1. This is an application by the Public Prosecutor. Madras, to revise the order of the Town Sub Magistrate, City I, Coimbatore. The respondent and some others have been arrested in connection with counterfeiting currency notes and they have been remanded to custody. The investigation is not yet complete and the charge-sheet has not yet been filed. In the course of the investigation statements have been recorded under Section 164 Crl. P. C. The respondent applied for copies of these statements. The magistrate has directed copies of those statements to be granted to the respondent. Against this order directing the grant of copies to the respondent, the present revision has been filed by the Public Prosecutor.
The contention of the learned Public Prosecutor is that these copies are not to be granted at this stage, that is, before the filing of the charge-sheet. He had also contended that even after the filing of the charge-sheet, copies of those statements should not be granted unless they form part of the record though in the objection filed by the Deputy Superintendent of Police, Crime Branch, C. I. D., Sri R. M. Krishnaswami, he has stated that the accused are entitled to such copies only after the charge-sheet is filed.
2. The question for consideration before me now is whether copies of the statements under Section 164 Crl. P. C. can be granted at this stage, that is, before the filing of the charge sheet.
3. That these documents fall under Section 74(1)(iii) of the Evidence Act seems to me to be clear. The other question is whether the accused has a right to inspect and demand a copy of the same on payment of the usual charges. On the question as to who is a person who has a right to inspect the public document mentioned in Section 74 of the Evidence Act, there is no indication in the Evidence Act. In the Criminal Procedure Code also, there is no indication. The Criminal procedure Code does not deal with the public documents as such and so the question as to who has a right to inspect such a document and demand a copy is not dealt with therein. The question has therefore to be decided on the case law on the subject.
4. In Queen Empress v. Ammugam. ILR 20 Mad 189 (FB), the question that arose was as to whether reports made by a police officer in compliance with Ss. 157, 168, and 173 Crl. P. C. are public documents within the meaning of Section 74 of the Evidence Act and consequently an accused person is entitled before trial to have copies of such reports. That is a decision of a Full Bench of this court, consisting of four Judges. Subramania Aiyar and Davies JJ. who heard the case in the first instance referred the matter to a Full Bench. In the order of reference made by them, they say, with reference to documents under Ss. 157, 168 and 173 that:
".....in the eye of the law, every person has & right to inspect public documents subject to certain exceptions, provided he shows he is individually interested in them..... In Mutter v. Eastern and Midlands Rly. Co, (1888) 38 Ch. D. 92 at p. 106. Lindley L. J. with the concurrence of the Lords Justices Cotton and Bowen laid down the rule thus: '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 tight to inspect and take a copy is not expressly conferred, the extent ot such right depends on the interest which the applicant has in what he wants to copy and 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 as is shown by the judgment in Rex v. Justice of Staffordshire, (1837) 6 A and E 84 at p. 100. In the case mentioned by the Lord Justice, Lord Denman, Chief Justice, observed that for the persons interested 'Every officer appointed by law to keen records ought to deem himself for that purpose '(for the production of documents)' a trustee."
The Reference then came before a Full Bench consisting of Sir Arthur Collins C. J., Shephard, Subramania Aiyar and Benson JJ. The learned judges held by a majority (Subramania Aiyar J. dissenting) that reports under Sections 157 and 168 are not public documents. In the course of the judgment Collins C. J. at page 194 observes as follows:
"there appears no doubt that a person accused is a person interested in the documents referred to in Sections 157, 188 and 173 Crl. P. C if the reports relate to the accusation against him; and 'if such reports are public documents he would be entitled to inspect and have copies of such documents'."
(Underlining (here in single quotation marks -- Ed.) is mine).
Shephard J. at page 196 states as follows:
"I think it may be inferred that the legislature intended to recognise the right generally for all persons who can show that they have an interest for the protection of which it is necessary that liberty to inspect such documents should be given. Within that limit the right appears to be recognised according to the English authorities. In the present case there can be no question as to the interest of the party who claims inspection. It is plain that a person charged with an offence is legitimately interested in knowing beforehand the particulars of the charge made against him, and the names of the witnesses who are going to support it. His interest is nonetheless a legitimate one, because some persons might make improper use of the information so obtained. 'If, therefore, the documents sought to be inspected are public documents, and if they are unprotected by special privilege, it follows that the claim to inspection must be allowed' " (Underlining (here in single quotation marks -- Ed.) is mine).
If any of the documents is not a public document, the claim must clearly be disallowed."
5. Benson J. merely held that as the documents are not public documents they cannot be given to the accused. Subramania Aiyar J. clearly held that all the documents fell within Section 74 of the Evidence Act, and, therefore the accused is entitled to the same. It is clear from the judgment of the Full Bench in the above case that it the document falls under Section 74 of the Evidence Act, then the accused will be entitled to the same as he is a person interested in getting it, unless it is protected by any special privilege. But the majority of the Judges held that documents under Sections 157 and 168 are not public documents, and so the accused are not entitled to the same.
On the question of the report under Section 173, Crl. P. C. Collins C. J. and Benson J. held that the report under Section 173 Crl. P. C. also is not a public document while Shephard and Subramania Aiyar JJ. held that a report under Section 173 Crl. P. G. is a public document, and, therefore, the accused is entitled to the same. This decision is relied on to show only that if the document is a public document and if there is no express provision prohibiting the grant of copies, then the accused will be entitled to the same.
6. In Emperor v. Muthiah Swamiar, ILR 30 Mad 466, a decision of a Bench of this court, the question of granting copies of statements recorded under Section 164 Crl. P. C. came directly for consideration. The question came up for consideration before the learned Judges on a reference made by the Sessions Judge of Tiruchirapalli against the order of the Sub Magistrate who refused to grant copies ot statements recorded under Section 164 Crl. P. C. The Sub Magistrate relied on the decision in ILR 20 Mad 189 (FB), though that decision docs not relate to statements under Section 164 Crl. P. C. but only to reports under Sections 157, 168 and 173 Crl. P. C. The Sessions Judge thought that the Sub Magistrate was not justified in refusing copies of statements recorded under Section 164 Crl. P. C. He, therefore, made a reference under Section 438 Crl. P. C. The learned Judges who heard the reference referred to the decision in ILR 20 Mad 189 (FB), and observe as follows:
"In ILR 20 Mad 189 (FB) it was held by the Full Bench that an accused person was not entitled to copies of the reports made by a police officer under Sections 157 and 168 Crl. P. C. .....We have not been referred to any authority in which the present question is dealt with. It cannot, we think, be determined merely with reference to the question whether these statements are public documents within the definition in Section 74 of the Evidence Act, because Section 76 only provides the means of proof of public documents which any person has the right to inspect' and whether any person has a right to inspect any particular public document is, in our opinion, a question not dealt with by the Evidence Act and altogether outside its scope."
