RABARI KHIMA GANDA v. STATE — 1978 DIGILAW 147 (GUJ)

D. P. DESAI, J. ( 1 ) THAT brings us to the second contention. The complaint mark B contains the version attributed to the appellant. According to this version the deceased and the appellant were not on speaking terms on account of a false allegation about the encroachment over the land of the deceased by the accused. On the day of the incident the deceased came to the grazing ground near the appellant and challenged the appellant and the child accused Vagha Lakhman. This challenge was immediately followed by throwing of a stone at the appellant which struck his left knee. The appellant thereupon sat down and in the meanwhile the deceased came near him and aimed a blow at the appellant with his stick. The appellant warded off this blow by outstretching his left hand with the result that the stick struck on the left knee. Thereafter the appellant struck the deceased with his axe. This complaint if admitted in evidence would give out appellants version calling for consideration of the question of self-defence; and on account of the objection taken on behalf of the prosecution as to the admissibility of this complaint in view of the bar created by sec. 162 of the Code the question about admissibility has to be decided in this case. We must first look at the relevant evidence as to the circumstances in which this complaint came to be recorded. Evidently the appellant was not arrested in the course of investigation by P. S. I. Raijada who happened to hand over investigation to S. D. P. O. Mahapatra at 1-00 p. m. when the latter arrived at the scene. Mahapatra then proceeded further with the investigation recorded a couple of statements and then arrested the appellant. The weapon with the appellant accused was attached under a Panchnama Exh. 19 which went on from 2-15 p. m. to 2-45 p. m. Then as per the evidence of the S. D. P. O the appellant complained to him about beating by the deceased and therefore he directed the P. S. I. to record appellants complaint. In the course of cross-examination the witness stated that after his taking over the investigation he had called the appellant and had questioned him and thereafter he was arrested. In the course of cross-examination the witness stated that after his taking over the investigation he had called the appellant and had questioned him and thereafter he was arrested. P. S. I. Raijada P. W. 10 stated in his evidence that after having handed over the investigation to Mahapatra he recorded the complaint of the appellant at 5-00 p. m at the instance of Mahapatra. The complaint contents of which have been narrated above would show that the only person against whom it was given was the deceased. There was no question of taking any action upon this complaint because the offender mentioned in that complaint was dead. No investigation therefore could proceed upon that complaint. However it was recorded as a complaint; and it is in this context that we have to decide upon the controversy which has been raised before us. Secs. 154 161 and 162 of the Code are relevant in this connection. The relevant portions thereof may now be reproduced:"154 Information in cognizable causes :- (1) Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction and be read over to the informant: and every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it and the substance thereof shall be entered in a book to by kept by such officer in such form as the State Government may prescribe in this behalf. . . . . . . . . . "161 Examination of witnesses by police :- (1) Any police officer making an investigation under this Chapter or any police officer not below such rank as she State Government may by general or special order prescribe in this behalf acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such ease put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (2) Such person shall be bound to answer truly all questions relating to such ease put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so he shall make a separate and true record of the statement of each such person whose statement he records. 162 Statements to police not to be signed; use of statements in evidence :- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced to writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused and with the permission of the Court by the prosecution to contradict such witness in the manner provided by sec. 145 of the Indian Evidence Act 1872 (1 of 1872); and when any part of such statement is so used any part thereof may also be used in the re-examination of such witness but for the purpose only of explaining any matter referred to in his cross-examination. ( 2 ) ON behalf of the appellant the contention is that this being a counter-complaint given by the appellant is not covered by the provisions of sec. 162 of the Code; and is therefore admissible. This submission appears to us to state the proposition rather widely. The counter complaint after all is a statement; and it is not naming of a particular statement as a counter-complaint which takes it out of sec. 162 and makes it admissible as a counter-complaints notwithstanding the fact that it is pertaining to the same incident and gives out to the police the version of the defence. The counter complaint after all is a statement; and it is not naming of a particular statement as a counter-complaint which takes it out of sec. 162 and makes it admissible as a counter-complaints notwithstanding the fact that it is pertaining to the same incident and gives out to the police the version of the defence. In fact a counter-complaint in a given case may well fall under sec. 162 of the Code. This would be implicit from the following observations of the Supreme Court in Faddi v. State of Madhya Pradesh A. I. R. 1964 S. C. 1850 at page 1853 in paragraph 15:"the report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Sec. 25 Of the Evidence Act and sec. 162 of the Code of Criminal Procedure do not bar its admissibility". THE counter-complaints in all cases may not be given out of the volition of the accused. It may be that the version is the result of intensive interrogation and questioning the police officer in charge of the investigation. It may happen that during intensive interrogation an accused person may break down and with a view to save his own skin may give out a gambled version containing some incriminating statement of fact and justifying the act done by him. A clever