Karuppathal v. Palanisami Gounder — 1989 DIGILAW 255 (MAD)

Judgment : JUDGMENT: Cr.M.P.No.6119 of 1986 is a petition by Karuppathal, examined as P.W.4 in S.C.No.137 of 1985 on the file of the Court of Sessions, Coimbatore. This application has been filed for transfer of S.C.No.137 of 1986 from the file of the Principal Sessions Judge, Coimbatore to any other Court of competent jurisdiction, in the interest of justice. Certain allegations have been made against the presiding Judge, in the affidavit filed along with the petition. 2. Cr.M.P.No.6123 of 1986 is an application filed by the State represented by the Inspector of Police, District Crime Branch, Coimbatore Rural under Sec.482, Cr.P.C. for directions to the Court of Sessions, Coimbatore to delete from evidence Exs.D1 to D3 since the procedure adopted by the trial court is contrary to the directions, of this Court, made in Cr.M.P.No.10180 of 1985. 3. A few facts will be necessary to dispose of these petitions: The respondents 1 to 11 are the accused in S.C.No.137 of 1985 on the file of the Principal Sessions Judge, Coimbatore. Charges have been framed against them for offences under Sec.302 read with Sec.34 and Sec.201, I.P.C. The husband of karuppathal, named Valanivalayan alias Palani is the deceased in the case. P.W.4, Karuppathal preferred a complaint on 26.6.1984 to the Station House Officer, Karumathampatti Police Station stating that her husband was not traceable from the night of 9.6.1984. This complaint was registered as Cr.No.93 of 1984. Earlier, on 10.6.1984, Angappan, the second respondent herein, had preferred a complaint stating that on the night of 9/10.6.1984 at Ponnanthottam two unidentified persons attempted to commit theft of coconuts and when the third respondent and himself attempted to catch hold for the thieves, the latter inflicted knife injuries on them. This complaint was registered as Cr.No.78 of 1984 under Sec.379 read with Secs.511 and 324, I.P.C. Subsequently the Superintendent of Police, Coimbatore Rural, directed transfer of both these crimes for investigation by the District Crime Branch, Coimbatore Rural District. The Transfers were made on 6.8.1984 and the crimes were renumbered as D.C.B. Crimes 5 and 6 of 1984. 4. On completion of investigation a final report was filed against the respondents as stated earlier in C.R.No.6 of 1984, which has culminated as S.C.No. 137 of 1985. The other crime was referred as mistake of fact. 5. The Transfers were made on 6.8.1984 and the crimes were renumbered as D.C.B. Crimes 5 and 6 of 1984. 4. On completion of investigation a final report was filed against the respondents as stated earlier in C.R.No.6 of 1984, which has culminated as S.C.No. 137 of 1985. The other crime was referred as mistake of fact. 5. At the commencement of trial in S.C.No. 137 of 1985, an eye-witness, Kitten, was examined as P.W.I. During his evidence he deposed that a preliminary investigation was done by the Deputy Superintendent of Police, District Crime Branch prior to the one conducted by the Inspector of Police, District Crime Branch, Coimbatore, Rural who is the authority who has filed the final report under Sec.173, Cr.P.C. 5(a). At this stage of the proceedings the respondents filed two applications in the court below under Sec.91, Cr.P.C. for process, to cause production of the statements recorded from various persons including the witnesses cited in the charge-sheet, who had been examined by the Deputy Superintendent of Police. This was the subject matter of Cr.M.P.No.420 of 1985. In Cr.M.P.No.421 of 1985 the respondents prayed for production of the report submitted by the Deputy Superintendent of Police to the Superintendent of Police, after recording the statement of several witnesses. 5(b). By an order dated 13.12.1985 the trial Judge held that the report of the Deputy Superintendent of Police was not at all necessary and the respondents were not entitled to peruse the said report. The prayer made in Cr.M.P.No.420 of 1985 was allowed. Being aggrieved by the dismissal of Cr.M.P.No.420 of 1985 the respondent filed Cr.M.P.No.l0180 of 1985 on the file of this Court, under Sec.482, Cr.P.C. to have that order dated 10.3.1986 observed, referring to the report submitted by the Deputy Superintendent of Police: “Such a document does not form part of the documents listed out in Sec.207, Cr.P.C. In this case the prosecution does not propose to rely upon this document. In fact what the prosecution witnesses have said from the beginning. But, what opinion the Deputy Superintendent of Police arrived at on the basis of such documents, has no value whatever.” Thus, the prayer made by the petitioners for the production of the copy of the report was not acceded to and Cr.M.P.No.l0180 of 1985 was dismissed. 6. In fact what the prosecution witnesses have said from the beginning. But, what opinion the Deputy Superintendent of Police arrived at on the basis of such documents, has no value whatever.” Thus, the prayer made by the petitioners for the production of the copy of the report was not acceded to and Cr.M.P.No.l0180 of 1985 was dismissed. 6. During the course of this order, David Annoussamy, J., with reference to Cr.M.P.No.420 of 1985 on the file of the trial court had observed as follows: “In this connection, the trial court has ordered that all the statements made by all the witnesses proposed to be examined, made by them before the Deputy Superintendent of Police be produced before the Court, by its order dated 13.12.1985 in Cr.M.P.No.420of 1985. If any of such documents remained to be produced and the accused have not received copies of any such document they arc entitled to get the same under Sec.207, Cr.P.C.” 7. Inspite of the specific observations of this Court, extracted above, in this petition, the prosecution has taken up a stand that to the surprise of the prosecution it was found while P.W.I was cross-examined that copies of the statements recorded by the Deputy Superintendent of Police, during his enquiry, had been furnished to the respondents herein and P.W.1 was cross-examined with reference to the aforesaid statements. Similarly it was also found that statements recorded by the Deputy Superintendent of Police from P. Ws.3 and 4 had also been furnished to the respondents and these witnesses were also cross-examined with reference to those statements. A grievance has been made by the prosecution that though the Public Prosecutor had drawn the attention of the Principal Sessions Judge that this Court had dismissed Cr.M.P.No.10180 of 1985 and as such the statements ought not to have been furnished to the respondents and could not form part of the records of the trial, the trial Judge, had the above statements marked as Exs.D1 and D3. 