(Underlining (here in single quotation marks -- Ed.) is mine).
7. Then the learned Judges point out how the Criminal Procedure Code does not give a right to inspect and have copies of statements recorded under Section 162 Crl. P. C. and how the Code provides for giving an accused a copy of the charge under Section 210, and how the other part of the record and other documents referred to in Section 548 are to be granted. Then they say at p. 468:
"None of these sections entitles the prisoner to a copy of the statements under Section 162 at the present stage. There is, however, no provision similar to Section 173, Cr. P. C., which forbids these statements to be used as evidence and if a witness at the preliminary enquiry has previously made a statement under Section 162, such statement may be put in to contradict him when it will become part of the record and the accused will be entitled to a copy after commitment.
We think that if the framers of the Code had intended that persons under remand should be entitled to copies of statements under Section 162, Cr. P. C., they would have said so. On the contrary, we think they deliberately refrained from doing so on grounds of public policy and in accordance with the principle embodied in Section 125 of the Evidence Act. The question must, in our opinion, be decided in accordance with the provisions of the Code. We know of no general principle of the common law which would entitle an accused person to copies of documents of this kind. As regards the, English cases referred to in the order of reference in ILR 20 Mad 189 (FB), in which the parties were allowed copies of public documents on the ground of interest, the limits of the common law right to inspect and take copies on the ground of interest were not discussed or in question in (1888) 38 Ch. D. 92 at p. 106, or the other cases referred to, and we ore not aware of any English authority in favour of allowing an accused person to inspect and take copies of statements such as these. We must, therefore, decline to interfere in revision with the magistrate's order."
8. It would be seen from the observations extracted from the above decision, ILR 30 Mad 466, that though the question arose on a reference made with regard to refusal of grant of copies of statements recorded under Section 164, Cr. P. C., beyond making a reference to it in the commencement of the judgment all the other observations relate only to statements recorded under Section 162, Cr. P. C. I thought that the reference, to Section 162 might be a mistake in printing and I called for the original judgment but I found in the original judgment also the reference throughout is only to Section 162.
There are express provisions in the Criminal Procedure Code prohibiting the grant of copies recorded under Section 161, at any stage prior to the filing of the charge-sheet, because under the provisions of Section 162, statement made to any police officer cannot be used for any purpose except to contradict a witness when he is called in the witness-box. Now under the provisions of Section 173 as amended, these copies are to be granted before the commencement of the trial after the filing of the charge-sheet.
The observations which relate to Section 162 statements cannot apply to Section 164 statements. The learned Judges in ILR 30 Mad 466, seem to think that the question of granting copies under Section 164, Cr. P. C., cannot be determined merely with reference to their being public documents under Section 74 of the Evidence Act and the application by an interested person under Section 76 of the Act. It seems to me that in ILR 20 Mad 189 (FB), the right ot an accused to apply for public documents if they fall under Section 74 of the Evidence Act is recognised because he is a person interested in those documents.
This appears to have been overlooked by the Bench because the learned Judges observe that it cannot be determined merely with reference to the question of these documents falling under Sections 74 and 76 of the Evidence Act. Further, the learned Judges in ILR 30 Mad 466 observe that in ILR 20 Mad 189 (FB), the common law right to inspect and take copies on the ground of interest was not discussed: If discussion means examination of the question in detail and by argument then it is correct. But in ILR 20 Mad 189, the Full Bench by a majority held that the documents under Sections 157 and 163 were not public documents.
Still they have observed that if they are public documents an accused person is the person interested in inspection of the record and obtaining copies. To this extent it appears to me that the Bench has overlooked the observations of the Full Bench. The only decision, ILR 30 Mad 466, which is against the grant of statements recorded under Section 164, Cr. P. C., has not given due importance to the weighty observatioas of the Full Bench. It is no doubt a decision of a Bench of this Court and it is binding on me. But it seems to me that it requires reconsideration in view of the finding In ILR 20 Mad 189 (FB), that an accused is a person interested in getting copies of the documents which fall under Section 74 of the Evidence Act, if it relates to the charge against him.
9. It is forcibly contended before me by Mr. Gopalaswami, learned counsel for the respondent, that under the present Rule 339 of the Criminal Rules of Practice, copies of any portion of a criminal case must be furnished to the parties concerned on payment of the proper stamp etc. It is a mandatory rule and, therefore, it is contended, he is entitled to copies of those documents. It is pointed out by him that when ILR 30 Mad 466 was decided the rule was different. The rule as it stood then was Rule 177 of the Criminal Rules ot Practice, which was as follows;
"Copies of any portion of the record of a criminal trial must be furnished to the parties concerned on payment of the proper stamp and the authorised fee for copying......"
Whereas Rule 339 of the Criminal Rules of Practice which is now in force is as follows:
"Copies of any portion of the record of a criminal case must be furnished to the parties concerned on payment of the proper stamp and the authorised fee for copying."
As it now stands, Rule 339 seems to have altered the position in law from what it was at the time when ILR 30 Mad 466 was decided. The learned Judge who decided ILR 30 Mad 466 did not refer to the Rule 177 at that time but nevertheless it may be justified on the ground that under that rule the accused is not entitled to copies except during, the trial. But the present rule as pointed out, entitles the accused to get copies at any stage of the case in the absence of any limitation contained in the rule.
10. The learned Public Prosecutor contend that there are certain provisions in the Criminal Procedure Code which direct copies to be given such as Sections 103(3) and (4), 165(5), 166(5), 173(4), 207-A (3) and (8) and 251-A, Cr. P. C. and in the absence of a similar provision in Section 164, the accused is not entitled to it. Mr. Gopalaswami points out that under Section 172(2) there is a prohibition against looking into the case diaries. Under Section 172, though a Criminal Court may send for police diaries of a case, the accused or his agents shall not be entitled to call for such diaries, and they shall not be entitled to see them merely because they are referred to by the Court.
