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Suryamani Tarai and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 90 of 1967
Judge
Reported inAIR1967Ori189; 33(1967)CLT576; 1967CriLJ1552
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 94, 161(3), 162(1) and 173(4); Evidence Act, 1872 - Sections 123 and 124
AppellantSuryamani Tarai and ors.
RespondentState of Orissa
Appellant AdvocateA.K. Das and ;D. Mohanty (2), Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionPetition allowed
Cases ReferredGurbachan v. State. On
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........procedure code. under section 174 (1) (a), the officer in charge of a police-station or some other police-officer empowered by the state government in that behalf, on receiving information that a person has committed suicide, shall immediately give intimation thereof to the magistrate empowered to hold inquests, and unless otherwise directed by any rule prescribed by the state government, or by any general or special order of the district or sub-divisional magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death by giving certain details as specified.sub-section (3) of section 174 prescribes that.....
Judgment:
ORDER

G.K. Misra, J.

1. The three petitioners with another Rama Tarai are under trial under Sections 384/34 and 447/34, Indian Penal Code, before the Assistant Sessions Judge, Jajpur, in a sessions case. Prosecution case is that accused Rama Tarai, father-in-law of the deceased, lodged an F. I. R. (Ex. 1) on 15-11-65 in Dharmashala Police Station that his daughter-in-law committed suicide. An unnatural death ease was registered and inquired into by Assistant Sub-Inspector of Police, R. N. Mohapatra (P.W. 6). He held inquest and sent the dead body for post mortem examination He came to the conclusion that it was not a case of suicide and so he drew up F. I. R. (Ex. 9) on his own information that the petitioners committed various offences.

In course of trial P. W. 2 (a child witness) and P. W. 5 (mother of P W. 2) were examined as eye-witnesses before P W 6 was examined on 20-1-67. In course of cross-examination of P. W 6 it transpired that he had recorded the statements of P. Ws. 2 and 5 during investigation of the information regarding suicide. The petitioners prayed that P. Ws 2 and 5 should be recalled for further cross-examination in the light of those statements. They filed an application on 30-1-67 requesting that the prosecution should be directed to supply copies of the statements made by P Ws. 2 and 5 before P. W. 6 during investigation of the case for suicide, or, in the alternative, to file those statements in Court to enable them to take certified copies of those statements under Section 94, Cr. P C. This application was rejected by the learned Assistant Sessions Judge by an order dated 1-2-67. Against this order tne criminal revision has been filed.

2. Two questions arise for consideration.

(i) Are the petitioners entitled to copies of the statements of P. Ws. 2 and 5 recorded under Section 181 (8), Cr. P. C. free of costs under Section 178 (4), Cr. P.C. ?

(ii) If they are not entitled to get those statements free of costs, are they entitled to take certified copies thereof on payment of costs, under Section 94, Cr. P. C.P

3. To answer the first question, it is necessary to refer to the relevant provisions of the Criminal Procedure Code. Under Section 174 (1) (a), the officer in charge of a police-station or some other police-officer empowered by the State Government in that behalf, on receiving information that a person has committed suicide, shall immediately give intimation thereof to the Magistrate empowered to hold inquests, and unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-Divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death by giving certain details as specified.

Sub-section (3) of Section 174 prescribes that when there is any doubt regarding the whose of death, or when for any other reason the police-officer considers it expedient so to do, he shall forward the body for post mortem examination.

In accordance with the above provisions, P. W. 6 investigated into the information of commission of suicide and came to the conclusion that it was not a case of suicide but was one of homicide. He accordingly drew up F. I R. (Ex. 9).

4. Chapter XIV of the Criminal Procedure Code contains Section 154 to Section 176 and deals with information to the police and their powers to investigate.

Section 101(1) prescribes that any police-officer making an investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

Under Sub-section (3), the police-officer may reduce in 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 record of the statement, of each such person whose statement he records.

Thus the statements of P. Ws. 2 and 5 were recorded by P. W 6 under Section 161(3) in the course of the investigation under Section 174 of the information of suicide.

5. Section 173 (4) specifies the papers to be furnished to the accused free of costs. The sub-section runs thus -

After forwarding a report under this sec-tion, the officer in charge of the police-station shall, 'before the commencement of the inquiry or trial,' furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

It is to be noted that the statements of P. Ws. 2 and 5 were recorded under Section 161 (3) twice--once during investigation of the case for suicide and again in course of investigation of the offences referred to in Ex. 9 for some of which the petitioners are under trial now. The latter statements have been furnished to the petitioners free of costs as enjoined upon under Section 173 (4). The controversy centres round the question whether their statements recorded under Section 161 (3) in the course of investigation of the case for suicide should be furnished to the petitioners free of costs under Section 173 (4).

