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2005 DIGILAW 1241 (AP)

G. Ashok v. State Of A. P.

2005-12-31

B.PRAKASH RAO, P.SWAROOP REDDY

body2005
B. PRAKASH RAO, J. ( 1 ) THESE two appeals are coming up on a reference made by the learned Single Judge mr. Justice P. S. Narayana as per the orders dated 28-9-2004 for an authoritative pronouncement on the following questions:" (1 ). Whether the views expressed in kalle Byri s case (1 supra) hold good and be treated as a binding precedent in the light of the view expressed by the division Bench of this Court in In Re: asservadam s case (2 supra) and also the views expressed by the Apex Court thatthe mere technicalities or defects in investigation normally not to defeat the prosecution, if otherwise acceptable? (2 ). Whether the decision of Kalle Byri s case (1 supra) to be reconsidered in the light of the recent shift by the Apex court that investigation flaw not to normally defeat prosecution unless serious prejudice is caused to the accused?" ( 2 ) THE facts in brief which are required for considering the aforesaid questions are that the appellants, who are the accused in S. C. No. 38 of 1997 filed Criminal appeal No. 1525 of 1998 against the conviction for the offence under Section 376 of the Indian Penal Code and sentencing them to undergo minimum punishment of ten years rigorous imprisonment and to pay a fine of Rs. 2,000/- each in default to suffer simple imprisonment for two months each. The otherappeal in Criminal Appeal No. 1936 of 1999 is filed by the State seeking for enhancement of the said sentence. As observed by the learned single Judge, the facts of the case need not be gone into in detail. However, suffice it to note that the statements, which P,w. 15-lnvestigating officer, had recorded in his own handwriting, were not made part of the record and the same were not furnished. ( 3 ) HEARD Sri C. Padmanabha Reddy, the learned senior counsel appearing on behalf of the accused and the learned Public prosecutor appearing on behalf of the State. ( 4 ) SRI C. Padmanabha Reddy, the learned senior counsel appearing on behalf of the accused contended that in view of the prejudice caused to the accused in the investigation lapses itself, acquittal would have been recorded. ( 4 ) SRI C. Padmanabha Reddy, the learned senior counsel appearing on behalf of the accused contended that in view of the prejudice caused to the accused in the investigation lapses itself, acquittal would have been recorded. ( 5 ) REPELLING the said contentions, the learned Additional Public Prosecutor submitted that having regard to the sections 161 and 162 of the Criminal procedure Code (for short cr. P. C. ), it cannot be said that any serious prejudice is caused and therefore, it cannot be a ground for acquittal. ( 6 ) IT is relevant to take note that though this plea was not raised in the Court below, however, having regard to the legal effect of the statement of P. W. 15, it was allowed to be raised. He deposed that:"i filed the statements of witnesses along with charge sheet. The statement of witnesses are typed and filed into the court. I recorded the statement of witnesses with my own handwriting and later it was got typed and filed into the court. The recorded statements of witnesses are not available". ( 7 ) IN view of the aforesaid categorical admission on the part of the Investigation officer, it is contended that due to such lapses in the investigation, serious prejudice is caused and therefore, the benefit has to be extended to the accused. ( 8 ) BOTH the sides sought to place reliance on various decisions in support of their pleas and it is found that in the decision reported in kaile Byri v. State om. P. 1, the other decision of the Division Bench in In Re: Bhootapati asservadanf was not brought to the notice. Further in view of the principles as laid down in State ofil. P. v. Jagded* and Amarsingh v. Balwinder Singh*, it necessitates to lay down the governing principles. ( 9 ) FOR considering the aforesaid aspects, it is relevant to note the provisions contained in Sections 161, 162, 173 (5) and (6) and section 465 Cr. P. C. which read as follows:"161. P. v. Jagded* and Amarsingh v. Balwinder Singh*, it necessitates to lay down the governing principles. ( 9 ) FOR considering the aforesaid aspects, it is relevant to note the provisions contained in Sections 161, 162, 173 (5) and (6) and section 465 Cr. P. C. which read as follows:"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 the 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 case 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. (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 shau any such statement orany 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 Section 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) Nothing in this section shall be deemed to apply to any statement failing within the provisions of clause (1) of section 32 of the Indian Evidence act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act. 173. Report of police officer on completion of investigation: (1 ). . (2 ). . (3 ). . (4 ). . (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely otherthan those already sent to the Magistrate during investigation; (b)the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. 465. Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction forthe prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned afailure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings". ( 10 ) ON appraisal of the aforesaid provisions, it contemplates that during the process of investigation, the police are entitled to examine any person acquainted to the facts and circumstances of the case. Such statements recorded by the police cannot be used for any purpose, save as provided thereunder at any enquiry ortrialto^fhe extent of using for the purpose of contradiction of such witness in the manner as provided under Section 145 of the Indian Evidence act, 1872. Further, it specifically contemplates that on completion of the investigation, the police officer concerned has to submit the report along with all documents, statements etc. Further, the copies of all or any of the documents referred to or making part of the report shall be furnished to the accused. There is no serious dispute in regard to the proposition that an accused is entitled to get the copies of the statements etc. Further, the copies of all or any of the documents referred to or making part of the report shall be furnished to the accused. There is no serious dispute in regard to the proposition that an accused is entitled to get the copies of the statements etc. , which have been part of the investigation. The questions raised, taken in its ambit, basically, as to whether the aforesaid provisions do contemplate it as a mandatory for the investigating Officer to make every piece of document as a part of the report and supply the same to the accused and consequently whether any such failure is fatal unless it is shown that serious prejudice is caused. It is now well established that in any enquiry, the courts or the Tribunals or any Authority, where a person is sought to be proceeded against, he has to be appraised of the case on behalf of the prosecution and necessarily he is to be supplied with all the material on which reliance is placed. In Kallebyriv. State ofa. P. (1 supra), a learned single Judge of this Court, Justice Obul Reddi (as he then was) while considering the aforesaid provisions in a case where:"the original statements recorded from the witnesses under Section 161 (3) in telugu were never made available to the accused or to the Court to see ft the type written translations furnished in english tallied with the statements recorded in the first instance in Telugu. The original statements never formed part of the case diary filed into Court"it was held that:"this is a case of deliberate suppression of the statements of the witnesses recorded by the Sub-Inspector in the course of investigation and that this suppression of the statements has occasioned prejudice to the accused. The accused were denied the opportunity to properly formulate their defence with reference to the statements and a right to cross-examine the witnesses under Section 145 of the evidence Act. This is not a case of mere irregularity to say that it is curable under section 537, Criminal Procedure Code, but a case which has resulted in substantial prejudice to the accused (paras 13 and 14 ). The object of Section 173 (4) is to enable the accused persons to formulate their defence and cross-examine the witnesses with reference to the statements recorded from them under sub-section (3) of Section 161, Criminal procedure Code. The object of Section 173 (4) is to enable the accused persons to formulate their defence and cross-examine the witnesses with reference to the statements recorded from them under sub-section (3) of Section 161, Criminal procedure Code. That is the reason why a statutory duty is cast upon the prosecution under sub-section (4) of section 173, Criminal Procedure Code, to furnish to the accused, before the commencement of the inquiry or trial, copies of statements recorded under sub-section (3) of Section 161 of all the persons whom the prosecution proposes to put in the witness-box. This provision prohibits the prosecution to spring a surprise on the accused by bringing into the witness-box a witness, whose statement has not been furnished and who has not been examined during the course of the investigation. (Para 7) it is no doubt true that mere non- compliance with the requirements of sub-section (4) of Section 173, does not vitiate the proceedings or trial on render them ineffective; but it is to be seen, having regard to the facts and circumstances of each case, whether the failure on the part of the investigating officer to make available the original statements recorded even for the purpose of ascertainment of the correctness of the translations, as in the instant case, occasions prejudice to the accused. Ultimately, the question is one of prejudice. (Para 8 ). "found in that case the Investigation Officer recorded the statements in Telugu and he was not aware of the typing and the said statements were not furnished; but the one which has been prepared subsequently in english, held to be the true translation of the originals, were supplied and such failure was considered to be fatal and is not a curable one under Section 537 Cr. P. C. (now section 465 Cr. P. C. ). However, a Division bench of this Court in 2nd supra while considering the scope of Section 161 and 163 and 537 Cr. P. C. held that:"the failure to observe the mandatory provisions of Sec. 161 (3) would not ex hypothesi render the trial illegal unless and until substantial prejudice is disclosed. The question whether it would vitiate the trial must depend on the facts of each case. If the