Similarly, there is prohibition in Section 162, Cr. P. C., against the use of the statements made to a police officer except for purposes mentioned in the section, i.e., only when a witness is called for the purpose of contradicting the same. In the absence of similar prohibition in Section 164, Cr. P. C., it is contended that the accused is entitled to copy of the same.
11. One of the arguments advanced by the learned Public Prosecutor in support of his contention that the documents ought not to be granted at this stage is that the grant of these documents will only enable the accused to tamper with the witnesses. As pointed out by Subramania Aiyar, and Davies, JJ., in the order of reference in ILR 20 Mad 189 (FB) at p. 193:
"In our view, no weight should be given to the suggestion of the Public Prosecutor that to allow the accused access to documents like the present would enable them to tamper with prosecution witnesses and thus hinder the course of justice. On the contrary, it is impossible not to feel the force of the observation of Trevelyan, J., that he did not know of anything more disastrous to the administration of criminal law than that the accused should be debarred from having access to information to which he has a right and to which he is not absolutely debarred from having access by some express provision of the legislature (Sheru Sha v. Queen Empress, ILR 20 Cal 642)",
and on a consideration of the provisions of Sectionss 74 and 76 of the Evidence Act, and the decision in ILR 20 Mad 189 (FB), and the other provisions of the Code relating to both, the grant of copies and to the prohibition of granting copies, it seems to me that the decision in ILR 30 Mad 466, requires reconsideration. This is a question of importance and it arises frequently.
12. The papers will therefore be placed before my Lord, the Chief Justice, for orders as to posting the case before a Full Bench.
13. The question that I would formulate for decision by the Full Bench is;
"Whether statements recorded under Section 164, Cr. P. C., fall under Section 74(1)(iii) of the Indian Evidence Act and if so whether the accused will be entitled to copies of the same under Section 76 of the Evidence Act at any stage of the investigation and even before the filing of the charge-sheet and whether there are any provisions in the Criminal Procedure Code or any other law prohibiting the granting of copies at the stages mentioned above."
(This petition coming on for hearing before the Full Bench, (consisting of Somasundaram, Ramachandra Iyer and Anantanarayanan, JJ.) pursuant to the aforesaid Order of Reference, the Court expressed the following):
OPINION OF FULL BENCH
Ramachandra Iyer, J.
14. The following question has been referred to us for decision :
"Whether statements recorded under Section 164 Crl. P. C. fall under Section 74(1)(iii) of the Indian Evidence Act, and if so, whether the accused will be entitled to copies of the same under Section 76 of the Evidence Act, at any stage of the investigation even before the filing of the charge-sheet and whether there are any provisions in the Criminal Procedure. Code or any other law prohibiting the granting of copies at the stages mentioned above."
The question, as formulated, has to be considered in its two aspects, namely, (1) whether a statement recorded under Section 164 Crl. P. C. could be held to be a public document falling under Section 74(1) of the Indian Evidence Act, and if so, whether a person, against whom no charge-sheet had yet been filed, could he said to have such an interest therein as to entitle him to inspect the same, or obtain copies thereof and (2) whether, even if the two questions were answered in the affirmative, there would be any prohibition under the Criminal Procedure Code or any other law against permitting him to inspect or obtain a certified copy of such a document.
15. The claim of the respondent to the copy of the statement recorded under Section 164 Crl. P. C. is rested on the basis that such a statement, on being recorded became public document within the meaning of Section 74 of the Indian Evidence Act, and that the respondent against whom an investigation of a cognizable offence is proceeding would have such an interest therein as would entitle him under the provisions of Section 76 of the Indian Evidence Act to a copy of it. Section 74, which defines "public documents" states :
"(1) The following documents are public documents :
(i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) public records kept in India or private documents."
Section 76 provides for the issue of certified copies of public documents. That states,
"Every public officer having the custody of a public document which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies." (Explanation omitted as unnecessary).
16. Section 76 in terms entitles a person, who has a right to inspect a public document, to a certified copy thereof. The section, however, does not specify the persons who would be entitled to inspect a public document. But judicial decisions have long ago settled that question. It has been held that the right to inspect a public document is correlated to the interest which the person who seeks inspection has in the document. That interest should be a direct and tangible one in the document; a mere curiosity or even an interest in some other matter which could perhaps be better served by the inspection, would not he sufficient.
17. The right of an accused person to obtain copies of public documents which concern the offence with which he is charged was recognised in ILR 20 Mad. 189 (FB). In that case a Full Bench of this court had to consider whether the reports made by a police officer in compliance with Sections 157, 168 and 173 Crl. P. C. of 1882, were public documents so as to entitle an accused to the grant of a certified copy thereof. The court by a majority (Subramania Aiyar, J. dissenting), held that the documents were not public documents, and that the accused would not be entitled to copies thereof.
In the course of their judgment, the learned Judges observed that, if the documents were held to be public documents, the accused should be held to have an interest therein which would entitle them to copies thereof under Section 76 of the Indian Evidence Act. It must be remembered that the decision under that case was rendered having regard to the provisions of the Criminal Procedure Code of 1882, which contained nothing corresponding to Sub-section (4) of Section 173 which was introduced by Act XVIII of 1923 or to the present Section 173(4).
No question arose in that case of the right of a person to obtain copies of documents, even before the investigation had been completed. That question however arose for consideration in 1LR 30 Mad. 466; The decision in that case negatived the right of the applicant to obtain certified copies of statements or confessions recorded under See. 164 Crl. P. C. before the charge-sheet was filed. The judgment in that case however contains certain errors (noticed in the order of reference) which justified the criticism that it is difficult to ascertain the precise reason which influenced the learned Judges' to come to the conclusion they did.
The judgment would appear as if the question arose in regard to the statements recorded under Section 162, but it is plain from the context that the learned Judges were dealing with statements recorded under Section 164 Crl, P. C. Again the learned Judges could not be held to have correctly appreciated the position, when they observed that Section 76 of the Evidence Act provided the means of proof of public documents which a person had the right to inspect. Section 76, on the other hand, declares the right of a person entitled to inspect a public document, to demand a certified copy on payment of legal fees therefor; it does not provide for the means of proof.