8. It is now argued before me by the learned Government Advocate that the trial Judge could not have given copies of the statements recorded from the witnesses, if this Court had dismissed Cr.No.l0180of 1985. The prosecution apprehend that copies had been given to the respondents and they have been permitted to cross-examine the witnesses with reference to the aforementioned statements and exhibit them contrary to the orders of this Court. The prosecution apprehend that copies had been given to the respondents and they have been permitted to cross-examine the witnesses with reference to the aforementioned statements and exhibit them contrary to the orders of this Court. A definite argument was advanced that the respondents had taken advantage of the transfer to a new Court, in order to obtain documents which this Court had held that they were not entitled to. It is only under those circumstances that Cr.M.C.No.6123 of 1986 had been filed by the prosecution. Mr.Gopinathan, learned counsel for the respondents took me carefully through the order of this Court pronounced by David Annoussamy, J., in Cr.M.P.No.10180 of 1985. It is very clear that the said application itself had only challenged the order of the trial Judge made in Cr.M.P.No.421 of 1985. That petition did not relate to the statements of witnesses recorded by the Deputy Superintendent of Police and obviously it must be so since the trial Judge himself had ordered production of those statements. What this Court had dismissed is only the prayer for the production of the report of the Deputy Superintendent of Police and not the statements of witnesses recorded by from the witnesses. On the contrary, the specific observation of this Court is: “If any of such documents remained to be produced and if the accused had not received copies, they were entitled to get the same under Sec.207, Cr.P.C.” 9. In the light of the aforementioned observation of this Court, the filing of Cr.M.P.No.6123 of 1986 appears to be completely misconceived. 1 am not able to see any violation of the directions of this Court and frankly the learned Government Advocate, after perusal of the order of this Court in Cr.M.P.No.10180 of 1985,conccdcd that the basis of Cr.M.P.No.1623 of 1986, had been knocked out. 10. As long as the Court is satisfied that the document or thing sought for, has a bearing or is relevant to the case and that production or inspection will be necessary or desirable or will serve the ends of justice, the discretion will have to be exercised even at a stage before the accused enters into defence. The document or thing called for must have some relation or connection with the subject matter of investigation, enquiry or trial or other proceeding or some link in the chain of evidence. The document or thing called for must have some relation or connection with the subject matter of investigation, enquiry or trial or other proceeding or some link in the chain of evidence. The right to cross-examine a prosecution witness includes the right to cross-examine him as to any previous statement made by him in writing or reduced into writing and relevant to the matters in question. The method of such cross-examination is regulated by Sec.145 of the Indian Evidence Act. This right, the accused will be in a position to exercise only upon the production of the previous statement of the witnesses. Again under Sec.157 of the Indian Evidence Act the testimony of a witness may be corroborated by any former statement made by such witnesses relating to the same matter, at or about the time when the fact took place or before any authority legally competent to investigate the fact. An accused person in exercising his right of cross-examining prosecution witness may find it necessary to corroborate the statement of that witness in Court under the provisions of Sec. 157 of the Evidence Act by putting his previously recorded statement, which he has every right to do. Denial of the claims of the accused for production of such documents would be to deny the accused a right given to him in the procedure prescribed, for the trial of his case. 11. On the facts of this case I find that statements have been recorded of some of the witnesses by the Deputy Superintendent of Police, Crime Branch, on 13.7.1986. These statements have been signed by the witnesses after the statements had been read over to them and accepted by them to have been correctly recorded. The statements are not recorded under Sec. 161, Cr.P.C, for they do not bear that heading. It is represented to me by Thiru Mohanram, learned counsel appearing for P.W.4 that those statements were recorded by the concerned authority on a complaint by his client that initially the investigation was not being proceeded with, impartially. The regular statements during investigation under Sec.161, Cr.P.C, have been recorded in August, 1984. As stated earlier by me, the accused undoubtedly have a right to cross-examine the witnesses in the light of their prior statements. The regular statements during investigation under Sec.161, Cr.P.C, have been recorded in August, 1984. As stated earlier by me, the accused undoubtedly have a right to cross-examine the witnesses in the light of their prior statements. 12.Cr.M.P.No.6122 of 1986 has to be dismissed as not having taken note of the purport of the order of this Court in Cr.M.P.No.10180 of 1985 and accordingly it is dismissed. 13. Cr.M.P.No.6119 of 1986 is not pressed by the learned counsel for the petitioner since the Presiding Officer has now been transferred and the present occupant is a different person. Hence Cr.M.P.No.6119 of 1986 is dismissed as not pressed.