investigating officer may as well get it recorded as a counter-complaint. Such a counter-complaint cannot be said to have arisen out of the volition of the accused; and remains all the same a statement by the accused made to the investigating officer during the course of investigation as regards the versions that he has been obliged to bring out though he was not willing to do so initially. On the other hand if the accused gives out his version regarding the incident of his own volition without being questioned in that behalf by the investigating officer such a counter-complaint may become admissible in evidence. This appears quite clear in view of the distinction between the first information report and the statement recorded under sec. 161 of the Code. A first information report under sec. 154 is different from a statement made to a police officer in the course of investigation. This appears quite clear in view of the distinction between the first information report and the statement recorded under sec. 161 of the Code. A first information report under sec. 154 is different from a statement made to a police officer in the course of investigation. The former is a voluntary disclosure of facts constituting a cognizable offence by a party while the latter is communication of facts to an investigating officer on examination under sec. 161 of the Code whether the accused is willing to give it out or not. The accused when examined by an investigating officer is bound to answer all questions relating to the case put to him by the investigating officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture (vide sec. 161 (2) of the Code ). Such a version which the accused is obliged to give not out of his own volition but because of the mandate contained in sec. 161 (2) would be a statement of course containing the version of the accused made however in the course of investigation. Such a statement cannot be admitted in evidence at the trial of the accused. One thing therefore appears fairly clear. The counter-complaint by an accused person given voluntarily and not in the course of examination of the accused under sec. 161 (1) if given with a view to action being taken on it by police would amount to a first information report under sec. 154 of a different cognizable offence notwithstanding the fact that investigation against the accused has already started on a complaint made by the other side. If on the other hand he in answer to questions put to him gives out his version containing a complaint against the other side it would be a statement recorded under sec. 161 (1 ). In the former case the counter-complaint would not amount to a statement in the course of an investigation because the accused has not been examined by the investigating officer under sec. 161 (1); while in the latter case it would be a statement made in the course of examination under sec. 161 (1) and as such one made in the course of an investigation. ( 3 ) READING secs. 161 (1); while in the latter case it would be a statement made in the course of examination under sec. 161 (1) and as such one made in the course of an investigation. ( 3 ) READING secs. 161 (1) and 162 (1) of the Code together it is clear that the statement made in the course of investigation contemplated by sec. 162 (1) is a statement made by the accused when he is examined under sec. 161 (1 ). The words in the course of an investigation do not refer merely to the period of time between the beginning and the end of investigation. Therefore the fact that investigation has stated on the information lodged by a person is not decisive of the question whether a counter-complaint lodged by the accused is a statement made in the course of investigation. ( 4 ) THE words in the course of occurring in section 162 (1) of the Code were interpreted by a Division Bench of Allahabad High Court in Emperor v. Aftab Mohd. Khan A. I. R. 1940 Allahabad 291. The Court pointed out that the aforesaid words in the course of occurring in sec. 162 import that the statement in question must be made as a step in a pending investigation to be used in that investigation. They do not merely refer to the period of time which elapses between the beginning and the end of the investigation. It was held that a report which is made quite independently of and in no relation to any pending investigation and not designed to promote a pending investigation in any way but to start one having no reference at all to the investigation which has in fact begun cannot be said to have been made in the course of the investigation of the case. In a way the view of the Allahabad High Court that the words in the course of do not refer merely to the period of time which elapsed between the beginning and the end of the investigation is fortified by the decision of the Supreme Court in Baleshwar Rai and Others v. The State of Bihar (1963) 2 Supreme Court Reports 433 There the Supreme Court was dealing with an anonymous letter received by the Senior Sub-inspector a portion of which was admitted in evidence at the trial. The identity of its handwritings with those of one of the accused was established. The letter contained an admission as to the motive; and the question arose whether it was hit by sec. 162 of the Code. The Supreme Court observed at page 439 as under:"sec. 162 does not say that every statement made during the period of investigation is barred from being proved in evidence. For a statement to come within the purview of sec. 162 it must not merely be made during the period of investigation but also in the course of investigation. The two things that is the period of investigation and course of investigation are not synonymous. Sec. 162 is aimed at statements recorded by a police officer while investigating into an offence. This is clear from the opening words of sec. 162. They speak only of statements made to a police officer during the course of investigation. This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigating officer and not one which is de hors the enquiry". IN our opinion a counter-complaint filed voluntarily by an accused person without his being examined in the course of investigation would be de hors the enquiry inasmuch as the accused wants the law to be set in motion with regard to the offence committed against him by the complainant. ( 5 ) IN Emperor v. Bhagi A. I. R. 1941 Oudh 359 a Division Bench of that High Court in dealing with a report which was given subsequent to the