It was also stated that the English cases relied on in the order of reference in ILR 20 Mad. 189 (FB) did not define the limits within which a person interested could inspect a public document. It is not however clear whether the learned Judges while making those observations thought that even if there was an interest there should exist limitations on the right to inspect or the question was merely one in what circumstances could it be said that there was an interest. It is, however, clear from the judgment taken as a whole that the main reason for refusing the copies was that there was no provision in the Criminal Procedure Code to enable the court to do so, It has to be seen whether that conclusion could be justified on principle or authority.
18. Section 164 Crl. P. C. confers a power on Magistrates specified in Sub-section (1) thereto to record any statement or confession made to them in the course of investigation by the. police before the commencement or the enquiry or trial. The statement may be made by an accused, or by one who may ultimately become an accused, or by a witness capable of giving useful information. The object ot recording a statement under Section 164 Crl. P. C. are: (1) to use them as confession in case the person making them is ultimately charged with an offence, and (2) to. deter a witness from changing his version later by succumbing to temptations, influences, or blandishments.
A person suspected of an offence might like to confess in a penitent mood and If that opportunity is not taken advantage of, he might recant. Interests of justice require that such statements should be recorded in a manner which would be above cavil and not open to objection under Sections 25 and 20 of the Evidence Act. Section 164 Crl. P. C. provides the machinery for the record of such confessions and statements. From their very nature, such confessions or, statements will necessarily have to be kept secret; they being taken in the course of investigation, a disclosure, before the authorities decide to launch a prosecution might impede the even course of the investigation or even lead to undesirable results.
It is undeniable that one of the prime duties of the State is to investigate into offences and bring the offenders to trial. In our country, the obligation is a statutory one, provided for in the Criminal Procedure Code. Reason and convenience would dictate that nothing should impair the efficacy of the investigation into offences. But those considerations will of course not be relevant, if the law enables a person to obtain copies of such statements even before the commencement of the inquiry or trial.
It is claimed that Sections 74 and 76 of the Evidence Act provide the statutory basis for the right of a person, against whom an information is given and is pending investigation, to obtain copies of any public document connected with the investigation. Those sections being clear, if they were to apply to the instant case, the claim of the respondent cannot be rejected merely on the ground that to do so would be inconvenient to the prosecution.
19. Tho learned Advocate General contested the right of the respondents to obtain a copy of a statement made and recorded under Section 164 Crl, P. C. on the ground that the record itself would not be a public document and that therefore Section 76 which created the right to obtain certified copies in respect of public documents would not apply to that record. The argument was put thus: A confession or statement made under Section 164 Crl. P. C. was in substance nothing more than a statement of the deponent, a private individual; the recording of the same under Section 164 is done with the object of perpetuating the testimony, so as to pin down the parties making statements from going behind them.
That circumstance cannot alter its character and make it as it were an act of the public officer. A public document on the other hand, is one that would form the acts or record of acts of a public officer in his capacity as such officer. Those would comprise only the sovereign or official acts and cannot cover the testimony, incriminatory or otherwise of a person. A record of such confessions or statements cannot give what essentially is an individual's statement, the status of a public act,
20. Alternatively, it was contended that a public document would be one made for the purpose of being kept available to the public and a deposition, or statement not being one in which the public could be held to be interested, Section 74 would not apply. Reliance was placed for the contention on the observations of Lord Blackburn in Sturla v. Freccia, (1880) 5 AC 623, where it was stated at page 643 as follows:
"I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is a judicial, or quasi-judicial, duty to inquire, as might be said to be the case with the bishop acting under the writs issued by the Crown. That may be said to be quasi-judicial. He is acting for the public when that is done; but I think the very object of it must be that it should be made for the purpose of being kept public, so that the persons concerned in it may have access to it afterwards."
It will be convenient to deal with the alternative argument first. Under the English common law, a public document coming from a proper place or & certified copy of it was proof of every particular contained in it There were several documents, e.g., Parish Registers, Vestry books, court rolls of manor, log books maintained in tile King's shops, those maintained by certain Corporations etc., which were claimed to be public documents in order that the entries therein might be accepted as evidence without further proof.
The rule which insisted access of the public as a test for the document being considered public was necessitated evidently by the reason that the possibility of access of the public enhanced its probative value. But this rule cannot apply to our country where the statute defines what a public document is. Under the Evidence Act the right of a person to have access to or inspection of the document is not made a condition to its being a public document, but such right would arise as a consequence of its being one.
In (1880) 5 AC 623, a question arose as to the admissibility of a statement containing the age and place of birth of an individual in a report of a Committee appointed by a foreign Government about his fitness to hold a post under it. The House of Lords rejected the evidence afforded by the report on the substantial ground that it was not (1) made under a duty to enquire into the circumstances recorded (2) concerned with a public matter, (3) intended to be retained permanently and (4) meant for public inspection.
It is clear from the passage in the speech of Lord Blackburn that a judicial act would be a public duty. It was also recognised In that case that a matter may be public without it being the concern of the entire community i.e., the public at large. Applying the rule in (1880) 5 AC 623, it can be said that a statement recorded under Section 164 Crl. P. C. would be a public document as (1) the magistrate recording it performs a duty imposed on him by statute, a public duty, (2) it is judicial act, (3) tile record could not be considered as one intended for a temporary purpose.
The last condition about the access of the public could also he held to be satisfied in that those who have an interest in the document would (subject to such statutory restriction as may exist), by virtue of Section 76, be entitled to inspect. But as stated earlier, access of the public to the document is not a necessary condition for. its being a public document within Section 74 of the Evidence Act.
21. This leads us. to the principal contention advanced by the learned Advocate General, Under Section 74, the record of the acts of a public officer acting judicially would be a public document. The record of a court or magistrate will undoubtedly come under that head. We are unable to agree with the learned Advocate General that a deposition or a statement under Section 164 Crl. P. C. will not constitute the act of the officer, but merely that of the deponent. It may be that what occasioned the record was the statement of an individual; but as the statute imposes a duty on the public officer to record what is stated by the person making the statement, the record will be that of the officer just like any other report by that officer in the discharge of his official duties.
