Sanjay Singh v. State — 1989 DIGILAW 426 (ALL)

JUDGMENT Rajeshwar Singh 1. The accused filed this revision against the order of the Magistrate rejecting their prayer for supply of copies of statements of some witnesses proposed to be examined by the prosecution at the trial. The revision is being disposed of finally with the consent of the parties. 2. The facts are that these seven revisionists are being prosecuted in connection with murder under sections 302, 120-B IPC and sections 25 and 27 of the Arms Act. Some of the offences are with the aid of section 34 IPC. The Magistrate took cognizance and copies of the statements of the witnesses were given to the accused. There are,1-78 witnesses, whom the prosecution proposes to examine, but copies of their statements were not given to the accused The case of the State was that they are witness ess of formal nature and their statements were not recorded under section 161 CrPC. The accused requested the Magistrate that the State should be ordered to give copies of these statements to the accused. The learned Magistrate rejected the prayer saying that the statements of these witnesses were not recorded and only copies of those statements, which are recorded under section 161 CrPC, are given. It is against this order of the Magistrate that the present revision has been filed. The State has not pleaded specifically the bar of section 397 (2) CrPC which provides that the powers of revision shall not be exercised in relation to any interlocutory order. Even if it would have been pleaded, probably that could not be of much assistance. 3. The expression 'interlocutory order' has been used in section 397 (2) CrPC in a restricted sense. It denotes orders of purely interim and temporary nature which do not decide or touch the main rights or liabilities of the parties, and the order which substantially affects the rights of the accused is not an interlocutory order (V. C. Shukla, 1980 Supreme Court, 962 per Singhal, On that reasoning an order of the nature, which may ultimately vitiate the trial, if copies are not given, may not be treated to be an interlocutory order. But the position remains that either way this revision is decided, it will not terminate the proceedings and proceedings will continue. So, it may be possible to say that the order is an interlocutory one. But the position remains that either way this revision is decided, it will not terminate the proceedings and proceedings will continue. So, it may be possible to say that the order is an interlocutory one. Still, the matter is so important that it will affect the entire trial. Ultimately, it may be found that the trial is vitiated for not giving copies. Hence inherent powers of the court, saved by section 482 CrPC, may be employed even if it is held that the revision is not maintainable, the impugned order being an interlocutory one. 4. The 1973 Code put a bar on the power of revision in order to facilitate expeditious disposal of cases, but in section 482 CrPC it was provided that nothing in this Code, which would include section 397 (2), shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction it should be held that the power provided under section 397 (2) operates only in exercise of revisional power of the High Court, meaning thereby that the High Court will have no power to interfere in relation to any interlocutory order. But, in such a case the inherent powers will come into play there being no other provision in the Code for the redress of the grievance of the aggrieved party. In case the impugned order clearly brings out a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference of the High Court is absolutely necessary, then nothing contained in section 397 (2) CrPC can limit or affect the exercise of the inherent powers of the High Court. Such cases would of course necessarily be few and far between, (Madhu Limye, 1978 AWC 96 SC). One such case can be the present one, wherein if the proceedings are allowed to go on and ultimately it is found that copies of statements should have been given, then the accused may be in a position to assail the entire trial as vitiated. Hence, this is a case where inherent power should be exercised. Even in the application of revision it has been said by the applicants that it is also being moved under section 482 CrPC. Hence, this is a case where inherent power should be exercised. Even in the application of revision it has been said by the applicants that it is also being moved under section 482 CrPC. Thus it is clear that (sic) under section 397 (2) CrPC against the revision of an interlocutory order, the matter should be considered by this court either as a revision or as an application under section 482 CrPC. 5. The point for consideration is whether investigation is free to not record the statements of witnesses as it likes under section 161 CrPC and then to refuse to give copies saying that the statements were not recorded or the witnesses were of formal nature. 