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How to appreciate Evidence of a prosecution witness whose statement is not recorded by the Police?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.

TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939

CRL.A.No. 359 of 2017

AGAINST THE ORDER IN CRL.M.P. NO. 69/2017 IN S.C. NO. 2/2011/NIA dated 27.3.2017

APPELLANT/PETITIONER/1ST ACCUSED:

P.A SHADULY @ HARIS,
S/O.ABDUL KARIM, PEEDIAKKAL HOUSE, NADAKKAL,
ERATTUPETTA,
KOTTAYAM (CUSTODY)

BY ADVS.SRI.V.T.RAGHUNATH
SMT.C.V.RAJALAKSHMI

RESPONDENT/RESPONDENT/COMPLAINANT:

STATE,
REP. BY SUPERINTENDENT OF NIA KOCHI, THROUGH THE SPL. PP FOR NIA, HIGH COURT OF KERALA
R BY SRI.M.AJAY, SPL. P.P FOR NIA

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C:R:

C.K. ABDUL REHIM & SHIRCY V.,JJ.

Crl. A. No. 359 of 2017

Dated this the 11th day of April , 2017

JUDGMENT
Shircy V., J.

An interesting question is mooted in this appeal by the 1st accused in S.C. No. 2/2011 on the files of the Special Court II for Trial of NIA Cases, Kerala, Ernakulam. The 1st accused/appellant is facing trial along with the other accused for having committed offences punishable under Sections 120B, 124A, 153A of the Indian Penal Code, Sections 25 and 27 of the Arms Act and Sections 10 and 13 of the Unlawful Activities Prevention Act (UAP) Act.

2. In the instant case the prosecution has cited 121 charge witnesses before the NIA Court. Out of the same, only 24 witnesses have been examined. At this stage this appellant has filed an application opposing the examination of 38 witnesses ie; CWs. 43, 48 to 50, 52, 53, 68 to 78, 87 to 98 and 113 to 121, by the prosecution, on the ground that the prosecution has not recorded their statements as provided under Sub-Section 3 of Section 161 of the Code of Criminal Procedure (for brevity, ”Cr.P.C”). The learned counsel for the appellant has contended that it is mandatory to record the statements of the witnesses and the examination of the witnesses before court without recording their statements under Section 161 (3) of Cr. P.C would cause prejudice to the appellant. Hence he filed application opposing their examination before the court .

3. Learned Public Prosecutor for NIA had vehemently opposed the application and contended that it is not mandatory to record statements of witnesses, under Section 161(3) of Cr. P.C. and hence the examination of those witness before the court will not cause any prejudice to the appellant .

4. The Special Court for NIA cases upheld the contention of the learned Public Prosecutor and allowed the prosecution to examine the witnesses by dismissing the application. Hence the appeal.

5. We heard Sri.V.T.Reghunath, learned counsel for the appellant and Sri.M. Ajay, learned Public Prosecutor for NIA Cases .

6. It is submitted by learned counsel for the appellant that the examination of witnesses by the prosecution without their statements recorded under 161(3) Cr.P.C., will cause prejudice to the appellant. The learned counsel has further submitted that, when Section 173(5) (b) and 161(3) is analyzed along with Section 207 of Cr.P.C. it is clear that, without the statement recorded under S.161 Cr.P.C, a witness cannot be examined before the court by the prosecution as it will cause injustice to the accused. To fortify his argument he relied on the decision of this court in Joseph Vs State of Kerala (2010( 2) KLT 918) where it was held that the statements recorded under Section 161 Cr.P.C. of all the persons whom prosecution proposes to examine as its witnesses should be produced in court and copies supplied to accused. Per contra, the learned Public Prosecutor submitted that it is not mandatory to record statements of all the witnesses interrogated by the police officer under Section 161(3) Cr. P. C. It is further submitted by the learned Public Prosecutor that all those witnesses cited by the prosecution are official witnesses and their examination without S.161 Cr.P.C statements will not cause any prejudice to the appellant as contended and the prosecution is justified in examining those witnesses before the court in support of the prosecution case.