starting of investigation of another report held the report not to fall under sec. 162; and the High Court based its conclusion inter alia on the ground that there was nothing to indicate that the maker of the report was examined in the course of the investigation but on the contrary the report itself showed that it was a report voluntarily made with a definite object and that the maker of the report had gone to the police station in order to make the report. Thus in the absence of evidence to show that the report was made pursuant to the examination of the person making it under sec. 161 it was held admissible in evidence. Thus in the absence of evidence to show that the report was made pursuant to the examination of the person making it under sec. 161 it was held admissible in evidence. This decision was followed in Qamrul Hasan v. Emperor A. I. R. 1942 Oudh 60 It was held that where after the first information report has been recorded the accused voluntarily makes a report to the police by way of defence or reply and no question is put to him by the police the report of the accused is not a statement made in the course of an investigation and is therefore not inadmissible under sec. 162 of the Code. In this decision an earlier decision of the Calcutta High Court reported as Osman Gani v. Emperor A. I. R. 1930 Calcutta 130 was followed. In that case the first information report as regards occurrence was filed by the accused. In that first information the accused did not say about anything having been done by his party but complained that the complainants party had assaulted them. On the next day the first information of the complainant was recorded under sec. 154; and on the prosecution commencing on that complaint some of the accused came to be convicted. Before the High Court the contention raised was that the information given by the accused earlier was the first information and that would prevent the information filed by the complainant on the next day from being received in evidence. Rankin C. J negatived this contention observing as under:" It is a question of fact whether a statement made to a police officer in the course of an investigation in such cases comes under sec 162 or is made by way of complaint to commence an investigation under sec. 154. The two matters are dealt with differently in the Code. One says that even if the statement is reduced to writing is not to be signed whereas the other statement is to be reduced to writing and is to be signed". ( 6 ) PATNA High Court followed the decision of the Division Bench of Allahabad High Court in Aftab Mohd Khans case (supra) in Suba Chaudhury v. The King A. I. R. 1950 Patna 44 The words in the course of occurring in sec. ( 6 ) PATNA High Court followed the decision of the Division Bench of Allahabad High Court in Aftab Mohd Khans case (supra) in Suba Chaudhury v. The King A. I. R. 1950 Patna 44 The words in the course of occurring in sec. 162 of the Code were interpreted to import that the statement must be made as a step in a pending investigation to be used in that investigation and they do not refer merely to that period of time which elapses between the beginning and the end of the investigation. ( 7 ) THUS whether a document produced as a counter-complaint in a given case after investigation has started upon another complaint is inadmissible in evidence under sec. 162 (1) of the Code depends upon the facts and circumstances of each case. But one working test which can be evolved is to find out whether the party seeking to use the statement ( as admissible in evidence) has shown that it was given voluntarily as a complaint with a view to action being taken upon it and not by way of a statement in the course of examination of the accused by the investigating officer under sec. 161 (1) of the Code. ( 8 ) WE have evolved the aforesaid working test on examination of the provisions of secs 154 161 and 192 (1) of the Code as aforesaid principally with a view to avoid a situation which may result in hardship and ultimate injustice to the accused. We propose to illustrate this. ( 9 ) IN a given case there is a sudden fight between two persons in which both sides receive serious injuries. One of the injured persons manages to reach the police station first and gives the first information report on which the investigation starts. The other person having been named in that first information report would be called by police. That person is equally seriously injured; and his case is that the other side was the aggressor who caused serious injuries to him with the result that he had to act in self-defence and cause injuries to the other side. Such an accused person with a view to see that law is set in motion against the other side tells the investigating officer (before he is examined under sec. 16 (1) that he had also a complaint to lodge against the other side. Such an accused person with a view to see that law is set in motion against the other side tells the investigating officer (before he is examined under sec. 16 (1) that he had also a complaint to lodge against the other side. This he does voluntarily and with a view to action being taken upon it by the police against the other side. His complaint is recorded by the police. It has been recorded after investigation on the complaint of the other side has started. It contains a statement made to a police officer investigating the offence. All the same it is not a statement made pursuant to the examination of the accused by the police officer under sec. 161 (1) of the Code or given out of compulsion but is a statement made voluntarily with a view that action be taken against the other side. On the mere fact that investigation has started with respect to the same incident if we exclude this counter-complaint from evidence under sec. 162 of the Code the accused would be deprived of an opportunity to show to the Court that the version that he gives out before the Court in his defence was the earliest version given out by him and was not a modulated version found out as a result of cross examination of the prosecution witnesses. Going a step further suppose the accused in such a case enters the box and wants to corroborate his testimony before the Court by the complaint filed by him the exclusion of that complaint on the ground that it was a statement in the course of investigation even though the complaint was filed as a distinct complaint voluntarily with a view to see that the police take action upon it would result in a serious prejudice to the accused. It is settled that the provisions of the Code have been enacted for the benefit of the accused. It is well-settled that both sec. 162 and its proviso intended to serve primarily the same purpose i. e. the interest of the accused. The Supreme Court in terms said this in Tabsildar Singh v. State of Uttar Pradesh A. I. R. 1959 S. C. 1012. It is obvious therefore that the provisions of sec. 162 should not be construed in such a manner as to result in injustice to the defence. The Supreme Court in terms said this in Tabsildar Singh v. State of Uttar Pradesh A. I. R. 1959 S. C. 1012. It is obvious therefore that the provisions of sec. 162 should not be construed in such a manner as to result in injustice to the defence. 