On what grounds Magistrate can reject application of accused

Bombay High Court

Angadh S/O. Rohidas Kadam, …
vs
The State Of Maharashtra And …

on 12 December, 2006
Equivalent citations: 2007 (109) Bom L R 34

Bench: B Gavai
JUDGMENT B.R. Gavai, J.

1. Rule. Rule made returnable forthwith. Heard by consent.

2. By way of present application, the applicant challenges the order passed by the learned Ad hoc Additional Sessions Judge, Gangakhed, dated 4th September 2006, below Exhibit 51 in Sessions Trial No. 6/2006, thereby rejecting the application of the applicants / accused for direction to the prosecution to produce statements of Dadarao Marotrao Kadam, Bapurao Dnyandeo Kadam, Kusumbai Bapurao Kadam and Dadarao Limbaji Kadam, recorded under Section 161 of the Criminal Procedure, 1973.

3. The factual background, in short, giving rise to the present petition is as under:

The applicants are facing trial in Sessions Trial No. 6/2006 before the Ad hoc Additional Sessions Judge, Gangakhed, for the offence punishable under Sections 498A, 304B read with Section 34 of the Indian Penal Code, arising out of Crime No. 66/2005 registered at Police Station, Palam (Taluka Palam, District : Parbhani).

During the course of trial, the prosecution examined Police Inspector, Mukund Kewle, who is the Investigating Officer, as prosecution witness No. 6. In his cross examination, he has deposed thus:

I recorded statements of Dattarao Kadam, Bapurao Kadam, Kusum Kadam and Dadarao Limbaji Kadam. On going through record, I say that their statements were not filed in court along with charge sheet. It is true to say that statements of these persons were not filed in court along with charge sheet because they did not support prosecution’s case.

After the evidence of PW 6 was recorded, the Counsel for the applicants filed an application below Exhibit 41 seeking a direction to the Investigating Officer to produce statements of the aforesaid four persons which were recorded under Section 161 of the Code of Criminal Procedure, 1973. The same came to be rejected on the same day. In the meanwhile, the defence had applied for issuing process to the aforesaid four persons in order to examine them as defence witnesses. This application has been granted and they have been summoned to appear as witnesses.

The counsel for the applicants thereafter filed an application below Exhibit 51 purportedly under Section 233(3) of the Code of Criminal Procedure, to direct Palam Police Station to produce the statements recorded in Crime No. 66/2005 under Section 161 Cr.P.C. of the aforesaid four persons. The same came to be rejected. Hence, this application under Section 482 of the Code of Criminal Procedure, 1973.

4. Mr. Chatterjee, learned Counsel appearing on behalf of the applicants, submitted that the learned trial court has not taken into consideration the import of Section 233(3) of Cr.P.C. He submits that perusal of Section 233(3) would reveal that it is mandatory for a Magistrate to issue process for production of the documents. He submits that the refusal can be only on three grounds i.e. if the application is made for the purpose of vexation or delay or for defeating the ends of justice. He further submits that such a ground has to be recorded by him in writing. He further submits that the judgment of this Court in case of Ashok Ananda Hange v. State of Maharashtra reported in 2001(3) Mh.L.J. 760, is on interpretation of provisions of Section 173 of Cr.P.C. and not on the provisions of Section 233 of Cr.P.C. and, therefore, reliance placed by the learned trial court was not well placed. He further submitted that in view of the law laid down by the learned Single Judge of this Court in case of Ramesh Wamanrao Babhulkar v. State of Maharashtra reported in 1995(2) Mh.L.J. 724, the accused is entitled to have copies of all statements of witnesses recorded by prosecution under Section 161 of the Code even if a particular statement is not being relied upon by the prosecution. He has further relied upon judgment of Rajasthan High Court in case of Dhananjay Kumar Singh v. State of Rajasthan reported in 2006 CRI.L.J. 3873, wherein a similar view has been taken.

5. Mr. S.D. Kaldate, learned Counsel appearing on behalf of respondent No. 1 submits that the accused is entitled to only copies of such of the witnesses who are examined by the prosecution.

6. From the record, it can be seen that though the Investigating Officer has in clear terms admitted that the statements of those four persons have been recorded, they were not filed in the court along with the charge sheet because they did not support the prosecution case. The learned trial court has rejected the application on the sole ground that since the statements are not filed along with the charge sheet, it was not necessary to supply copies of the same to the accused.

