K. Bhaskaran, J.
1. The revision is by the State, and is directed against an order of the learned Additional Sessions Judge, Ernakulam made in Criminal M. P. 525 of 1973 in Sessions Case 30 of 1973. The respondents herein, who were the petitioners (accused) before the Sessions Court had, in and by the said Crl. Miscellaneous Petition, prayed that they might be given a copy of the statement recorded on 14-2-1973 from C.W. 2 Vis-wambharan by the Circle Inspector of Police, Shertallai, during the course of investigation. The objection of the State to the grant of the copy was on the ground that the prosecution did not propose to rely on that statement recorded by Circle Inspector, Shertallai, and therefore the accused were not entitled to it. The learned Additional Sessions Judge however, allowed the petition and directed the Public Prosecutor to make available the copy of statement to the accused before the trial commenced. It is the correctness of this order that is being challenged in the revision.
2. Sri K. R, Kurup, the learned State Prosecutor, argues that in terms of the provisions contained in Section 173(4), Cr.P.C. the accused is entitled, as a matter of right, only to the copies of those documents or extracts thereof on which the prosecution seeks to rely. In this case, according to the learned State Prosecutor, subsequent to the questioning of C.W. 2 done by the Circle Inspector of Shertallai, the investigation was taken over by the Crime Branch, and the Detective Inspector, Crime Branch, C.I.D., had questioned the very same witness on 20-2-1973, and it is that investigation made by the Detective Inspector that had culminated in the final report on which alone the prosecution sought to rely in the trial court. The argument therefore, is that it is only copies of those statements on which the prosecution seeks to rely, need be furnished to the accused under the mandatory provisions of Section 173(4), Cr. P. C.
3. 'Sri M. N. Sukumaran Nair, the learned Counsel for the accused-respondents, submits that the provisions contained in Section 173(4) make it abundantly clear that the accused are entitled to be furnished with copies of not only the documents or the relevant extracts thereof on which the prosecution seeks to rely, but also the copies of all the statements and confessions, if any, recorded under Section 164, and all statements recorded under Sub-Section (3) of Section 161. Cr.P.C. It is also pointed out that the accused, even before the amendment of the Code by Act XXVI of 1955, was entitled to get a copy of all the statements recorded during the course of the investigation, with the only difference that he had then to apply for and obtain them, whereas under the amended provisions it is the mandatory duty of the prosecution to furnish the copies of such documents and statements to the accused free of cost, and therefore, it is inconceivable that the prosecution could now afford to shirk that statutory obligation. Reliance is placed in this connection by the learned Counsel on the decision of the Supreme Court in Purshottam v. State of Kutch : AIR1954SC700 where Jagannadhadas, J. who delivered the judgment for the Bench, has observed as follows:
There can be no doubt that the right which the accused has got of obtaining copies of the statements made by witnesses during investigation is a very valuable right and that the wholesale refusal to grant the same will be a serious irregularity which would vitiate the entire trial as held by the Privy Council in 'Kotayya v. Emperor' AIR 1947 PC 67 at p. 69 : 48 Cri LJ 533.
4. The State Prosecutor brings to my notice the decision in Ramendra Singh v. Mohit Choudhary : AIR1969Cal535 where there is an observation as follows:
The Official Secrets Act provides for a special procedure of complaint and if it was upon a complaint by a person authorised under the Act, cognisance was taken under Section 190(1)(a) and not under Section 190(1)(b). The procedure for trial would, therefore, be under Section 252 of the Code of Criminal Procedure and not under Section 251-A. In respect of prosecution under Section 252 of the Code of Criminal Procedure there is no compulsory provision for giving copies of documents referred to under Section 173 and the opposite parties are not, therefore, entitled to copies as of right.' I do not think that the decision referred to has any application to the facts of the present case. As we note, the trial in the said case was one under Section 252 of the Code, which in terms does not require the prosecution to furnish to the accused copies of the documents mentioned in Section 173(4) whereas furnishing of such documents to the accused is mandatory under Section 251-A.
5. The argument of the learned State Prosecutor cannot be accepted for more reasons than one. The reasoning that the prosecution does not propose to rely on the statement of the C.W, 2 recorded on 14-2-1973 as mentioned in the remand report dated 16-2-1973 appears to proceed from a basically wrong presumption. For one thing, there is no question of the prosecution relying on statements recorded under Sub-Section (3) to Section 161, Cr.P.C. The limited uses of the statement recorded under Section 161 are Indicated in Section 162 of the Code. The prosecution is entitled to make use of such statements only for the purpose of contradicting the witnesses who made the statements, and that too with the permission of the court. There is therefore, no question of the prosecution exercising a sort of discretion as to rely or not to rely on a particular statement recorded under Section 161(3). as the prosecution is not entitled to rely on such statements at all as substantive evidence. Moreover, if this argument of the State Prosecutor is to be accepted, it would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or are not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish, which could never be the intention of the legislature. If there are embellishments or contradictions in the statements given by the very same witness on different occasions, the veracity and trustworthiness of the evidence of the witness have to be tested in cross-examination with the aid of such materials. To deny that would be to deny a just and fair trial to the accused.
6. The apprehension of the prosecution obviously is that the statements made by C.W. 2 on 14-2-1973 and 20-2-1973, when questioned by different persons, would, on material points, to some extent at least, be inconsistent with each other, and therefore inconvenient to it. It should not certainly be the concern of the prosecution in such circumstances to deviate from or circumvent the relevant provisions incorporated in the Code with a view to ensure that the accused gets every opportunity to meet the case brought against him. They are provisions based on certain statutory principles of criminal jurisprudence to which, as the guardian of law. the court is bound to adhere, in its true spirits, even where the prosecution is tempted to keep the accused out of access to some of the documents which for his fair trial he is entitled to have.
7. It has been submitted that the statement given by C.W. 2 on 20-2-1973 is substantially in conformity with the statement given under Section 164, Cr.P.C. on 9-3-1973 and therefore, the statement given to the Detective Inspector should be accepted for the purpose of the prosecution discarding the statement that was stated to have been given to the Circle Inspector of Shertallai on 14-2-1973. In fairness, and according to law, the copies of the statements recorded from the witness on 14-2-1973 and 20-2-1973 ought to be furnished to the accused, and, if the prosecution chooses to make use of his statement under Section 164, Cr. P. C, copy thereof also should be furnished to the accused so that he may be in a position to confront the witness with the previous statements made by him and which in turn may enable the court to discern the truth from various circumstances that may be available in the case.
8. Where the statements given by a witness on different occasions during the course of investigation are of conflicting nature on material points the position of the Public Prosecutor undoubtedly is not unenviable; even then he is expected to display a sense of detachment and fair-play without being unduly influenced by a desire to secure the conviction of the accused at any cost. By attempting to withhold from the accused the inconvenient portion of the statement of the witness the Public Prosecutor does not play his true role in assisting the court in correctly assessing the credibility of the witness or determining the degree of reliability of the oral evidence produced in the case. There may of course, rarely though, be cases in which the witness must have been substantially consistent in his statements, yet due to distorted or defective recording by some of the investigating officers, they may appear to be at variance from one another. Proved cases of dereliction of duties or deliberate distortion while recording statements of witnesses deserve to be dealt with by the State with a stern hand at the appropriate level; but the court cannot allow the prosecution to gain a premium on account of the lapses in the investigation of cases or penalise the accused for the failures of the prosecution.
For the reasons stated above, I find no reasons to interfere with the order that has been passed by the court below. The revision fails and is dismissed.