BHIKE RAM v. STATE OF RAJASTHAN — 1997 DIGILAW 1441 (RAJ)

Judgment A. K. SINGH, J. ( 1 ) NONE is present for the petitioner even in the third round. Learned Public Prosecutor for the non-petitioner State is present. I have heard him. ( 2 ) THIS petition under Section 482, Criminal Procedure Code, 1973 is directed against the order dated 5-10-1993 passed by the learned Additional Sessions Judge. Phalodi in Sessions Case No. 18/93, State v. Idan Ram and Others, whereby he rejected the application dated 21-9-1993 submitted by the accused-petitioners under Section 91 of the Criminal Procedure Code. ( 3 ) A perusal of the copy of the application dated 21-9-1993 shows that on behalf of the accused petitioners an application was moved before the Additional Sessions Judge, Phalodi praying that the statement of 32 witnesses who were examined by the Investigating Officers during the investigation be directed to be produced in the Court as the same have not been submitted with the report filed under Section 173 of the Code of Criminal Procedure. ( 4 ) A perusal of the order dated 510-1993 passed by the learned Additional Sessions Judge, Phalodi shows that on behalf of the prosecution it was submitted that statements of all those witnesses who were cited as prosecution witnesses and who had been examined under Section 161. Cr. P. C. during the investigation had already been filed with the report under Section 173, Cr. P. C. and that no other statements were available in the case-file. It was further submitted on behalf of the prosecution that if any witness was interrogated during investigation then that interrogation was for the satisfaction of the police. ( 5 ) THE learned Additional Sessions Judge in view of the provisions contained in Section 173, Subsections (5) and (6), of the Criminal Procedure Code, 1973 held that the prosecution was bound to supply the copies of the statements of those persons who were proposed to be examined as prosecution-witnesses during the trial and the prosecution was not legally bound to furnish the copies of the statements of other persons to the accused. As a result, the learned Additional Sessions Judge rejected the application of the accused-petitioners. ( 6 ) IT appears that the petitioners wanted the production of two kinds of statements of persons examined under Section 161, Cr. As a result, the learned Additional Sessions Judge rejected the application of the accused-petitioners. ( 6 ) IT appears that the petitioners wanted the production of two kinds of statements of persons examined under Section 161, Cr. P. C. (a) persons who were cited as prosecution-witnesses in the report submitted by the police after the investigation and (b) persons who have not been cited a prosecution witnesses in the report submitted under Section 173, Cr. P. C. ( 7 ) SO far as the statements of persons belonging to category (a) are concerned, the accused persons are entitled to the copies of such persons if they were examined under Section 161. Cr. P. C. during the investigation. Clause (b) Sub-section (5) of Section 173, Criminal Procedure Code provides that the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate alongwith the report under Section 173 of the Criminal Procedure Code, subject of course to the provisions of Subsection (6) of Section 173, Cr. P. C. If any such person (who is proposed to be examined as prosecution witness) was examined more than once during investigation (including re-investigation and further investigation) the copies of all such statements are required to be supplied to the accused persons. The object of supplying the copies of statements recorded under Section 161. Cr. P. C. is to enable the accused to defend himself properly against the charge for which process was issued against him by the Court. In Dalla v. State of Rajasthan, a Division Bench of this Court observed as under: The position which thus, emerges out is that the- investigating agency is bound to produce the statements recorded under Section 161, Cr. P. C. alongwith its report and the accused is entitled to get copies of such statements in order to confront the witnesses. When more than one statement of a witness has been recorded the accused is entitled to get copies of all such statements. This right cannot be whittled down merely be supplying the copy of only one statement. When the copies of the statements of witnesses recorded more than once are withheld and not supplied to the accused, it cannot be said to be a proper compliance of the provisions of Section 173 (5) (b) of Section 162, Cr. This right cannot be whittled down merely be supplying the copy of only one statement. When the copies of the statements of witnesses recorded more than once are withheld and not supplied to the accused, it cannot be said to be a proper compliance of the provisions of Section 173 (5) (b) of Section 162, Cr. P. C. The right to cross-examine and confront a witness with reference to his statement recorded under Section 161, Cr. P. C. is an undefeasible right and cannot be circumvented in any manner. No doubt Section 162, Cr. P. C. by inserting the words may be used by the accusedt gives a choice to the accused to contradict or confront witnesses by their earlier statements in the manner provided by Section 145 of the Evidence Act. It is for the accused to make the choice or not. But once he has made the choice, his choice remains unfettered and Cannot be restricted by the Trial Court. The provisions of Section 162, Cr. P. C. cannot be defeated merely by supplying the copy of only one