breach of the mandatory provision is such as to occasion real and substantial prejudice to the accused the trial could be said to be affected. The question whether it would vitiate the trial must depend on the facts of each case. If the breach of the mandatory provision is such as to occasion real and substantial prejudice to the accused the trial could be said to be affected. If, on the other hand, that has not in any way resulted in, prejudice to the accused, the trial could not be said to be vitiated. In other words, the infringement of Sec. 161 (3) could not be regarded as per se fatal to the trial. If witnesses whose statements were not separately recorded during the investigation did not say anything that is quite material to the prosecution case and the exclusion of their testimony would not in any way, affect the merits of the case, the breach of the provisions of Sec. 161 (3) would not lead to the quashing of the conviction as it could not be said that the principles of natural justice were in any way violated. "in that case, it was further observed at para no. 12 that:"it is most regrettable that in spite of courts stressing upon the necessity to conform to the mandatory provisions of sees. 161 and 162 of the Criminal procedure Code, the Investigating officers should persist in disregarding the important provisions of law and the warnings given by Courts. As a result of the omission to conform to the provisions, very often, the guilty go unpunished and it leads often to waste of judicial time. In several cases, this has been pointed out and yet no heed is paid by the investigating Officers to this and they persist in violating the relevant provisions of law. We hope, the government will take the necessary action and see that at least in future the investigating Officers would act in accordance with the terms of Sees. 161 and 162 Cr. P. C. and avoid much of waste of judicial time and also the acquittal of persons who, but for such violations complained of, would have been found guilty of one or other of the offences. A copy of this judgment will be communicated to Government for necessary action. " ( 11 ) IN that case, having found that there is aclearviolation under Section 161 (3) Cr. A copy of this judgment will be communicated to Government for necessary action. " ( 11 ) IN that case, having found that there is aclearviolation under Section 161 (3) Cr. P. C. in regard to one witness namely P. W. 6, the evidence of that witness alone was sought to be excluded and considering the other evidence ultimately it was held that the prosecution did not establish the case beyond reasonable doubt. ( 12 ) THE main submission made by the learned Public Prosecutor is to the effect that as the aforesaid decision of the Division bench was not cited in the decision 5th cited, the principle as laid down by the learned single Judge cannot be accepted in toto. It has to be seen, even on a reading of these two decisions, the ultimate conclusion was arrived at after taking into consideration the facts and circumstances of those cases and therefore, held that in In Re: Bhootapati asservadam s case, the evidence was excluded, whereas in the later decision, it was found that it had caused prejudice to the accused. Therefore, on the face of it, it cannot be said that there is any variance in regard to the principles as laid down in respect of the mandatory nature of the aforesaid provisions. ( 13 ) THE learned Public Prosecutor sought to place reliance on a decision in State of u. P. v. Jagdeo5 for the proposition that for any such default on the part of the prosecution, the accused would not be entitled to the benefit. In the said decision, the Apex Court while considering the case involving the offence of murder, raised an objection stating that the entire investigation was faulty and repelling the said contention, it was held that:"coming to the aspect of the investigation being allegedly faulty, we would like to say that we do not agree with the view taken by High Court. We would rather like to say that assuming the investigation was faulty, for that alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot free. " ( 14 ) CONSIDERING the provision under section 173 (4) Cr. We would rather like to say that assuming the investigation was faulty, for that alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scot free. " ( 14 ) CONSIDERING the provision under section 173 (4) Cr. P. C. read with Section 537 thereof, the Apex Court in Narayan Rao v. State ofandhra Pradestf held that:"the provisions contained in Sec. 173 (4) and Sec. 207a (3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading up to a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But non-compliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in sub- sec. (4) of Section 173 and sub-sec. (3) of Section 207-A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Sec. 173, should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of sessions, wholly ineffective. However, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the court may reopen the proceedings by insisting upon full compliance with the provisions of the Code. "in Noorkhan v. State ofrajastharf the Apex court on consideration of the said provisions once again reiterated the very same principle that:"the object of Sees. 162, 173 (4) and 207-A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. "in Noorkhan v. State ofrajastharf the Apex court on