It is now well accepted that the recording of a deposition by a judicial officer is a public act, and that the depositions of witnesses taken by the officer of the court are public documents: Vide Haranund Roy v. Ramgopal, ILR 27 Cal. 639 (P. C.) and Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh, ILR 5 Pat. 777 : (AIR 1927 Pat 61). So too will be a statement or confession recorded under Section 164 Crl. P. C. That section imposes a duty (it be his right as well) on the concerned magistrate to record a confession or a statement and it also prescribes the formalities therefor; a record of a statement after administering an oath would be a judicial act.
This is the view of the Allahabad High Court in Bashiruddin v. Emperor, AIR 1932 AIL 327. It was there held that such statements were public documents, being acts of a judicial officer done under the provisions of the Code. The learned Advocate General, however, contended that as it cannot be said that any authority was bound to investigate or prosecute, an investigation will not be a public duty so that any statement taken in the course of it could be said to be a public document. Reliance was placed on the decision in Martin v. London County Council, (1929) 141 LT 120, to show that no duty could exist to prosecute for a criminal offence.
The question in that case was whether the act of prosecution was a "public duty" within the meaning of the Public Authorities Protection Act, 1893, of England. The plaintiff in that case, the suit being one for damages for malicious prosecution, was earlier unsuccessfully prosecuted for stealing: certain stamps. The defendants pleaded that the suit was barred, on the ground that, in prosecuting the plaintiff, they were acting in execution of a public duty within Section l(a) of the Act which stated,
"Any action ..... against any person for any act, done in pursuance, or execution ..... of any Act of Parliament, or of any public duty or authority; in respect of any alleged neglect; and so on shall not lie unless it is commenced within six months next after the act....."
Avory J. held that the public duty referred to in the section meant a duty which could be legally enforced, having regard particularly to the succeeding words relating to a neglect or default of the duty, and that the duty to prosecute for an offence was not a public duty within the statute. We cannot see how the principle of that decision can apply to the instant case. Under the Criminal Procedure Code the police Is charged with the duty of investigating offences; so also the magistrate with a duty to record a confession or statement by a person during the course of investigation.
22. The argument then was that even assuming there was a public duty in a magistrate to record the statements under Section 164, it is not every act in the performance of that duty that would become a public act, particularly when the Evidence Act itself showed that the legislature made a distinction between the part of the act which is strictly the act of the officer and the other part which is only the statement of an individual.
Reliance is placed in this connection on Section 80 which raises a presumption that the document which purports to be a deposition of confession is genuine, duly taken and given under the circumstances recorded therein. It was contended that if the legislature had intended that the entire record were to be treated as a public document, Section 77 would have sufficed as it specifically provided that certified copies of public documents could be produced in proof of the contents thereof, or that Section 80 would have been made to apply to the entire deposition. There is, however, a fallacy in the arguments.
Section 77 applies to certified copies of all types of public documents enumerated under Section 74; in the case of a record of a deposition or confession, a mere recital that they were taken in accordance with the rules may not always be sufficient, as but for Section 80, they will have to be proved. Section 80 dispenses with the necessity of formal proof in the case of (1) deposition of a witness in a judicial proceeding (2) record of a statement or confession which has been taken in accordance with law; it raises a presumption that the document is genuine, that the circumstances mentioned in the document existed, and that the record was duly made.
Sections 77 and 80 should, therefore, be held complementary to each other in a case where public document is a deposition given before judicial officer or where it is a statement or confession. The former section enables proof of the public document by the production of a certified copy while the latter raises a presumption as to the document itself. It will be meaningless to raise any presumption like the one under Section 80 in regard to the portion relating to the deposition or confession. We fail to see how Section 80 can be construed as implying that the actual deposition or confession would not be a public document.
23. Reference was then made to Section 30 of the Evidence Act, which enables a court to take into consideration the confession of a co-accused. The argument was put like this. Suppose a person while giving a statement under Section 164 Crl. P. C., implicates himself and another, but ultimately the person making the confession is not charged while the other person alone is charged, the confession will not be admissible against the person charged, as the person who confessed is not a co-accused.
If such a document is not even admissible, how could it be a public document the recitals of which could be proved by the production of a certified copy iti respect of which a presumption could be raised under Section 80? There again is a fallacy in the argument. The fact that a document is a public one does not necessarily mean that it is either relevant or admissible. That question has to be decided with reference to the other provisions of the Evidence Act. Conversely, the fact that a document is not admissible, cannot mean that it is not a public document, if otherwise it is one.
24. A magistrate recording a statement or confession under Section 164 Crl. P. C. is performing a judicial act and the record would be a public document within the meaning of Section 74 of the Indian Evidence Act. To entitle the respondent to a certified copy of such a document, he should show that he is interested in the document. In the present case, the investigation is still proceeding; no charge-sheet has been filed: It cannot be predicated with certainty that the respondent will be ultimately charged.
Can it be said for that reason that his interest is not a direct one but merely hypothetical? We are of opinion that it is not so. The respondent is kept in remand and that itself would be sufficient to show that he has a substantial interest in the statements or confessions which presumably have implicated him. If the question of the respondent's right to tile grant of the copies has to be decided purely on Sections 74 and 76 of the Evidence Act, there can be no doubt that he would be entitled to it.
25. But it can readily be conceded that the right granted by Section 76 of the Evidence Act might be restricted or taken away by another statute. It has, therefore, to be seen whether there is any other statutory provision which takes away or qualifies the right granted under Section 76 of the Evidence Act. The statute which deals with the statements or confession in question is the Code o Criminal Procedure.
There is no express provision in that Code which prohibits the granting of copies of such statements, But it is not always necessary that a statute should necessarily be explicit in the matter. The language of the statute may be such that a prohibition can be implied. In "Statutory Construction" by Crawford (1940 Edn), it is stated at pages 266 and 267:
"The implications and intendments arising from the language of a statute are as much a part of it as if they had been expressed. But it is only necessary implication which may thus be read into the statute. Mere desirability or plausibility alone will not meet the test. And while the implication does, not need to shut out every other possible conclusion, or be one from which there is no escape, it must be one which, under all the circumstances, is compelled by a reasonable view of the statute, and the contrary of which would be improbable and absurd. In order to meet the test, the implication must be so strong in its probability that the contrary thereof cannot be reasonably supposed.....In a broad sense, true implications are as much a part of the language which makes up the statute as the meanings of the various words are a part of it. Viewed from this standpoint, no exception is created to the general rule that the intent of the law-makers must be derived from the language used in the enactment. And the court in ascertaining a necessary implication is simply determining and making effective the legislative will."