7. Therefore, the question that arises for consideration is as to whether the accused is entitled to the copies of the statements of persons recorded under Section 161 of Cr.P.C., even if they do not form part of the charge sheet and that such witnesses are not examined by the prosecution. The another question that will also be required to be considered is regarding the scope of Section 233 of Cr.P.C. For appreciating the rival contentions, it would be necessary to refer to certain provisions of the Code of Criminal Procedure, 1973.

8. Section 161 of Cr.P.C. reads as under:

(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.

Section 162 of Cr.P.C. reads as under:

(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced in writing, be signed by the person making it; nor shall any such statement or any 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 falling 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.

Explanation : An omission to state a fact or circumstance in the statement referred to in Sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

Sub-section 5 of Section 173 of Cr.P.C. reads as under:

Report of police officer on completion of investigation.

(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 other than 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.

Section 207 of Cr.P.C. reads as under:

Supply to the accused of copy of police report and other documents.

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

i) the police report;

(ii) the first information report recorded under Section 154;

(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (6) of Section 173;

(iv) the confessions and statements, if any, recorded under Section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173;

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused;

Provided further that if the Magistrate is satisfied that any document referred to in clause

(v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

Section 233 of Cr.P.C. reads as under:

(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

It could thus be seen that under Section 161 of Cr.P.C., a police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case. It can be seen that such person is bound to answer all queries relating to such case put to him by the Investigating 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. The Police Officer is authorized to reduce into writing any statement made to him in the course of an examination under the said Section; and if he does so, he shall make a separate and true record of the statement of each of such persons whose statement he records.

9. Section 162 of Cr.P.C. requires that no statement made by any person to a police officer, if reduced to writing, be signed by the person making the statement. Sub-section 1 of Section 162 prohibits the use of such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, except permitted by the proviso. The proviso to the said Section permits the accused to use any part of his statement if duly proved, to contradict the prosecution witness of whose statement is recorded, in the manner provided under Section 145 of the Indian Evidence Act.

Section 173(5) requires that when report after completion of investigation is sent to the Magistrate, all documents or relevant extracts thereof on which the prosecution proposes to rely, and the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses, are to be forwarded along with the report.

Section 207 of Cr.P.C. mandates furnishing of the accused free of costs copies of certain documents along with the statements recorded under Sub-section 3 of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section 6 of Section 173. Sub-section 6 of Section 173 provides that 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 interests 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. The police officer is also required to state his reasons for making such request.

Section 233 of Cr.P.C. enables an accused after he enters his defence, to apply to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross examination, or the production of any document or other thing. It further provides that if such an application is made, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It further provides that such grounds shall be recorded by him in writing.

10. It can be seen from the aforesaid provisions that a valuable right is available to an accused under Section 162 of Cr.P.C., to confront a prosecution witness with any part of his statement which is duly proved to contradict such a witness in the manner provided under Section 145 of the Indian Evidence Act, 1872. It can further be seen that as per provisions of Section 173(5)(b) and Section 207(iii) of Cr.P.C., a police officer is bound to forward to the Magistrate, along with his report, the statement of all the persons whom the prosecution proposes to examine as its witnesses, and that the Magistrate is duty bound to furnish to the accused, free of costs copies of statements recorded under Sub- Section 3 of Section 161 of all persons whom the prosecution proposes to examine as its witnesses. However, a part therefrom could be excluded for which a request for such exclusion is made by the Investigating Officer under Sub-section 6 of Section 173 and granted by the learned Magistrate.

11. The learned Single Judge of this Court in case of Ramesh Wamanrao Babhulkar v. State of Maharashtra (supra), has held thus:

It thus appears to be an established position that the accused is entitled to have the copies of all the statements of witnesses for prosecution recorded under Section 161, Criminal Procedure Code, even if that particular statement is not being relied upon by the prosecution, it being unfavourable to the prosecution.

The learned Single Judge of Rajasthan High Court, in case of Dhananjay Kumar Singh’s case (supra), dealing with similar situation, has observed thus:

28. Despite the legal provisions, despite the case law, there is still a school of thought which postulates that the police and the prosecution can withhold information both from the accused and the Court. According to this thinking, in case the prosecution does not wish to rely on the statements of certain witness, or on some piece of evidence, then it is not bound to disclose the same, even if the evidence is in the favour of the accused. Such an interpretation would be both against the Principles of Natural Justice and against the concept of fair play. Undoubtedly, Principles of Natural Justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing “all” the evidence collected by the investigating agency, such a provision has to be read into the Code. For, principle of Natural Justice – audi alteram partem – would have to be read into the Code. It is tried to state that opportunity of hearing means effective and substantial hearing. Truncated evidence, half hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour, but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest. In case the relevant evidence in favour of the accused is not supplied, we would be creating “Kangaroo Courts” and weaving an illusion of justice. Such Courts and such illusions are an anathema to the judicial sense of fair play.