6. Parties have referred to some decisions in support of their respective arguments. Before examining these decisions it will be necessary to bear in mind that any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made. If we look into them devoid of facts, then there is every possibility of an error. On a perusal of the decisions, which will presently be referred, it will be found that their facts were different, and the question that has been mentioned in earlier paragraph was not specifically considered in any of those decisions. Learned counsel for the revisionists relied upon the following cases : (1) State of Maharashtra v. Sharanappa Malappa Sakhare, 1975 Bombay Law Reporter 132. It was decided in this case that witnesses may be examined even at the 11th hour inspite of the fact that they were not mentioned earlier, but copies of those statements must be supplied. (2) S. J. Chowdhary v. The State, 1984 CrLJ 864 . In this case statements were recorded more than once and the court held that copies of all the statements should be given. (3) The State of Punjab v. Mohinder Singh, LXXVI-1974 PLR 365. The point decided in this case was that even if statements are not recorded separately under section 161 CrPC and they are incorporated in the case- diary, the accused has a right to get the copies of the statements of those persons. (4) Parveen Kumar v. State of Gujarat, 1982 CrLJ 763 . The point decided in this case was that even if statements are not recorded separately under section 161 CrPC and they are incorporated in the case- diary, the accused has a right to get the copies of the statements of those persons. (4) Parveen Kumar v. State of Gujarat, 1982 CrLJ 763 . In this case it was decided that enlarged photographs of disputed hand writings should be made available to the accused. 7. The State has relied on the under noted cases : (1) P. Vijayapal Reddy v. State, (1978) 4 SCC 63 . The reliance is on the observation that High Court ordinarity does not interfere at an interlocutory stage. Firstly, there is the word 'ordinarily' and secondly, in this case some evidence regarding the user of stones was necessary for determining the question in issue. So, without taking evidence that interlocutory matter could not be interfered with. (2) State of U. P. v. Lakshmi Brahman, AIR 1983 SC 439 . Reliance has been put in on paragraph 12, but on perusal of it, it does not appear to be of much help in this case. (3) J. B. Roy v. The State, AIR 1968 Andhra Pradesh 236. The point really decided in this case is that the police is not precluded from examining any witness who was not examined under section 161 CrPC. (4) Public Prosecutor v. C. D. Naidu, AIR 1969 Andhra Pradesh 367. This decision also says that witnesses not examined under section 161 CrPC can be examined at the time of trial. 8. Thus, it will be seen that in none of these decisions it was considered whether investigation is bound to record the statements of all the witnesses, and what will be the position about giving of the copies if the statement of a witness is not recorded under section 161 CrPC. I would, therefore, prefer to refer to relevant sections. Firstly, there is section 161 CrPC. It says that any police officer making an investigation may examine orally and person supposed to be acquainted with the facts and circumstances of the case. Here, there is some controversy whether the word 'may' means 'shall' and whether police officer is bound to examine every witness in writing. Firstly, there is section 161 CrPC. It says that any police officer making an investigation may examine orally and person supposed to be acquainted with the facts and circumstances of the case. Here, there is some controversy whether the word 'may' means 'shall' and whether police officer is bound to examine every witness in writing. The word used is 'may' and it is used purposely; because the police officer may have to examine orally a large number of witnesses to find out the facts, but all of them may not be relevant. So the word 'may' has been used just to empower the police officer to examine orally any number of witnesses, he likes, and then to choose as to who are relevant among them and to record their statements only. Then subsection (3) says that the police officer may reduce into writing any statement made to him in the course of an examination and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. This sub-section (3) gives a discretion to the police officer to record the statement of such witness into writing as he considers fit, and it also does not mean that the police officer shall reduce into writing the statement of every witness, whom he examines. 9. Section 162 CrPC merely provides that if a statement is reduced to writing, it shall not be signed by the person making it. Thus, there is a prohibition of the signature of the witness being taken on the statement, and it does not throw any light on the question whether the police officer should reduce into writing statement of every witness. 