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Parashuram Detaram Shamdasani Vs. Hugh Golding Cocke - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 240 of 1941
Judge
Reported in(1941)43BOMLR961
AppellantParashuram Detaram Shamdasani
RespondentHugh Golding Cocke
Excerpt:
.....code (act v of 1898), sections 548, 554--copies of proceedings-right of party to inspect whole record--right to take copies of any part of such record---high court criminal circular no. 160 a--'papers exhibited in the proceedings,' interpretation of--indim evidence act (i of 1872), section 76.;there is a common law right of a person to take inspection of a document in which that person is interested, for the protection of such interest.;mutter v. eastern and midlands railway co. (1888) 38 ch. d. 92 and chandi charan dhar v. boistab charan dhar (1903) i.l.r. 31 cal. 284., followed.;except as controlled by any rule made by the high court under section 554 of the criminal procedure code, 1898, a magistrate or a judge of a subordinate court has a discretion to allow inspection of the..........is whether he has a right to such inspection.3. the application raises the general question of the right of inspection of the record of a criminal court subordinate to this court. reference has been made to section 76 of the indian evidence act, but that section does not really assist us on the point we have to determine. all that that section does is to give to a party, who has the right to inspect a public document, as defined in section 74, the right to demand a copy of it on certain terms. but the right conferred by that section is confined to persons who have the right to inspect a document, and the indian evidence act does not specify the persons who have a right to inspect public documents. there would seem to be in england a common law right of inspection of public documents by a.....
Judgment:

John Beaumont, C.J.

1. This is an application in revision against an order made by the learned Presidency Magistrate, Sixth Court, refusing the applicant leave to inspect the record in certain criminal proceedings in that Court.

2. It appears that the applicant lodged a complaint against the auditors of the Central Bank, and after the matter had proceeded for a considerable time, the applicant was absent from Court at one hearing, and the accused were discharged. The applicant now says that he wants to inspect the orders made by the Court in those proceedings, the depositions of witnesses, and the exhibits in the case in order to make up his mind whether he should lodge a fresh complaint; and the question is whether he has a right to such inspection.

3. The application raises the general question of the right of inspection of the record of a criminal Court subordinate to this Court. Reference has been made to Section 76 of the Indian Evidence Act, but that section does not really assist us on the point we have to determine. All that that section does is to give to a party, who has the right to inspect a public document, as defined in Section 74, the right to demand a copy of it on certain terms. But the right conferred by that section is confined to persons who have the right to inspect a document, and the Indian Evidence Act does not specify the persons who have a right to inspect public documents. There would seem to be in England a common law right of inspection of public documents by a person interested in the document, so far as may be necessary for the protection of such interest. The rule is stated in Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch. D. 92 in these terms (p. 106):--

When the right to inspect and take a copy is expressly conferred by statute, the limit of the right depends on the true construction of the statute. When the right to inspect and take a copy is not expressly conferred the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest. The common law right to inspect and take copies of public documents is limited by this principle, . . .

That passage was cited and followed in India in Chandi Charan Dhar v. Boistab Charan Dhar(1903) I.L.R. 31 Cal. 284.

4. Under the Criminal Procedure Code, Section 548 gives to any person affected by a judgment or order passed by a criminal Court the right to have a copy of the Judge's charge to the jury or of any order or deposition or other part of the record on the terms specified in the section. Then Section 554 gives a right to Chartered High Courts to make rules for the inspection of the records of subordinate Courts. For many years after Section 548 was passed, there were no rules of this Court relating to inspection, and I understand that the practice was for a Magistrate or Judge to give inspection of the record of his Court as he thought proper. I have no doubt that, except as controlled by any rule made by the High Court, a Magistrate or Judge of a subordinate Court has a discretion to allow inspection of the record of his Court, but such discretion must be exercised judicially. In exercising his discretion, a Magistrate or Judge would be bound to have regard to the terms of Section 548, and in my opinion it would be difficult, and generally improper, for him to refuse inspection of any document of which a party was entitled to a certified copy under that section. The right to a certified copy seems to me to presuppose a right of inspection, because a party cannot be expected to make up his mind whether he wants to have a copy of a document, if he is not entitled in the first place to read it, and see what it is about. To require a party to take certified copies of all documents on the record in order to determine of which documents he really requires a copy would seem to involve unnecessary expense and trouble. Therefore, I think prima facie under Section 548 a party would have an implied right to ask the presiding Magistrate or Judge to allow him inspection of the record referred to in the section.

5. But in 1934 this Court framed a rule under Section 554, which is Criminal Circular No. 160-A, and is in these terms:

(i) Subject at all times to the convenience of the Court and subject, to such regulations as the Presiding Officer of the Court may make in order to ensure the safety of the record, parties to a Criminal Proceeding when they are not represented and their pleaders or advocates when they are represented are entitled, on payment of the prescribed fees, to inspect, the papers exhibited in the said proceeding. In no case shall the original papers be removed from the office.

The expression 'papers exhibited in the proceeding' seems to me to be an unfortunate one. It is neither a technical expression, nor a popular one. If the phrase used had been 'exhibits', that would have been a technical expression, but it would have included many things which are not papers. Many articles are exhibited in criminal triala which are not papers, and it is difficult to see why a party interested should not be entitled to inspect an article exhibited. I think, probably the expression was intended to cover the whole record, but even if it be confined, as the opponents contend in this case, to papers which are exhibited in the evidence of witnesses, so as not to include copies of depositions or orders of the Court, I am of opinion that the rule is not exclusive. It does not deprive the Court of the right which it previously enjoyed of granting inspection of the whole record to a party properly entitled thereto; and in revision we are entitled to consider whether the learned Magistrate exercised his discretion on the right ground. He has not given any reason for holding that the applicant is not entitled to inspect the record in this case, and I do not myself see any ground on which the applicant can be refused such right. He is clearly entitled under Section 538, as a person affected by the order of the learned Magistrate discharging the accused, to require certified copies of the orders, depositions and other part of the record. It seems to me to be altogether unreasonable to insist that he must take certified copies of documents in order to determine whether he really wants such copies. The more rational course is to allow him to inspect the documents in order to make up his mind whether he wants to have certified copies or not.

6. I think, therefore, we must allow the application, and direct that the applicant may inspect, at such time and on such proper conditions as the Magistrate may direct, orders made in the proceedings by the Magistrate, depositions of witnesses and the exhibits in the case.


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