The underlined (here in ' ' ) expression in Section 173 (4) indicates that the papers to be furnished to the accused free of cost are to be supplied before the commencement of the inquiry or trial. The idea is that the accused would use those papers during trial and to do so he must know the contents thereof before the inquiry or the trial begins.

6. In what manner the statement under Section 161(3) can be utilised by the accused during inquiry or trial is prescribed in Section 162. Section 162(1), so far as relevant runs thus-

No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into 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:'

The underlined (here in ' ') expression makes it plainly clear that the statement recorded under Section 161 (3) can be used in the specified manner not in every inquiry or trial but only in the inquiry or trial of the offence during the investigation of which the statement had been recorded.

The underlined (here in ') expressionsin Section 162(1) and Section 173(4) are to be read together. Thus read, they lead to the irresistibleconclusion that if ultimately there is an inquiryor trial of the offence in respect of which theinvestigation had been made, then the statements recorded under Section 161 (3) of allthe persons whom the prosecution proposesto examine as its witnesses would be furnished to the accused free of cost before the inquiry or trial begins.

7. Judged by the aforesaid test, the petitioners are not entitled to copies of the statements in question of P. Ws. 2 and 5 free of cost under Section 173 (4) as they are not being tried in respect of any offence referred to Ex. 1. In fact Ex. 1, upon which the earlier investigation was made by P. W. 6, did not even relate to an offence but related to an information that the deceased had committed suicide.

8. The aforesaid conclusion, reached on an elementary analysis of the relevant sections of the Criminal Procedure Code, is well founded on authorities which need not be discussed in detail--see AIR 1957 Raj 185, Jhumarlal v. State, AIR 1954 SC 700, Purusottam v. State and AIR 1957 SC 823, Gurbachan v. State. On this point the learned Assistant Sessions Judge came to the correct conclusion.

9. The learned Assistant Sessions Judge, however, holds that the petitioners are not entitled to certified copies of those statements on payment of costs and that the statements are privileged. This view is not correct.

10. Sections 94 (1) and (3) run thus-

(1) Whenever any Court, or, in any place beyond the limits of the towns of Calcutta and Bombay, any officer in charge of a Police-Station, considers that the production of any document or other thing is necessary or desirable for the purposes or any investigation, inquiry, trial or other proceeding under this Code by or before such Court of Officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(3) Nothing in this section shall be deemed to affect the Indian Evidence Act, 1872, Sections 123 and 124. ..........

These two sections of the Evidence Act deal with as to affairs of the State and official communications. It is conceded by the learned Additional Standing Counsel that there is no question of privilege involved in granting certified copies of the statements of P. Ws. 2 and 5 in the suicide case. The learned Assistant Sessions Judge got himself completely confused in holding that these statements are privileged under Sections 123 and 124, Evidence Act.

Though the investigation in the suicide case and the investigation under Ex. 9 are not in one and the same proceeding, the fact remains that in the course of the earlier investigation P. W. 6 came to hold that various offences were committed. The facts and the circumstances under the two cases transpiring during both the investigations are over the identical matter as to how the death of the deceased was caused. The statements of P. Ws. 2 and 5 recorded under Section 161 (3) could not be produced here by the learned Additional Standing Counsel due to shortage of time after he was directed to produce them.

There may be some materials in the earlier statements which might contradict the subsequent statements made in Court. There is therefore no reason why certified copies of those statements would not be granted on payment of costs. Section 94 applies in terms. The learned Assistant Sessions Judge should have directed the prosecution to make those statements available in Court to enable the petitioners to take certified copies thereof for use, if any, during cross-examination of P. Ws. 2 and 5. The view of the learned Assistant Sessions Judge that these statements are privileged and certified copies thereof cannot be granted on payment of costs cannot be upheld.

11. In the result, the impugned order isset aside and the original revision is allowed.The learned Assistant Sessions Judge is directed to ask the prosecution to make the statements of P. Ws. 2 and 5 recorded under Section 161 (3) in the course of investigation ofthe case for suicide available in Court and toallow the petitioners to take certified copiesthereof at their own expenses, if they sochoose. P. Ws. 2, 5 and 6 would be recalledto enable the petitioners to cross-examine themin the light of the aforesaid statements. Thesessions case which has been stayed shouldbe disposed of without further delay.


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