10. Then there is section 173 CrPC. A report under this section is sent by the Investigating Officer to the Magistrate when there is sufficient evidence for proceeding against the person concerned. Its sub-section (5) says that the Investigating Officer shall forward to the Magistrate with the report the statements of all the persons, whom the prosecution proposes to examine as its witnesses. Thus the emphasis is on sending the statements of all the persons, whom, the prosecution proposes to examine. Its sub-section (5) says that the Investigating Officer shall forward to the Magistrate with the report the statements of all the persons, whom the prosecution proposes to examine as its witnesses. Thus the emphasis is on sending the statements of all the persons, whom, the prosecution proposes to examine. Of course, after the word 'statement' the words 'recorded under section 161 CrPC also occur if the words been not there, it would have remained as to which statements are to be sent and a person reading the section would have remained in some doubt as to wherefrom these statements can be had. So, to clarify the matter and to avoid vagueness the words 'recorded under section 161 CrPC have been added. This discloses the source from which the statements can be had, but that is not the only source. Now there remains no doubt and it becomes amply clear as to where the statements to be supplied are to be found. Thus, emphasis is on the words 'of all the persons whom the prosecution proposes to examine' rather than on the words 'recorded under section 161 CrPC'. As held in the case of Mahinder Singh, referred to earlier by Punjab and Haryana High Court, the copies of statements are to be supplied, even if they have not been recorded under section 161 CrPC and have been incorporated in the case-diary prepared under section 172 CrPC. Hence, the words 'recorded under section 161 CrPC' used in section 172 CrPC or 207 (iii) CrPC do not appear to be of real importance and they are more or less clarifactory and explanatory to show as to where statements that are to be supplied can ordinarily be found. In this connection section 172 CrPC is also important. It relates to diary of proceedings in the investigation. It says that every police officer making an investigation shall make certain entries in his diary and shall enter the statement of the circumstances ascertained through his investigation. So, the Investigating Officer has to record all the circumstances ascertained through his investigation and which may be relevant for the proposed prosecution. If he finds any evidence which is relevant, it has to be recorded. So, the Investigating Officer has to record all the circumstances ascertained through his investigation and which may be relevant for the proposed prosecution. If he finds any evidence which is relevant, it has to be recorded. If a statement of witness is relevant for the purposes of prosecution, it has to be recorded and it cannot just be excluded saying that it is the discretion of the police officer under section 161 CrPC to record that statement or not to record it. Of course, if a statement is recorded, sub-section (3) of section 161 CrPC will come into play and he will have to make a seprate record of the statement. It will not suffice only to record the statement in the case diary. So, on reading both. these sections together it seems that every relevant statement should be recorded in order to make the case diary complete under section 172 CrPC and the method of recording should be the one provided in section 161 (3) CrPC 11. Here it will be beneficial to refer to section 190 CrPC as well Section 190 CrPC relates to cognizance of the offences by the Magistrate. It says that the Magistrate may take cognizance of any offence upon a police report of such facts. When police reports that an offence is made out, the Magistrate has to exercise his judicial mind and he has to come to a conclusion whether there is ground for proceeding and he should take cognizance. It was held in M/s. India Carat Pvt. Ltd. v. State of Karnataka, 1989 ACrR 178 SC that the well-settled position is that upon receipt of a police report under section 173 (2) CrPC, the Magistrate is entitled to take cognizance of an offence under section 190 (1) (b) CrPC even if the police report is to the effect that no case is made out against the accused. His Lordship proceeded to say that the Magistrate can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. Thus, the position is that police is not the final authority for saying that cognizance should be taken against the accused or not. The Magistrate has to consider the record. Thus, the position is that police is not the final authority for saying that cognizance should be taken against the accused or not. The Magistrate has to consider the record. Police may recommend that cognizance be taken, still the Magistrate may or may not take cognizance. The police may say that cognizance may not be taken, still the Magistrate may take cognizance. Moreover, as pointed out earlier, the Supreme Court said that the Magistrate can take into account statements of the witnesses examined by the police. If police does not record the statements of the relevant witnesses in full, on the basis of which it says that cognizance should be taken, how the Magistrate will be able to make up his mind and decide judicially whether cognizance should be taken or not. This also indicates that recording of the statements of the witnesses is necessary. 