N.G. Shelat, J.
1. to 8. xx xx xx
9. With regard to the evidence of Gulabrai, it was urged by Mr. Mankad, the learned advocate appearing for respondent No. 1, that his statement recorded by the investigating officer in the case was not supplied to the accused as is required under Section 173 Sub-section (4) of the Criminal Procedure Code and that consequently the probative value of his evidence would be materially affected. Sub-section (4) of Section 173 of the Criminal Procedure Code provides as under.-
After forwarding a report under this Section, 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 for-worded under Sub-section (1) and of the first information report recorded under Section 184 and of all other documents or relevant extract 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.' The provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him in view of his previous statement made before the investigating officer. The Chapter XVIII of the Criminal Procedure Code relates to the procedure to be followed by the Magistrate in inquiries preparatory to commitment, in respect of proceedings instituted on a police report received by him under Section 173 of the Criminal Procedure Code. Sub-section (3) of Section 207A of the Criminal Procedure Code then provides that -
'At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and If he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.'
A similar provision is contained in Section 251A of the Criminal Procedure Code, laying down procedure to be adopted in the trial of warrant cases instituted on a police report, by the Magistrate. If appears from these provisions that the obligation is cast on the Magistrate to satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he shall cause the same to be so furnished In light of these provisions the grievance of the accused as urged by Mr. K. N. Mankad for the respondent No. 1, has to be examined. Now it is not suggested, much less said that the committing Magistrate had not made inquiry from the accused and not satisfied in that respect. It has to be taken that the procedure as required in law was followed by him and he had satisfied himself that the accused had recited all such statements as contemplated under Section 173(4) read with Section 207A, Sub-section (3) of the Criminal Procedure Code The charge-sheet submitted by the police in the case described the name of the witness Gulabrai as one of the witnesses to be examined for prosecution in the case. When that was so, and if the accused had in fact not received the police statement of witness Gulabrai. it was necessary for the accused to move the committing Magistrate before committal of the accused to the Court of Sessions, that they have not received such a statement, and if they failed to do so then, they could have made a request to the learned Sessions Judge before or at the time when the trial began. It is not said that the witness was suggested to be dropped and that later on the prosecution thought of examining him in the case. The trial before the learned Additional Sessions Judge had commenced on 1-10-1963 and vet it was only when the evidence of Gulabrai came to be recorded on 4-10-1063 that the application Ex. 26 was given by the learned advocate appearing for all the accused stating inter alia that 'as the accused were not supplied with the copy of the statement of the prosecution witness Gulabrai, lie cannot be examined as a witness, and prayed that he should be discharged as in case he is examined, it will cause prejudice to their case'. After hearing the learned advocates, the learned Additional Sessions Judge has passed an order below that application as under:
'It is an admitted fact that the statement of P. C. Gulabrai is recorded. It is not supplied to the accused. This does not mean that the witness cannot be examined. At the most it is open for the accused to ask for the time to study his statement.'
He, therefore, rejected the application.
10. From this it appears that the statement of Gulabrai was recorded by the investigating officer, and that it was not supplied to the accused before the trial began. Before, however, we consider the effect in law, where a witness whose statement is recorded by the police during the investigation of the case and the same has not been supplied to the accused before the trial began, one thing is clear viz., whether the statement of a witness sought to bf examined is recorded or not, during the investigation of the case, it is not that such a witness cannot be examined. All that is necessary is to seek the permission of the Court and the Court would, in suitable cases, exercise its discretion in allowing the prosecution to examine the witness. There is no such bar contained in the provisions of Criminal Procedure Code, so us to require the Court to refuse to record any such evidence. In the present case, however, it appears that through mistake, statement of Gulabrai had remained to be supplied to the accused, and since no point was raised by the accused, it remained to be given to them even later, as the prosecution would obviously be under an impression that it must have been given to them along with statements etc. of other witnesses. It was up to the accused, no sooner they knew that Gulabrai's name appears as a witness to be examined, in view of their having admitted before to have received all papers, before the Committing Magistrate, to move the Court, and the Court would, no doubt, be required to see that the prosecution has supplied the same to the accused. If in spite of the Court's order for supplying the same, the prosecution were not to supply without any sufficient or justifiable reason, the Court would be entitled to consider the effect thereof while appreciating the evidence of such a witness in the case. All that Section 173(4) read with Section 207A, Sub-section (3) of the Criminal Procedure Code contemplates is that the Court shall cause the same to be so furnished and at any rate, non-supply of a statement does not render the evidence of such a witness inadmissible on record. The Court, in the present case, was prepared to accommodate and give time to the accused before Gulabrai's evidence was recorded, so that the accused may not suffer in properly cross-examining him. That opportunity was not availed of and it is too much now to say, that his evidence, after due cross-examination made by the learned advocate for the accused, suffers from its probative value and that on that ground he should not be believed There is no prejudice caused In the accused in any manner on that account, and we do not think that there is any justification to say that any prejudice to the accused was caused so as to say that the evidence of Gulabrai suffers from any infirmity on such a ground.
