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2002 DIGILAW 654 (ORI)

STATE OF ORISSA v. JAGABANDHU SAHOO ` LADA SAHOO

2002-10-09

B.P.DAS

body2002
JUDGMENT : B.P. Das, J. - The State is in appeal against the judgment passed by the Sub-Divisional Judicial Magistrate, Kuchinda in 2(c) C.C. No. 40 of 1984/Tr. No. 260 of 1984, acquitting the accused-Jagabandhu ' Lada Sahoo of the charges u/s 3(a) of the Railway Property (Unlawful Possession) Act. 2. Briefly stated the prosecution case is that on 2.4.1984 while (P.W.1) B.C. Sethy, the S.I. of Railway Protection Force, Rourkela, along with his O.I.C. and other staff was on patrolling duty at Sagara Railway Station, at about 2.30 hours he detected the accused transporting one brake block bearing the mark "TRS WABG 158" and one floating lever of the Railways. As the accused possessed the aforesaid railway properties without any authority, the said properties were seized and the S.I.-P.W.1 drew up a plain paper first information report and took up investigation after completion of which he submitted the prosecution report against the accused. The plea of the accused was denial of the charges. While the prosecution examined four witnesses in order to prove its case, the defense examined none. 3. The learned S.D.J.M. on going through the materials on record has acquitted the accused of the charges on the ground that copies of the statements of witnesses recorded by the police were not made available to the accused in terms of Section 173 of the Code of Criminal Procedure (Code of Criminal Procedure) for which the prosecution case must fail. 4. Learned Counsel for the State submits that the question of non-supply of police papers is not fatal to the prosecution case for which the trial court has fallen into an error by acquitting the accused. He further submits that as sufficient materials were available on record against the accused, the trial court instead of acquitting the accused on technical ground like non-supply of police papers should have considered the case on merits. According to the State, if the evidence on record would have been considered on proper perspective, there would not have any scope for the trial court to record an order of conviction of the accused for the offence alleged against him. 5. Before looking into the evidence on record, it would be proper to examine whether non-supply of police papers has in any way vitiated the trial. 6. 5. Before looking into the evidence on record, it would be proper to examine whether non-supply of police papers has in any way vitiated the trial. 6. Law has cast a duty on the prosecution to supply the documents inclusive of the statements recorded u/s 161, Code of Criminal Procedure by the investigating agency with the object of affording an opportunity to the accused to know as to what is the evidence against him which the prosecution at the trial could adduce. There is not doubt that if the nature of the evidence and the persons, who are likely to come to witness box, are known to the accused, he would be in a better position to prepare his defense after taking proper legal advice. A cross-examiner would also be in a position of advantage. The court itself also, who holds the trial, will find great facility if it knows from beforehand the nature of the case, nature of the evidence, and other things connected with particular prosecution. The provisions of the Code of Criminal Procedure which require the supply of documents and the statements prepared at the investigation stage cannot be treated as mere superfluity or an empty formality. Those provisions have been enacted by the Legislature with a definite object and that is why a duty is cast upon the prosecution. (See Mohammad Sayeed Vs. The State. In this connection I may also refer to a Division Bench decision of the Rajasthan High Court in Dalla and Another Vs. State of Rajasthan wherein the Court dealing with a similar question held as follows: 9. The position which, thus, emerges out is that the investigating agency is bound to produce the statements recorded u/s 161 Code of Criminal Procedure along with 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 by supplying the copy of only one statement. 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 by 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) or Section 162, Code of Criminal Procedure The right to cross-examine and confront a witness with reference to his statement recorded u/s 161, Code of Criminal Procedure is an indefeasible right and cannot be circumvented inserting the words "may be used by the accused" gives a choice to the accused to contradict or confront witnesses by their earlier statements in the manner provided by Section 145, Evidence Act. It is for the accused to make the choice, or No. But once he has made the choice, his choice remains unfettered and cannot be restricted by the trial Court. The provisions of Section 162 Code of Criminal Procedure 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 u/s 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 u/s 162, Code of Criminal Procedure is total and absolute. No exception can be taken to it by the prosecution. 7. In the case at hand, on going through the entire record, I do not find anything to indicate that copies of statements of witnesses recorded by the police have ever been supplied to the accused. No exception can be taken to it by the prosecution. 7. In the case at hand, on going through the entire record, I do not find anything to indicate that copies of statements of witnesses recorded by the police have ever been supplied to the accused. Keeping in view the observations made in the above-noted decisions, I am of the opinion that the impugned order of acquittal recorded by the trial court is legal and justified and needs no interference by this Court since the mandatory provisions of Section 173 of the Code of Criminal Procedure have not been complied with by the prosecution for which the accused has been greatly prejudiced. 8. In the result, the appeal is dismissed and the order of acquittal passed by the learned S.D.J.M., Kuchinda, in 2(c) C.C. No. AC/84 (Tr. No. 260/84) is affirmed. Final Result : Dismissed