12. We may now refer to section 207 CrPC. When a case is instituted on a police report, the Magistrate is required, without delay, to furnish to the accused statements recorded under section 161 CrPC of all the persons whom the prosecution proposes to examine as witnesses. Here also the intention appears that the statements of all the persons, whom prosecution proposes to examine, should be submitted. Of course, they should have been recorded under section 161 CrPC. If it is held for a moment that the police is not bound to record the statement of witnesses and supply its copies to the court, the Investigating Officer may not record statement of any witness at all, and if he does so, the Magistrate can never find whether it is a case of which cognizance should be taken. This is apart from the fact that in that situation the accused will not even vaguely know as to what case he has to meet. This case will be committed to the sessions if Magistrate thinks it proper. Section 226 CrPC provides how a sessions trial is opened. It says that the Prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Hence, the law has provided another safeguard that before starting the prosecution, the prosecution has to tell the witnesses whom it proposes to examine and the nature of the evidence that they would give. Hence, the law has provided another safeguard that before starting the prosecution, the prosecution has to tell the witnesses whom it proposes to examine and the nature of the evidence that they would give. This is to protect the interest of the accused so that he may know before hand the case of the prosecution that he has to meet. If the statements are recorded in full it will also be of help to the Public Prosecutor in Sessions Court as on the basis of those statements he will be able to state his case and tell the court as to what evidence is required to prove the case, and he will not look to others for assistance. 13. In the case of In re Mettu Pentayya, AIR 1960 Andhra Pradesh 545, decided by a Division Bench, it was held that it is true that section 161 (3) gives the investigating officer a discretion in the matter of recording the statements of witnesses but that discretion has to be exercised soundly and not arbitrarily or capriciously and certainly not in such a manner as to handicap the accused in their defence or deprive the Court of valuable material for ascertaining the truth. 14. In the case of Parveen Kumar Lalchand Shah relied upon by the revisionists and referred to earlier, we find an extract from the report of the Joint Committee. It is to the following effect : "They consider that is very necessary in order to give the accused all possible help in defending himself that he should be aware of all the statements, reports, confessions, etc., before the commencement of the trial." Thus it is clear that even the Joint Committee was of the view that an accused should have all statements before the commencement of the trial. 15. Under the present system cross-examination of a witness is a potent instrument for finding out the truth. We have no other instrument, except evidence of experts to a certain extent, to find out whether a witness is speaking truth or making a wrong statement. When most important and rather the only instrument to find out truth is cross-examination, there should be every effort that it should be effective and partly should not be put at a disadvantage at the time of cross-examination. When most important and rather the only instrument to find out truth is cross-examination, there should be every effort that it should be effective and partly should not be put at a disadvantage at the time of cross-examination. It can very well be imagined as to what will be the position of cross-examination if all of a sudden the accused finds himself in court facing certain witnesses with a direction that he or his counsel could examine him without the least previous inkling as to what they would say- I think that in such a position effective cross-examination cannot at all be possible and the only instrument of finding out truth available to us will be rendered of no use. 16. This is considered so important that even in administrative enquiries against Government servants it has been provided in most of the rules that in the charge sheet it should be clearly mentioned as to who is proposed to be examined and what evidence he is expected to give. Article 21 of the Constitution may also be referred. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law. The argument of the State is that this Article says that it should be the procedure established by law and not procedure proposed by a party. To this extent he is right. 