11. The first case relied upon by Mr. Mankad is State of Gujarat v. Champaklal Somabhai Soni 0065/1965 : AIR1965Guj246 In that case one Mr. Gohel, P. S. I., was sought to be examined by the prosecution. The learned Magistrate refused permission to the prosecution to examine him on the ground that his statement was not supplied to the accused as required by Section 178(4) of the Criminal Procedure Code. As against that order a revision application was made before the Sessions Judge of Broach who referred the matter to this Court. In that Criminal Reference it was found that since the statement of Mr. Gohel was not recorded under Sub-section (3) of Section 161 of the Criminal Procedure Code, no question could arise as to the effect of non-supply of any such statement, and it was then held that even the failure to comply with the provisions of Sub-section (4) of Section 173 of the Criminal Procedure Code cannot affect the mandatory character of Sub-section (7) of Section 251A which provides that 'the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution'. Thus, the evidence of such a witness was permissible to be recorded, and there it was observed that 'failure to comply with the provisions of Sub-section (4) of Section 173 may affect the value of evidence' This last part of the observation has been relied upon by Mr. Mankad to say that since the accused has not been supplied with the copy of the statement of Gulabrai who came to be examined as a witness by the prosecution, it would affect the value of his evidence. Now, so far as this case is concerned, it is obvious that no statement of Mr. Gohel was at all recorded and consequently there could not arise any question of affecting the value of his evidence. In fact that observation was obviously obiter as no such question had at all arisen to be decided. Nor do we find any discussion in relation thereto and it was just a passing observation.
12. Another case relied upon by him is one of K.R. Sharma v. State of Punjab AIR 1968 Pun.) 27. In that case the Punjab Government had directed an inquiry to be held Instead of prosecuting him in Court on the basis of investigation made by the police against the petitioner one Shri K.R. Sharma. In that inquiry, the petitioner moved the Inquiry Officer to make available to him copies of state meats made by persons during the investigation by police who were to be examined in that inquiry against him for offences under Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. The Inquiry Officer rejected his application and it was that way that the matter went up to the Punjab High Court under Article 226 of the Constitution of India. It was held that the proceedings were not of quasi-criminal nature and consequently the inquiry officer was not bound to see that the provisions of Section 173(4) of the Criminal Procedure Code were observed before he proceeds to record evidence in the Inquiry, and that if he refused to comply therewith that order was not liable to be set aside the observations of Sir John Beaumont in Pulukuri Kottaya v. Emperor, AIR 1947 PC 87 while discussing the provisions of the first proviso to Section 162(1), (this section has been amended in 1956 and has been numbered as Section 173 (4) of Criminal Procedure Code), were then relied upon to say that non-supply of previous statements of witnesses would violate principles of natural justice and to negative a fair trial Those observations run thus:
' 'The right given to an accused person by this section is a very valuable one and often provides important material for cross-examination of the prosecution witnesses. However slender the material for cross-examination may seem to be, it is difficult to gauge its possible effect. Minor inconsistencies in his several statements may not embarrass a truthful wit-ness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate breakdown of the whole of his evidence'.
In this very judgment the Privy Council has held that the contravention of this principle falls under Section 537, Criminal Procedure Code, and the trial should be held valid notwithstanding the breach of this section. 11 follows that before a trial can be held to be vitiated on this ground the accused must show that its non-observance has prejudiced him and it has resulted in failure of justice. According to the Privy Council, however grave the irregularity, it does not per se vitiate the trial.'
It was then held, that even if the nature of the inquiry were held to be a criminal or quasi-criminal, it cannot be vitiated, and it cannot render evidence inadmissible. The observations then proceed to say that the previous statement can be used to contradict a witness and to discredit him under Section 145 and Section 155(3) of the Indian Evidence Act and though it cannot be used as such evidence in the case, the non-supply of copy of the previous statement may seriously reduce and impair the value of the evidence of that witness. These observations are similarly obiter and proceed on the basis as it were that the statement was deliberately not given to the petitioner. That has been relied upon by Mr. Mankad to say that Gulabrai's testimony has no value in this case We do not think we can go so far as that as a general rule of law in absence of any such thing appearing in the provisions relating thereto either under Section 173(4) or under Section 207-A(3) of Criminal Procedure Code What effect should be given to non-supply of any such statement of a witness, depends upon certain factors. It has to be shown that his statement is recorded, and deliberately kept back and not given. If it has remained to be given through some mistake, no such effect can be given as urged by Mr. Mankad in the case, and before the evidence can be said to suffer from any infirmity on that ground, the accused must move the Court for enabling them to get the same from the prosecution and It is only thereafter that in spite of the direction or order of the Court to supply the same, it is not supplied, that the Court would be justified to say that the accused have been prejudiced by reason of not being able to meet the evidence of such a witness by proper cross-examination on the basis of such previous statement. In our opinion, the accused had an opportunity to get and the Court was inclined to even give time to the accused, and if in spite of that, they chose to cross-examine the witness, we do not think that the evidence of witness Gulabrai can be condemned or even reduced in ifs probative value on that ground. In our view, in the present case no prejudice is caused to the accused in any manner andunless that is shown, if is difficult to say thathis evidence is seriously impaired or reducedin its probative value. No such facts existedin that case relied upon and that decision cannot, therefore, help him in discarding Gulabrai'sevidence as such which cannot be consideredand acted upon or that its probative value isso impaired or reduced as urged by Mr. Mankad.
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