consideration of the said provisions once again reiterated the very same principle that:"the object of Sees. 162, 173 (4) and 207-A (3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined atthetrial sothatthe accused may utilize those statements for cross- examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony. Section 161 (3) does not require a police officerto record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the state is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach. "in that case considering the fact that:"the statements of the witnesses prepared by Kapuraram were supplied to the accused before the committal proceedings were started. Relying upon those statements as duly recorded under Sec. 161 (3), cross-examination of the witnesses was directed. "in that case considering the fact that:"the statements of the witnesses prepared by Kapuraram were supplied to the accused before the committal proceedings were started. Relying upon those statements as duly recorded under Sec. 161 (3), cross-examination of the witnesses was directed. But in the Court of Session the investigating officer admitted that on September 29, 1960 he did not record the statements of witnesses in detail, but merely noted certain points and after reaching Thana bali on September 30,1960 he had got detailed statements of the witnesses written out by head-constable kapuraram in the absence of the witnesses, and had destroyed the notes and jottings thereafter. Undoubtedly the investigating officer acted in a manner both irresponsible and improper, and thereby was instrumental in depriving the accused of the benefit of the "notes and jottings" written out by him. He destroyed the only documents which could be recorded as statement recorded under Sec. 161 and which are permitted to be utilized by the accused under Sec. 161. Counsel forthe appellant relying upon the two judgments of the nagpur High Court in Baliram v. Emperor ilr (1945) Nag. 151 : AIR 1945 Nag. 1 and Maganlal v. Emperor ILR (1946) nag. 126: AIR 1946 Nag. 173, submitted that omission to supply copies of the statements recorded under Sec. 161 is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice, and where the accused was deprived of his statutory rights of cross-examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses whose statements have not have supplied to the accused is inadmissible at the trial. We are unable to accept this contention for in our view the law stated by the nagpur High Court does not correctly interpret Secs. 161 and 162 Code of criminal Procedure. In a later case, the nagpur High Court in Maroti Mahagoo v. Emperor llr (1948) Nag. 110: AIR 1948 nag. We are unable to accept this contention for in our view the law stated by the nagpur High Court does not correctly interpret Secs. 161 and 162 Code of criminal Procedure. In a later case, the nagpur High Court in Maroti Mahagoo v. Emperor llr (1948) Nag. 110: AIR 1948 nag. 74 held that though the right which is given to the accused under Sec. 162 code of Criminal Procedure to use the previous statement made to the police for the purpose of contradicting a witness is a valuable right, and where the omission to give copies to the accused is proved to have caused prejudice to the accused, the testimony of such witness must be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is not inadmissible and every case must be decided in its own facts. "a Division Bench of this Court as per judgment in Criminal Appeal No. 132 of 2003, dated 17-3-2005 held that:"we have no doubt in our mind that if during the investigation, a statement of the deceased was recorded by the investigating officer, it should not have been suppressed and suppression of this statement has caused serious prejudice to the accused/appellant. For this reason and for the reasons given herein above, we feel that the benefit of doubt should have gone to the accused, as there was no evidence against the accused other than the dying declaration recorded by the Magistrate. " ( 15 ) IN view of the aforesaid principles and considering all the above provisions, it has to be held in regard to question No. 1 that there is no clash, as such having regard to the basic principles laid in Kalle Byri s case or In re, Bhootapati Asservadam s case as both proceeded on the facts and the conclusions were arrived at only after taking into account the prejudice. In regard to question No. 2, it has to be held that in view of the object and the principle behind the aforesaid provisions, it has to be held that necessarily it mandates for supply of all the documents which are part of the record submitted by the Investigating officer and any failure thereof would certainly be fatal, and it should also be seen, on such failure, any prejudice is caused. The later aspect depends on facts of each case and mainly depends on the nature of documents, which remained unsupplied. However, there cannot be any justification to withhold the original of any document more so the statements of the witnesses. Unless it is shown by the prosecution that the document is trivial in its nature and insignificant having no relevance to the case it cannot be said that no prejudice would be caused. once it is caused. Once it is held that there is any such failure resulting serious prejudice to the accused, the same cannot be treated as a curable defect under section 465 Cr. P. C. In view of the above, the reference is answered accordingly.