29. Moreover, the investigating agency and the prosecution both represent the State. Every action of the State is legally required “to be fair, just and reasonable”. In case, the investigating agency and the prosecution withhold any evidence in favour of the accused from the accused, they are not being fair, just and reasonable with the accused. Therefore, their action would be in violation of Article 14 of the Constitution of India. Article 21 of the Constitution of India also requires that the procedure established by law should be fair and reasonable. A procedure which permits the withholding of evidence which is in favour of the accused from the Court and from the accused, cannot be termed as “fair and reasonable”. Thus, such a procedure would be in violation of Article 21 of the Constitution of India. Therefore, Section 172(3) would have to be interpreted in such a way as to make it commensurative with the Constitutional spirit.

30. Furthermore, in every judicial proceeding the parties are expected to come with clean hands. By withholding the evidence without any legal justification, the prosecution would be hiding vital facts from the Court. It would, thus, come to the Court with unclean hands. The prosecution is expected to reveal the whole truth and nothing but the truth to the Court. Neither the investigating agency, nor the prosecution can be permitted to keep the Court in the dark. After all, half-baked truths are unpalatable to the judicial taste. ”

In am in full agreement with the views expressed by the learned Judge of this Court in case of Ramesh Wamanrao Babhulkar (supra), and the learned Single Judge of Rajasthan High Court, in case of Dhananjay Kumar Singh (supra). It is well settled principle of law, that the prosecution cannot convert itself into persecution. The fundamental right guarantied under Article 21 of the Constitution of India would recognize the right of an accused for fair trial. If the prosecution is permitted to withhold statements, only on the ground that they do not support the prosecution case, then the very concept of fair trial would be jeopardized. I am unable to persuade myself to agree with the view taken by the learned Single Judge of this Court in case of Ashok Ananda Hange (supra). The learned Judge has not taken into consideration the effect of Sections 207 and 233 of Cr.P.C. It is a cardinal principle of interpretation, that a single Section of a statute cannot be read in isolation but various Sections are to be construed harmoniously. Secondly, the learned Judge in this case does not notice the earlier view taken by this Court in case of Ramesh Wamanrao Babhulkar (supra). In that view of the matter, I find that the accused was entitled to statement of the witnesses, as prayed for.

12. There is another angle from which the present matter needs to be looked into. Section 173(5)(b), so also, Section 207(iii) of Cr.P.C. refer to the statements of persons to whom the prosecution proposes to examine as its witnesses. From the record, it can be seen that the aforesaid four persons were listed as prosecution witnesses initially. It is thus clear that the prosecution has initially proposed to examine them. However, the said statements were not filed in the Court along with the charge sheet only because they did not support the prosecution case. I am of the view that from the plain reading of Section 173(5)(b) and Section 207(iii) of Cr.P.C., it is the duty of the Investigating Officer to forward copies of statement of all such persons to whom the prosecution proposes to examine. In the present case, the names of the aforesaid persons were mentioned in the list of witnesses. As I have already discussed herein above, the said statements could not be withheld only on the ground that they would have strengthened the defence of the accused persons. The prosecution is not supposed to be interested in ensuring conviction of the accused in any circumstance. What is expected, is to assist the court in unearthing the truth.

13. Then the question comes as to what is the scope of Section 233 of Cr.P.C. A bare perusal of Sub-section 3 of Section 233 would reveal that when accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. It can thus be clearly seen that when an accused exercises his right under Sub-section 3 of Section 233 for compelling the attendance of any witness or production of any document, the learned Magistrate can refuse the said request only on three grounds : (i) vexation, (ii) delay, and (iii) defeating the ends of justice. Moreover, the Magistrate is required to record his reasons for refusing the request. A bare perusal of the said Section would reveal that except those three grounds, the request cannot be turned down on any other ground.

14. A perusal of the impugned order would reveal that the learned Magistrate has not referred to any of the three grounds as contemplated under Section 233 of Cr.P.C., while refusing request of the applicants. The request is rejected only on the statement made on behalf of the prosecution, that their names are not mentioned in the charge sheet. In that view of the matter, I find that the impugned order is unsustainable in law, on this ground also.

15. In the result, the Criminal Application is allowed and the rule is made absolute in terms of prayer clause “b”.

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