7. In order to appreciate the rival contentions, it will be worth to refer the provisions of the Cr.P.C., which are relevant for the purpose of this case. Chapter X11 of the Code of Criminal Procedure deals with information to the police regarding a crime and the powers of police to investigate the crime. Section 161 of Cr.P.C. is extracted here under :

Section 161 (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.

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(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.

Provided that statement made under this sub-section may also be recorded by audio-video electronic means.

[xxxxxxxxxxxxx] Section 170 Cr.P. C requires the officer in-charge of a police station to send an accused to a Magistrate when evidence is sufficient.

Section 170 (1) reads as follows: If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. (2) xxxxxxx xxxxxxxxxxxxxxxxx (3) xxxxxxxxxxxxxxxxxxxxxxx (4) xxxxxxxxxxxxxxxxxxxxxxxx Section 173 deals with the report of police officer on completion of investigation . The relevant portion is extracted as follows :

173 (1) Every investigation under this Chapter shall be completed without unnecessary delay. [(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating–
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under Section 170.
(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under Sections 376, 376A, 376B, 376C, [376D or Section 376E of the Indian Penal Code].
(ii)xxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxx.
(4) xxxxxxxxxxxxxxx.
(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.
(6) xxxxxxxxxxxxxxxxxxxxxx (7) xxxxxxxxxxxxxxxxxxxxxxx (8) xxxxxxxxxxxxxxxxxxxxxxx Section 207 deals wth the supply of copy of police report and other documents to the accused.

S.207. 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.

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8. In Joseph’s case (supra), this court while dealing with the question whether accused are entitled to get copies of statements recorded under Section 161 Cr.P.C of all persons whom prosecution proposes to examine had observed that, the accused is entitled to get copies of the statements of the witnesses recorded by the investigating officer.

9. The situation in Joseph’s case (supra) is entirely different from the case which is at hand. The decision refers to a case where the statements were recorded by the investigating officer but, the copies were not furnished to the accused.

10. A reading of Section 161 Cr.P.C. would show that the investigating officer making the investigation under Chapter X11 may examine any person acquainted with the facts of the case. As per Sub-Section (3) of Section 161 Cr.P.C, a police officer ‘may’ reduce into writing any statement made by a witness to him during the course of his examination, and that ”if he does so” shall make a separate and true record of the statement of such person whose statement he records. S.173(5)(b) provides that the statement recorded under S.161 Cr.P.C. of all the persons whom the prosecution proposes to examine as witnesses shall be forwarded to the Magistrate along with the Final Report. It only indicates that, if the investigating officer records the statement of any witness, then that statement has to be forwarded to the Magistrate along with the Final Report. (emphasis supplied). A reading of Section 161 Cr.PC. would not show that, it is mandatory to record the statements made by all the witnesses to the police officer, during the investigation. The words employed in Sub- Section(3) of 161 Cr.P.C that, “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”, makes it explicitly clear that it is not mandatory on the investigating officer to record the statement of all the witnesses. A reading of the provision would show that the legislature had deliberately used the word ”may” in the first limb and ”shall” in the second limb of Sub-Section (3) of Section 161 Cr.P.C to give the investigating officer a discretion either to record or not to record the statement of any witness whom he questions under this section and proposes to examine as a witness. But a reading of Sections 161, 173 (5) and Section 207 Cr.P.C. would reveal that if the statement of any witness is recorded under S.161(3) Cr.P.C by the investigating officer during questioning, it shall be forwarded to the Magistrate and a copy of the statements shall be served to the accused.

11. The Supreme Court in Central Bureau of Investigation (CBI) v. R.S.Pai [2002(5) SCC 82) held that the word ‘shall’ used in Sub – Section(5) of 173 Cr.P.C. cannot be interpreted as mandatory, but as directory. While dealing with the analogous provision under Section 173 (4) of the Code of Criminal Procedure, 1898, the Hon’ble Supreme Court in Narayana Rao v. State of A.P. [AIR 1957 SC 737] observed that the word ‘shall’ occurring in sub-section(4) of Section 173 and sub-section (3) of Section 207-A is not mandatory, but only directory.