19 As against the aforesaid illustration we can also conceive of a case in which the accused does not want to file a counter-complaint. Such an accused would be examined under sec. 161 (1) of the Code by the investigating officer; and in the course of his statement he gives out a version showing that he had a case for filing of a complaint. An intelligent investigating officer in such a case would get a complaint of the accused recorded instead of recording his statement and when the occasion arises he would use that complaint against the accused at the trial. That complaint which may not amount to confession would contain some admissions of fact which may ultimately be used at the trial against the accused. It is at this stage that the question whether the so called complaint was given voluntarily by the accused will have to be examined as a part of the working test mentioned above. If the court on a consideration of the evidence before it comes to the conclusion that the accused was not willing to file any complaint then notwithstanding the fact that the statement has been recorded as a distinct complaint the Court can well hold that it was a statement given in the course of investigation by the accused. ( 10 ) THE learned Public Prosecutor was not satisfied with the aforesaid proposition and he wanted the proposition to be laid down in wider term. In his submission if the complaint pertains to the same incident or is closely connected with it and if it comes to be recorded after the investigation has started it is inadmissible in evidence irrespective of any other consideration. For this purpose he relied upon Somabhai v. State of Gujarat A. I. R. 1975 Supreme Court 1453 and the following observations of the Court in paragraph 19 with regard to the so called complaint Exh. 102 filed by the accused before the police during the course of investigation:"having read the contents of Exh. For this purpose he relied upon Somabhai v. State of Gujarat A. I. R. 1975 Supreme Court 1453 and the following observations of the Court in paragraph 19 with regard to the so called complaint Exh. 102 filed by the accused before the police during the course of investigation:"having read the contents of Exh. 102 we are satisfied that they are closely connected with the facts of the present case which form the subject-matter of the F. I. R in this case. It is admitted on all hands that the accused had given this statement to the price after the investigation into the F. I. R. lodged by Ratilal Deva had already started and this was. therefore clearly a statement made by the accused in the course of investigation and therefore hit by sec. 162 of the Code. (Emphasis supplied)". IT is clear from the emphasized portion that it was admitted by all concerned before the Supreme Court that this complaint was a statement made to the police officer after the investigation had started. Evidently this would be the case where the police officer examined the accused under sec. 161 (1) of the Code; and the accused made a statement. The Supreme Court treated Exh. 102 as a statement made in the course of investigation on the facts of that case. In fact the Supreme Court characterised that complaint as one which constituted his defence before police. It appears therefore that Exh. 102 was given pursuant to the questioning made by the police. The Division Bench of this High Court in that case (reported as State of Gujarat v. Somabhai 15 G. L. R. 147) laid down that in order that a complaint be hit by sec. 162 of the Code the statement in question must be one which is nothing but a step in the pending investigation. The Division Bench also observed that the words in the course of occurring in sec. 162 have reference to the progressive stages of investigation and not to the period of time taken in completing the investigation. The Supreme Court earlier also had taken a similar view of these words. In the case under reference the Supreme Court did not over rule this view of the Division Bench but held on the facts of the case that the complaint was a statement made in the course of investigation. The Supreme Court earlier also had taken a similar view of these words. In the case under reference the Supreme Court did not over rule this view of the Division Bench but held on the facts of the case that the complaint was a statement made in the course of investigation. This decision therefore does not assist the learned Public Prosecutor in supporting the broad proposition which he contends for. ( 11 ) THUS considering the question in the first instance on interpretation of the relevant provisions of the Code and in the context of judicial opinion expressed by different High Courts as well as the observations of the Supreme Court in Baleshar Rais case (supra) we have no doubt that even in a case where the investigation into an offence against the accused has started on a complaint which makes no reference about the complainant having committed the offence against the accused the accused voluntarily files a complaint under sec. 154 of the Code with a view that police may take action upon it against the complainants side the said complaint is not a statement made in the course of investigation because it is not done by way of a step in aid of pending investigation but by way of an action demanding investigation against the complainants side. It is also not a statement covered by sec. 161 of the Code inasmuch it is not made pursuant to an examination of the accused under sub-sec. (1) of sec. 161 of the Code but is made voluntarily and de hors the investigation with a view to police taking action against the complainants side on that complaint. Appeal dismissed. .