HIGH COURT OF JUDICATURE AT ALLAHABAD
Criminal Misc. Writ Petition No. 3567 of 2012.
Raju …… Appellant.
State of U.P. & others ….. Respondents.
Hon’ble Dharnidhar Jha, J.
Hon’ble Ramesh Sinha, J.
We had by our order dated 3.4.2012 directed the petition to be listed before us for deciding the issue as to whether an accused or a victim of an offence was entitled to a copy of the statement of the victim recorded under Section 164, Cr.P.C. by a judicial Magistrate, if an application is duly made and the court fee which is required for obtaining such a copy of such statement is paid by the desirous person.
It so happened that while hearing this petition, we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”
We further went on to pass the following order:-
“We require the District and Sessions Judge, Bareilly also to furnish a report as to under what circumstances the copy, which was applied for of the above noted document, was refused to be supplied to the present petitioner. In the meantime, we wish that the petitioner had filed the rejected copy of the application for copy on the present record.”
In the light of the above directions issued to the District and Session Judge, Bareilly on 29.3.2012, the Registrar General of the Court had received a communication from the District and Session Judge, Bareilly vide his memo No. 541/XV dated 3rd April, 2012 in which the learned Judge was referring to Rule 263 of the General Rules (Civil) of the Court to inform us that there was prohibition on supplying the statement of a witness recorded under Section 161, Cr.P.C. or any other part of evidence collected by the Investigating Officer prior to reaching the stage of filing the charge-sheet and as such the accused can never ask for a copy or any part of the case dairy at any stage of the investigation. What the learned Judge further attempted to impress upon us was that the above Rule was created on the basis of a judicial pronouncement in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh and others Vs. State of U.P.
During the course of present hearing, learned counsel appearing on behalf of the petitioner produced before us yet another judgment rendered by this Court long back in 1932 which is reported in A.I.R. 1932 Allahabad 327, Bashiruddin and another Versus Emperor in which the Court was deciding that the statement under Section 164, Cr.P.C. was a public record and that was bound to be supplied to the accused on admissible cost if he had applied for it. In fact for issuing the above direction, the learned Judge supplied the following reasons:-
“Statements recorded under S. 164, Criminal P.C. are public documents, being the acts of a Judicial Officer done under the provisions of the Criminal Procedure Code, and the public servant in whose custody those documents were, was bound to issue copies thereof. An accused is undoubtedly entitled to inspect statements of prosecution witnesses recorded under S. 164, Criminal P.C. Such statements can be used by the prosecution for the purpose of corroborating the witnesses. They can likewise be used by the defence for the purpose of contradicting such witnesses. S. 164, Criminal P.C. clearly provides that statements recorded under that section shall be forwarded to the Magistrate by whom the case is to be enquired into or tried. It is difficult to appreciate the remark of the learned City Magistrate that the statements in question were not on the record. If they were not till then before him he should have forthwith sent for them, and if they had not been previously forwarded to him they should have been before him without any further delay.
Apart from this aspect of the case, the Magistrate trying the case has to protect the interests of the prosecution and the defence alike; even if the accused were not entitled as of right to inspect such statements, the Magistrate should have had no objection to exercising his discretion in favour of the accused in a matter of that kind. A Magistrate is expected to afford all facilities to the accused not only when he is compelled by law to do so, but also when he has a discretion in the matter and the ends of justice require that the accused should be apprised of what certain prosecution witnesses had previously stated in proceedings under S. 164, Criminal P.C. I am clearly of opinion that the learned Magistrate should have directed copies of the statements under S. 164 to be given to the accused on payment by them of the usual fees and in any case, should have allowed the advocate for the defence to inspect those statements.”
Following the said reason a Division Bench of this Court has rendered yet another judgment in the case of Shankar Lal and others Versus The State reported in A.I.R. 1954 Allahabad 779 (Vol.41, C.N. 308). In Shankar Lal (Supra) the question which is presently being considered by us was not directly in issue. The issue was of non supply of copies of statements of witnesses, whom the prosecution relied for proof of the charges. But for rendering the decision the Division Bench referred to Bashiruddin (Supra).
We had the privilege of perusing the judgment of another Division Bench of the Court in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh & others Versus State of U.P. & others which is the foundation of Rule 263 of the General Rules (Civil) and we are of the opinion that the judgment in Mukesh (Supra) was on a different issue. The accused had sought the copy of the case diary as the judicial Magistrate had issued process under Section 82 Cr.P.C. on application of police. That petition was dismissed by the Magistrate. The accused filed the writ petition urging that the order rejecting his application for copy of case diary was violative of Articles 21 and 22(1) of the Constitution of India and, as such, prayer (ii) in that Writ Petition was as under :-
“Issue a writ, order or direction in the nature of mandamus directing the respondents to provide copy of the case diary and other proceedings which relate to the petitioners so that they may be able to defend their cases.”
In our opinion, the judgment of the Division Bench in the case of Mukesh (Supra) could not be applied to decide the present issue framed by us.
We are of the opinion that the the statement of an accused or victim or a witness which is to be recorded under Section 164 Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of witnesses recorded under Section 161 Cr.P.C. The reason is that there is a full fledged provision under Section 164 Cr.P.C. authorizing the recording of such a statement by a judicial Magistrate. The practise and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other judicial Magistrate being deputed for recording the statement under Section 164 Cr.P.C., the witness along with the judicial record is transmitted to the deputed judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order-sheet of the same record and transmits the record along with the recorded statement under Section 164 Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164 Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164 Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case dairy. Thus, the recorded statement under Section 164 Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. It could never be put at par with a statement under Section 161 Cr.P.C. and as such it could never be said to be a part of case dairy.
On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164, Cr.P.C. had regularly been performed as is envisages by Section 114 of the Indian Evidence Act. In addition to that, we are of the opinion that the recorded statement being the record indicating the performance of the official and judicial functions or acts of a Judge under the prevailing provisions of the law of the land could be a document properly covered by Section 35 of the Indian Evidence Act and, as such, assumes the character of a public record which is covered by Section 72 of the Evidence Act.
On these terms, we are of the view that any application, if made, by any concerned person to obtain a copy of the statement under Section 164 Cr.P.C., the same could never be denied to him if he is ready to pay the costs admissible under Rules. We are further of the view that this issue was properly considered by the learned Single Judge of the Court in the case of Bashiruddin (Supra) and this was not considered by the Hon’ble Judges of the Division Bench in case of Mukesh (Supra) and as such that decision could not be creating any obstruction in providing a copy of the statement to any person entitled thereto. We as such, are of the opinion that Rule 263 of the General Rules (Civil) of the Court was not relevant and cannot be used for denying the application for copies.
We have perused another document which has been referred to by the District and Session Judge in his letter as Circular Letter No. 29 of 2005. That letter is also not relevant for the present purpose as the very heading of that letter indicates, and rightly, that no accused could have the copy of the case dairy.
For the forgoing reasons, what we find is that no person, who is entitled to a copy of the statement under Section 164 Cr.P.C., could be denied the required copy of the said document, if he is ready to pay the cost admissible under Rules of the Court. The issue framed by us is, accordingly, answered.
Considering the importance of our observations and directions, we are of the view that the copy of this judgment may be circulated among the District Judges and Officers-in-Charge of copying department of different judgeships and with that in our view, we direct the laying down of a copy of the present judgment before the Hon’ble the Chief Justice.
Hon’ble Dharnidhar Jha, J
Hon’ble Ramesh Sinha, J.
For orders, see order of date
passed on separate sheets.
Dated :- 08.05.2012