12. In Best Bakery’s case (Zahira Habibulla H. Sheikh v. State of Gujarath.( AIR 2004 SC 3114) the Apex court held as follows:

“Sub-section (1) of Section 161 of the Code provides that the competent police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Requirement is the examination by the concerned police officer. Sub-section (3) is relevant, and it requires the police officer to 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. Statement made by a witness to the police officer during investigation may be reduced to writing.

It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the Section is a truthful disclosure by the person who is examined”. (emphasis supplied)

13. In Sanjay Vasant Kadam v. State of Maharashtra (2016 KHC 2880), the Bombay High Court, relying on the decision in Best Bakery’s case (supra), held that “A plain reading of the sub-section indicates that the police officer is not bound to reduce the statement into writing, and failure to record the statement in writing would not render the testimony of such witness inadmissible, though it might finally affect the probative value of the evidence of the witness.”

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14. In Babu v. State of Kerala [2014 (1)KLT SN 25 (C. No. 33)] this Court held that, if prejudice is caused due to non supply of statement recorded under section 161 CrPC to the accused, the accused can point out the same at the appropriate time. But it will not show that the investigating officer is duty bound to record the statement into writing under S.161 Cr.P.C. and only the witness whose statements have been recorded can be permitted to be examined as witnesses in the court.

15. Of-course, Section 231 Cr.P.C. provides the prosecution to lay before the court all material evidence available to it for unfolding its case. In Rajalakshmi’s v. State of Kerala ( 2007 (3) KLT 347 ) it has been held by this court that if the prosecution is relying on documents which have not been seized by the police in the course of investigation and even when the copies of the same have not been furnished under Section 173(5) Cr.P.C., the prosecution is justified in relying on those documents as the expression ”shall” in Section 173(5) Cr.P.C can be reckoned only as directory.

16. In the present case, according to the prosecution, all those 38 witnesses have discharged certain official duties and the prosecution is relying on their evidence as official witnesses. So definitely there may be certain documents pertaining to the duties discharged by them in their official capacity. The learned counsel for the appellant has no case that he has not received the documents relied on by the prosecution. In fact, Section 161 Cr.P.C will not make any distinction, whether the witness is an ordinary witness or an official witness. It is also significant to note that statements recorded under the provisions of Section 161 Cr.P.C is not admissible in evidence, except for the limited purpose as provided in section 157 of the Evidence Act. Section 145 of Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of his previous statement. It is the duty of the court to sift the chaff from the grain and to find out the truth. But for the same it is not mandatory to have a recorded previous statement of the witnesses who were examined before the court.

17. It appears that the learned counsel for the appellant is entertaining an apprehension regarding the prejudice which may likely to be caused to the appellant if the investigating officer has not recorded the statements of the witnesses questioned. In such case, the previous statements of the witnesses will not be available and veracity of the witnesses cannot be tested with reference to their previous statements, is the contention. If that be so, the witnesses examined under Section 311 Cr.P.C and the witnesses examined as defence witnesses also suffer the very same infirmity. Law never envisages such an eventuality. The court has to appreciate the evidence of witnesses by taking it as a whole and conclude whether the evidence rendered by the witness is trustworthy or not.

18. The upshot of the above discussion is that under Section 161(3) Cr.P.C it is not obligatory on the police officer to record the statement of all the witnesses examined by him during the course of investigation. But if he exercises his discretion of reducing the statements into writing and the prosecution purposes to examine that witness in court, the accused it entitled to get the copy of the statement and prosecution is bound to furnish it to the accused. The failure to comply with the requirements of section 161(3) may affect the credibility to be attached to the evidence of the witnesses. But it does not render the evidence as inadmissible and it will not destroy the fabric of the prosecution case. The legitimate object of the prosecution is not to secure a conviction, but to see that justice is done in a proper manner. Doubtless, the probative value of the evidence tendered by such witnesses is left open, which could be challenged by the appellant at the appropriate time and before the appropriate forum in accordance with law.

As we find no legal or valid ground to interfere with the order under challenge, the appeal is hereby dismissed .

Sd/-

C.K. ABDUL REHIM JUDGE Sd/-

SHIRCY V.

JUDGE

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