statement of a witness when in fact his statement has been recorded more than once during investigation. The prosecution must supply him the copy of all such statements of a witness and failure to do so on the part of the prosecution invariably results in a material prejudice to the accused failure to supply copies of the statements recorded under Section 161 is bound to entail in prejudice to the accused and the extent of that prejudice cannot be properly imagined or measured or gauged. The right guaranteed to an accused under Section 162, Cr. P. C. is total and absolute. No exception can be taken to it by the prosecution. ( 8 ) I am, therefore, of the opinion that if a persons who is cited as a prosecution witness in the report submitted. by the police under Section 173, Cr. P. C. was examined more than once during the investigation (which term includes re-investigation and further investigation) the copies of all the statements of such person should be supplied to the accused persons in accordance with Clause (b) of Sub-section (5) of Section 173; Cr. by the police under Section 173, Cr. P. C. was examined more than once during the investigation (which term includes re-investigation and further investigation) the copies of all the statements of such person should be supplied to the accused persons in accordance with Clause (b) of Sub-section (5) of Section 173; Cr. P. C. ( 9 ) SO far as the question of supplying the copies of statements of persons other than those who were cited as prosecution witnesses in the report submitted under Section 173, Cr. P. C. is concerned, strictly speaking Sub-section (5) of Section 173, Cr. P. C. does not require the prosecution to supply the copies of the statements of such persons recorded under Section 161 of the Code of Criminal Procedure, 1973. But, it does not mean that there can be no case in which the necessity of production of statements of such persons who have not been cited as prosecution witnesses, cannot arise. It is conceivable that one or more of these persons who were examined under Section 161, Cr. P. C. but who are not proposed to be cited as prosecution witnesses might be the persons acquainted with the facts and circumstances of the case and their statements may be relevant for the purpose of deciding the question whether the accused is guilty or is innocent. In such cases, if a material witness is withheld by the prosecution a question may arise whether adverse inference should be drawn against the prosecution for withholding a material witness. The Trial Court may, therefore, direct the prosecution to produce the copies of the statements of those persons who appear to be acquainted with the facts and circumstances of the case or in other words who appear to be the material witnesses but have not been cited as prosecution witnesses. The Court may examine such witnesses if for a just decision in the case the Court considers the examination of such witnesses to be necessary under Section 311 of the Criminal Procedure Code read with Section 165 of the Evidence Act. In appropriate cases, the accused may also be supplied the certified copies of the statements of such witnesses so that the accused may consider whether, the witness should be called as a defence witness or the Court should be requested to draw adverse inference for withholding a material witness. In appropriate cases, the accused may also be supplied the certified copies of the statements of such witnesses so that the accused may consider whether, the witness should be called as a defence witness or the Court should be requested to draw adverse inference for withholding a material witness. ( 10 ) FOR the above reasons, this petition appears to be partly allowed and is hereby allowed partly in the following terms: (1) If one or more of the persons cited as prosecution witnesses in the report submitted by the police under Section 173. Cr. P. C. was examined more than once during investigation (which term includes reinvestigation and further investigation) and copies of all the statements recorded under Section 161 have not been filed, the prosecution shall within a period of 15 days from the date of passing of this order produce before the trial Judge copies of the statements of such persons recorded under Section 161. Cr. P. C. and the accused shall be supplied copies of the statements recorded under Section 161. Cr. P. C. if they have not been supplied with copies thereof. (2) The learned Additional Sessions Judge shall peruse the case-diary in order to find out whether any material witness who may be said to be a person acquainted with the facts and circumstances of the case was examined under Section 161, Cr. P. C. and, if so, whether such person has been withheld by the prosecution by not citing him as a prosecution witness. If so, the learned Sessions Judge will consider whether it is necessary in the interest of justice to direct the prosecution to produce the statement of such person recorded under Section 161 Cr. P. C. (3) In case the learned Additional Sessions Judge directs production of the statements recorded under Section 161, Cr. P. C. of any person (other than those cited as prosecution witnesses) in the Court, the accused persons may be supplied a copy of the statements on payment of necessary fee according to the rules applicable for the, supply copies. ( 11 ) THE petition is disposed of accordingly. A copy of this order be sent to the learned Additional Sessions Judge, Phalodi for information and necessary action. Petition deposed of accordingly.