26. It has to be considered whether there is anything in the Code from which it can be implied that the right of inspection conferred on a person interested under Section 76 of the Indian Evidence Act is taken away in regard to the cases provided for by it. The Criminal Procedure Code which enacts in the main the procedural or adjectival criminal law, also provides for the duties of the police in investigating the offences. Ch. XIV deals with information to the police and its power to investigate.
The enactment being a code, must be deemed to be exhaustive in regard to any point specifically dealt with by it. Vide Norendranath v. Komal Basini Dasi, ILR 23 Cal. 563 (PC). Therefore, where there is a specific provision in the Code, the law must be ascertained by reference to its provisions alone. Vide Rahim Sheikh v. Emperor, ILR 50 Cal. 872: (AIR 1923 Cal 724). When a Code which itself confers a power to investigate and take statements during such investigation provides also for the grant of copies of statements made by persons during the course of investigation at a particular stage of the investigation it is not unreasonable to assume that it did not envisage any grant of copies at any earlier stage of the investigation.
An examination of the provisions of Ch. XIV of the Code shows that there is a ban on the use of statements recorded under Section 161(3) except for the purpose of contradiction of the prosecution witnesses. No such limit for the use is placed in regard to statements under Section 164, though such statements (except confessions) will not be substantive evidence. In both cases, their use can normally be only if and when the enquiry or trial begins. The statute fixes the stage at which the copies would fee given to the accused.
Section 173(4) Crl. P. C. provides that, after forwarding of a report by the police, the accused shall be furnished, before the commencement of the inquiry or trial, free of cost, a copy of the police report, the first information report and all other documents or relevant extracts thereof including statements and confessions, if any, recorded under Sections 164 and 161(3) of all the persons whom the prosecution proposes to examine as its witnesses. Whatever might have been the position before the amendment of the section in 1955, a righf is now created in the accused in a criminal case for obtaining copies of statements taken during the course of investigation at a particular stage or time. That would mean that there is a limitation placed on the right; it would also mean that the copies should not be granted earlier.
If for instance a person is empowered to conduct an inquiry confidentially with instructions to disclose it to others at a particular stage, it does not need much argument to say that disclosure at any earlier stage is prohibited. Such a prohibition would be a necessary implication from the nature of the inquiry and the provision for the stage at which the disclosure is to be made. We have, therefore, to consider whether on a true interpretation of Ch. XIV of the Code, there is implied prohibition for the grant of copies at a stage earlier than the filing of the charge sheet. The principle of interpretation of a statute as stated by Maxwell on Interpretation ot Statutes, 10th Edn. at page 191, is :
"In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principle, should, in all cases of doubtful significance, be presumed to be the true one."
The rule stated above applies to the ascertainment of the scope and operation of a Statute and is not to be mixed up with what we have stated earlier in regard to the interpretation of a statutory provision which is clear in its terms. To put it more clearly, if the question is whether on the terms of Section 76 of the Evidence Act, the accused would be entitled to a copy, the Court could not enquire into the reasonableness of the request or of the hardship to the prosecution.
But if the question is what Was the object with which Ch. XIV of the Code was enacted and whether the grant of copies provided for under Section 173(4) was the only remedy and whether thereby there is an implied prohibition against the grant of copies earlier, the object of the enactment, etc., could be considered. In the latter class of cases the Court would be entitled to ascertain the intention of the legislature in accord with reason and avoiding inconvenience; and the aim, object and scope of the enactment would be relevant. Maxwell on "Interpretation of Statutes" states at p. 19:
"The literal construction then, has, in general but prim a facie, preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim scope and object of the whole Act; to consider, according to Lord Coke; (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy....."
At p. 20 :
"The true meaning of any passage, it is said, is to be found not merely in the words of that passage, but in comparing it With other parts of the law, ascertaining also what were the circumstances with reference to which the words were used, and what was the object appearing from those circumstances which the legislature had in view."
27. We have already referred to the fact that an investigation into an offence has necessarily to be kept confidential till the charge-sheet is filed. When therefore the Code provides for the grant or copies after the charge-sheet is filed, it must be taken so impliedly prohibiting the divulging of the recorded statements earlier.
28. There is yet another principle of statutory construction which will lead to the same conclusion. A later or special enactment which conferred a new right would impliedly repeal an earlier one, if the co-existence of such right would produce inconvenience. (Vide Maxwell on Interpretation of Statutes at p. 168). It is undoubted that the right given under Section 76 of the Evidence Act cannot Coexist with the implied prohibition contained in Section 173(4), Cr. P. C. The former should therefore be held not to apply to such statements till the charge-sheet is filed.
29. Section 76 of the Evidence Act which deals with the granting of copies of public documents being of general application should be held to be in the nature of a general law. The Criminal Procedure Code could be said to be special law in regard to criminal investigation and trials. That a prior or general enactment can be rendered inoperative without being actually repealed, is laid down in In re, Williams, (1887) 36 Ch. D. 573. In that case, the actuary of a savings bank died insolvent, owing the bank, money received in bis capacity of actuary.
The question arose whether the bank would be entitled to priority for its claim against the estate. Under Section 14 of the Savings Bank Act, 1863, the bank would be entitled to priority in respect of its claim. But under Section 40 of fee Bankruptcy Act, which was enacted later, there was no such priority. It was held that, although the prior Act was not in terms repealed, the subsequent legislation had rendered the prior enactment inapplicable in a case where the estate of the debtor was administered to insolvency. At p. 577, North, J., observed:
"Now it is clear that the provisions of an earlier Act may Le revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to that particular point, or from implication or reference from the language used."
In Jenkins v. Jones, (1882) 9 QBD 128, an Act of 1540 imposed penalty on the sale of "pretenced" title. A mere right of entry by a landlord having title would be a "pretenced" title. But the Real Property Act, of 1845 permitted the sale of the rights of entry. A person obtained sale from the owner a property of which he had no possession. What the purchaser acquired was a mere right of entry. It was held that, although before the enactment of the Real Property Act, 1845, a mere right of entry would he "pretenced" title, the alienation of which was prohibited by the 1540 Act, the effect of the subsequent enactment, though it did not actually repeal the law, did restrict its application to cases other than those covered by the latter enactment.
