.R. 1947 P.C. 67). The same position has been reiterated by the Supreme Court in Purushotham v. State of Kutch A.I.R. 1945 S.C. 700 where it is stated that "the right which the accused has got of obtaining copies of the statements made by witnesses during investigation is a very valuable right and that the wholesale refusal to grant the same will be a serious irregularity which would vitiate the entire trial". Such a feature present in this case by itself necessitates the exercise of the revisional jurisdiction of this Court and to order a retrial of the case as against the 2nd accused petitioner. 5. The charge laid against the 2nd accused is also seen to be defective. Such a feature present in this case by itself necessitates the exercise of the revisional jurisdiction of this Court and to order a retrial of the case as against the 2nd accused petitioner. 5. The charge laid against the 2nd accused is also seen to be defective. Separate charges ought to have been framed against each of the three accused specifying the points which each of them had to meet at the trial. Such a separate charge will be framed against the 2nd accused at the re-trial already indicated. Since the case is to go back for re-trial, it is unnecessary to deal with the other points raised in this revision petition. 6. In the result, this revision petition is allowed and the conviction entered against the accused and the sentence awarded to him by the lower courts are set aside and a re-trial of the case is ordered as against this particular accused. Allowed.