17. However in the case of Smt. Triveniben v. State of Gujarat, (1989) 1 SCC 678 their Lordships quoted an earlier judgment of the Supreme Court wherein it was said that essence of the matter is that all procedure, no matter what the stage, must be fair, just and reasonable. Then the Supreme Court proceeded to say that Article 21 received a creative connotation. It demands that any procedure which takes away the life and liberty of persons must be reasonable, just and fair. This procedural fairness is required to be observed at every stage and till the last breath of the life. Thus the constitutional mandate seems to be that every procedure, prescribed by law, should be just, reasonable and fair. The result is that the Court should make an attempt to put that interpretation on statutory law which would make the procedure fair and advance the cause of justice, of course if it is possible keeping the language of the statute in view. The result is that the Court should make an attempt to put that interpretation on statutory law which would make the procedure fair and advance the cause of justice, of course if it is possible keeping the language of the statute in view. In this connection State of Tamil Nadu v. Kodaikanal Motor Union (P) Ltd., (1986) 3 SCC 91 , may be referred. There the Supreme Court said that the Courts must always seek to find out the intention of the Legislature. This can be done from the language used in a statute, but courts should not always cling to the literalness and should endeavour to avoid an unjust or absurd result. The purpose of the Act and the object of a particular section have to be borne in mind. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye some violence to language is permissible. We have seen the Report of the Joint Committee. We have seen that without prior knowledge to the accused about the statements of the witnesses, cross-examination can not be made effectively. Hence, even if some violence has to-be done to the language, we should try to put that interpretation which will be fair and in the interests of justice and in keeping with the Constitutional mandate that every procedure should be fair. 18. So keeping all these circumstances in view, I feel that to make the procedure reasonable it should be held that the investigating officer may examine any number of witnesses orally, but he is not absolutely free to record or not to record statement of any witness at his sweet will. He has to exercise his discretion soundly and if a statement is relevant so as to have a tendency to prove the guilt of the accused or so as to give an idea to the Magistrate whether he should proceed or not, it must be recorded and its copy should be made available to the accused before the commencement of the trial so that he may be in a position to meet the case of the prosecution. Now the question is to what should be done in the circumstances if no statement is recorded, though it is of such a nature that it should have been recorded by the investigating officer exercising his discretion soundly. Now the question is to what should be done in the circumstances if no statement is recorded, though it is of such a nature that it should have been recorded by the investigating officer exercising his discretion soundly. One suggestion given to the Court was that under section 156 (3) CrPC it may order further investigation. Here cognizance of the case has been taken and as regards section 156 (3) CrPC it was said by the Supreme Court in Devarapalli Lakshminarayana Reddy, 1976 ACC 23 that this provision relates to pre-cognizance stage. In the case before us cognizance has already been taken. So resort to section 156 (3) CrPC may not be appropriate. 19. Section 207 CrPC makes it mandatory for the Magistrate to furnish to the accused the statements recorded under section 161 CrPC of all the persons whom the prosecution proposes to examine as its witnesses. Here we may put emphasis on the phrase "of all the persons whom the prosecution proposes to examine as witnesses". Keeping the Constitutional mandate in mind that every procedure should be fair and also the observations of the Joint Committee, probably it will be fair to put such an interpretation on this provision that statements of all the necessary witnesses may be supplied to the accused and it may be done even if slight violence to the language has to be resorted to. So this provision, that is, 207 (iii) can be interpreted to mean, that the phrase, "statements of all the persons recorded", should not only be given the meaning "of all the statements actually recorded," but the meaning that "the statements of all the persons which should or ought to have been recorded" in all fairness to all the parties. If such an interpretation is put, the Magistrate will be required not only to give copies of the statement of the witnesses which have been recorded, but also of witnesses, which should have been recorded. If after enquiries from the prosecution about the nature of evidence of a witness the Magistrate finds that the statement is material for doing justice and for ensuring fair procedure, he can direct the investigation to record the statement of a particular witness and make its copy available to the accused. It is in this light that I propose to consider the facts of this case. 20. It is in this light that I propose to consider the facts of this case. 20. The counter affidavit of Sri R. S. Dhankar Inspector C.B.I, can be referred to and it will be most helpful in analysing as to what is the position of the witnesses. In this statement he has divided the witnesses in 8 categories and I would take these witnesses category wise. In the first category, there are witnesses of seizure memos, search memos or of recovery