30. Whether the precise effect of Section 173(4) Cr. P. C., is to be viewed as an implied repeal of Section 76 of the Evidence Act in regard to statements under Section 164, Cr. P. C., or merely as a restriction "f the right declared by the latter in regard to the cases covered by the former, the principle is the same.
31. To sum up, Section 76 of the Evidence Act entitles a person interested in a public document to inspect or obtain certified copy thereof. A statement or confession recorded under Section 164, Cr. P. C., being a public document, a person interested (the respondent) would be entitled to obtain a certified copy thereof if there is no other statutory prohibition. Chapter XIV, Cr. P. C., authorises the recording of a confession or statement during the course of the investigation into an offence.
Section 173(4) of the. Code which occurs in that Chapter provides for the supply of a free copy of the statements specified therein. Thus both Section 76 of the Evidence Act and Section 173(4), affirmatively enact and confer a right to copies. But the object and intendment of Ch. XIV of the Code requires that Section 173(4) should be exhaustive of the right at the stage prior to the commencement of the enquiry. To hold otherwise would defeat the very purpose of Ch. XIV, namely, effective investigation into offences.
Therefore, Section 173(4), Cr. P. C., should be construed as impliedly prohibiting the grant of copies earlier than the time prescribed by it. Thaf prohibition will become ineffective if an unlimited right under Section 76 of the Indian Evidence Act is recognised. Therefore, the implied prohibition enacted by Section 173(4) would itself imply a repeal or an abrogation in part of the right under the former section. This is no new principle. When two statutes though expressed in affirmative language are contrary in matter, the latter or special would abrogate the earlier or general.
32. In ILR 30 Mad 466, the learned Judges, on A construction of the provisions of the Code, held that a person in remand could not get a copy of a statement made under Section 164, as the Code did not enable him to obtain it. That con; elusion was arrived at even when there was no provision in the Code like the present Section 173 (4). The introduction of the amendment specifically providing for the grant of copies, should, on the principle of the cases cited above, be held as impliedly taking away the right of the person under Section 76 of the Evidence Act. This would be in accord with the general scheme of Ch. XIV, Cr. P. C. It would therefore, follow that the accused would have no right to obtain copies of the statement under Section 164, Cr. P. C., before a charge-sheet is filed, notwithstanding Section 76 of the Indian Evidence Act.
33. Another line of reasoning will lead to the same conclusion. It is a well settled principle of construction that a judicial construction of a statute, which had been accepted for a long 'period of time, would prima facie, be taken as expressing the true intention of the legislature. In the "Statutory Construction" by Crawford, 1940 Edn. at p. 407, it is stated:
"Similarly, an acquiescence in a statute's construction as declared by the Court will also arise when the legislature permits the old statute to stand without change, especially for any great length of lime. This continued use of the same language on the part of the legislature indicates that the Court's construction is in accord with its intent; otherwise it would have used new or different language. In fact, it is to be presumed that the legislature spoke with a knowledge of the case law upon the subject-matter of the statute. It may also be assumed that such construction met with legislature favour."
In ILR 20 Mad 189 (FB) the copies of the reports were sought after charge-sheet was filed. In ILR 30 Mad 466, this Court negatived the right of a person kept in remand to obtain copies of the statements under Section 164, Cr. P. C., before the charge-sheet was laid. The decision in the latter case has been understood as laying down that a person under remand would not be entitled to copies of the statements before the commencement of the preliminary inquiry, but that, after such commencement, he would be entitled to copies of the same. Vide In re Mathayyan, 1944-2 Mad LJ 306: (AIR 1945 Mad. 85).
The view taken in ILR 30 Mad 466 was also adopted in Ghulam Nabi v. Emperor, AIR 1929 Lah 429. As a result of the judicial decisions, the result was that (1) the accused will not be entitled to copy of the police report etc., made under Sections 157, 168, 173 etc., (2) that the person suspected" of an offence will not be entitled to copies of confessions or statements recorded under Section 164 before charge-sheet is filed and (3) that after the inquiry has commenced the accused will have a right to obtain copies of statements recorded under Section 164, Cr. P. C.
34. In 1923, Section 173, Cr. P. C., was amended by introducing Sub-clause (4) which entitled the accused to the copy of the report of the police officer under Section 173(1). The effect of introduction of that sub-clause was to get over the decision in ILR 20 Mad 189 (FB), which held that a report under Section 173 not being a public document, certified copies of the same could not be given. The legislature thus remedied the mischief of the decision in ILR 20 Mad 189 (FB). But it did not seek to alter Or remedy the law as laid down in ILR 30 Mad 466, though it must be taken that it was aware of that decision; this presumably for the reason that it was in accord with its own intention.
This state of affairs continued to exist till 1955 when the Parliament by enacting Act 26 of 1955 repealed Section 173(4) and enacted Sections 173(4) and 173(5). A reading of the amended section would show that the Parliament accepted the principle of the decision in ILR 30 Mad 466, and provided for the grant of copies only after the filing of the charge-sheet. It must follow that the decision in ILR 30 Mad 466 correctly represents the intention of the legislature, and should be accepted.
35. The learned counsel for the respondent relied on Rule 339 of the Criminal Rules of Practice, as entitling the respondent to the grant of copies. That rule merely states that copies of records' in criminal cases must be furnished to the parlies concerned on payment of proper stamp charges. That would not entitle the parties to copies of those documents which under the law could not be granted till after a particular stage is reached.
36. Our answer to the question therefore can be stated thus: (1) The statements recorded under Section 164, Cr. P. C., would be public documents falling under Section 74(1)(iii) of the Indian Evidence Act. (2) The accused will be entitled to copies of the same as a person interested; (3) but his right to obtain such copies before the filing of the charge-sheet has been taken away by implication by the provisions of Section 173(4) of the Cr. p. C., and that he will be entitled to the copies of the documents only in accordance therewith. Reference answered.
37. I have had the advantage of study of the judgment of my learned brother (Ramachandra Iyer, J.), and I entirely agree with him upon the answer propounded by him to the reference before us. If I am impelled to state the grounds for our view in words of my own, it is for a significant reason. We are here dealing with what appears to be the statutory light of a subject who, in jeopardy, desires to obtain copies of certain public documents which, in effect, are the records of information that is being accumulated against him upon a grave criminal charge.