memos. Copies of these memos have already been supplied to the accused persons. All that these witnesses are expected to say is that they would prove these memos. Then supply of copies of these memos would serve the purpose and no other statement is to be recorded or given. Learned counsel for the revisionists very candidly accepted the position and it was so good of him. 21. In category no. 2 there are witnesses, who are doctors. At this stage it appears that they would come to give only expert evidence of technical nature. If they come to say only this much, copies of their statements need not be supplied and the revisionists do not insist upon it, but the State shall see that if any of these witnesses also state about the facts, then their statements will have to be recorded and their copies supplied to the accused. 22. In category no. 3 there are police officers who were associated with the investigation of the case or other allied matters at one stage or the other. This description is somewhat vague and from this it is not exactly clear as to what these police officers will depose, whether they would say that they arrested such a person at a time or they will give some evidence as to what that person and others said at the time or something about the facts. So, the Magistrate shall have an idea from the prosecution as to what all these witnesses" would depose, and then he would decide, keeping the observations of this judgment in view, whether their statements should be recorded and their copies should be given to the accused or not. In category no. 4 there are experts, who would give expert opinion and copies of their opinion have been supplied to the accused. In category no. 4 there are experts, who would give expert opinion and copies of their opinion have been supplied to the accused. So, there is no need to give copies of those statements to the revisionists and the learned counsel for the revisionists also accepted this as sufficient compliance with the provisions of section 161 CrPC. 23. In category no. 5 the witnesses mentioned are persons in whose presence inquest report was prepared. Their statements are only formal. Learned counsel for the revisionists accepts that the receipt of inquest report would do, so, copies of their statements need not be given. 24. In category no. 6 there are police officials who kept the accused Baparda while taking them from jail to some other place or who took some property and did not allow it to be handled by anyone. It was explained to the learned counsel for the revisionists that these persons should have nothing to say except that during such period the property or person remained in their custody and no body saw the person or handled the property. So, their statements also appear to be of formal nature and the learned counsel for the revisionists agreed not to press for their statements. In category no. 7 there are persons in whose presence some specimen hand writing was taken. This will suffice that it has been disclosed that handwriting was taken in their presence. So their statements were also considered sufficient by the learned counsel for the revisionists and they need not be supplied. 25. Lastly, there is category no. 8 and it is somewhat important. It has been stated in the affidavit, pointed out earlier, that these witnesses are of formal nature to prove either nothings in the file or prove the reservation chart, sanction, issuing of notification, recording of FIR or holding of test identification parade. This does not give a full idea as to what the witnesses are expected to depose. So, the Magistrate will find out from the prosecution as to what these individual witnesses are expected to depose. This does not give a full idea as to what the witnesses are expected to depose. So, the Magistrate will find out from the prosecution as to what these individual witnesses are expected to depose. If they just prove that a telephone was booked from a particular telephone number or it was booked to a particular telephone number or such other thing, their statements may not be important, but if they say something about the facts, such as, what was the content of the telephone call and who made it, or some other such thing, their statements will become important. So, the Magistrate after finding out the nature of the statement, will decide whether statements of those witnesses should be recorded and their copies supplied to the accused. Learned counsel for the State points out that these witnesses will not prove any talk, but this is left to the discretion of the Magistrate to find out as to what these witnesses are expected to depose and whether copies of their statements should be supplied to the accused or not. 26. Before parting I would thank counsel for the parties, who assisted the Court with dignity and courtesy without identifying themselves with the counsel or the client. The revision is disposed of finally and the learned Magistrate is directed to dispose of the matter in accordance with the observations made in this judgment. The copy of judgment be sent to the trial court atonce and copies be given to the counsel for the parties on payment of usual charges in three days.