If, by the words "which any person has a right to inspect", which occur in Section 76 of the Indian Evidence Act, the legislature intended to refer to persons having an interest in such documents springing from a possibility of being affected by them, in accordance with certain well-understood Common Law principles to which I shall make more explicit reference later, the instant case before us does indeed furnish a most indubitable example of such interest.
And, if the statutory right exists, it cannot be taken away, or even whittled down, upon any considerations of administrative expediency or interest. We cannot permit ourselves to import possibilities, or to strike a balance between interests, when the legislature has not thought it fit to do so. I can only echo the words of Trevelyan J., in ILR 20 Cal 642 at p. 645, cited with approval in ILR 20 Mad 189 (FB), at p. 193, to this effect:
"I do not know of anything more disastrous to the administration of criminal law than that the accused should be debarred from having access to information to which he has a right, and to which he is not absolutely debarred from having access, by some express provision of the legislature."
Hence, if we are told that this right exists, but that by the necessary implications of the provision of Section 173(4), Cr. P. C., this right cannot be invoked prior to the filing of the charge-sheet by the accused who may be in custody, the judicial conscience must be thoroughly satisfied that no alternative interpretation is permissible.
In brief, we have to hold that the right which an accused person in remand might invoke, prior to the filing of the charge-sheet, to obtain copies of statements affecting the case recorded under Section 164, Cr. P. C., Upon Section 76 of the Indian Evidence Act, is not reconcilable with the intendment and implications of Section 173(4), Cr. P. C., as now enacted. I think it is necessary to view the case for an opposite stand-point, in its most acute and forceful view, before we permit ourselves to reject it. We are undoubtedly dealing with an important right of the subject, and our responsibility is all the greater because our view is based upon an implied repeal or abrogation, not an expressed one.
38. I propose to make but this reference to the arguments of the learned Advocate-General to the effect that statements recorded under Section 164, Cr. P. C., are not "public" documents at all within the definition of Section 74(1)(iii) of the Indian Evidence Act and hence that the question adumbrated by me earlier does not arise. My learned brother has dealt with these arguments extensively, and has shown the grounds upon which we are unable to accept them. I find myself in entire agreement with him. Further, it is not as if this matter Is res Integra before us.
There are authorities which are entitled to our great respect, ILR 27 Cal 639 (PC), ILR 5 Pat 777: (AIR 1927 Pat 61) and AIR 1932 All 327, which have held that depositions of witnesses and statements or confessions recorded under Section 164, Cr. P. C., are undoubtedly "public" documents within the scope of Section 74(1)(iii) of the Indian Evidence Act. Above all, I think that this difficulty really arises from an attempt to import a concept of the nature of a "public'' act, as involving the exercising of some sovereign power or attecting the public or a section of it in a determinate manner, which is really foreign to the definition.
Certainly, that particular argument of the learned Advocate-General derives substance and support from certain English decisions. Not merely from the dicta of Lord Blackburn in (1880) 5 AC 623, referred to and discussed by my learned brother, but also the words of approval of Farewell, J., in Mercer v. Denne, 1904-2 Ch. 534 at pp. 541 and 544, to the effect that:
"the test of publicity as put by Lord Black-burn is that the public are interested in it.....so that if there is 'anything wrong in it they would be entitled to protect .....The whole gist of the rule.....is that the publicity must be contemporaneous"; also see Thrasyvoules v. Papa Chris-toforos, 1952-1 All ER 179.
But these authorities must be understood against the backgrouod of a particular development of English Law, as pointed out by my learned brother. They have no relevance to this statutory definition, which is the basis of a right which springs from it, and of a mode of proof. The learned Advocate-General, as I understood him, sought to distinguish such records of the acts of a judicial officer as a statement taken under Section 184, Cr. P. C., or a deposition, on the ground that they are primarily not a record of the act of a judicial officer at all, but of what an individual said before that officer.
But such a distinction would be logically unsustainable through the range of instances. It would be difficult to hold that the public is affected by a judgment inter partes upon a question of fact; for that reason, a judgment is certainly not the less a "public" document under Section 74. It would be equally difficult to hold that judicial functions are not being exercised in, for instance, the recording of a confession under Section 164, Cr. P. C.; on the contrary, they may involve a nice judicial discretion.
39. I make no apologies, therefore, in passing to the heart of the problem, which appears to me to be this. If we were not confronted with Section 173 (4), Cri. P. C., at all, could we uphold ILR 30 Mad 466 as rightly decided, however greatly it might be entitled to our respect, both upon the principle of stare decisis, and otherwise? But if, dissenting from ILR 30 Mad 466, we affirm the right of a person situated like the present accused, to obtain copies of statements under Section 164, Cri. P. C., even during the stages of investigation, on ground of the undeniable urgency of his interest in them, and the terms of Section 76 of the Indian Evidence Act, can that right be whittled down upon what seems to be insecure foundation of an implied repeal? I think that this problem of interpretation does merit searching and anxious consideration on our part. But before proceeding into it, I wish to dwell a little, both upon the Common Law principles of ascertaining "interest", and certain observations in ILR 30 Mad 466, pertaining thereto.
40. In (1888) 38 Ch. D. 92 at p. 106, Lindley, L. J., said, "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 what is reasonably necessary for the protection of such interest". Commenting upon this and similar English authorities, Shephard, J., observed in ILR 20 Mad 189 (FB) at p. 196, that the legislature appears to have intended, by tile implications of Section 76, to recognise the right to inspect for all persons "who can show that they have an interest for the protection of which it is necessary that liberty to inspect such documents should be given."
It seems to me that this is the true rule, and that any oilier interpretation of Section 76 would be clearly unsustainable. As my learned brother, has pointed out, the observation in ILR 30 Mad 469 at p. 467, to the effect that "Section 76 only provides the means of proof of public documents which any person has the right to inspect" is not justified, for the section clothes the person who has the right to inspect, with a right to obtain a certified copy upon payment of the due fees. I find myself equally unable to follow the reasoning of the decision, when it attempts to render significant the fact that, in order to determine who has a 'right to inspect', we have to travel outside the ambit of the Evidence Act itself.
The legislature intended determinate persons to possess this right, and further must have been aware that the means of ascertaining them must be present. When the statute omitted to state the criterion, we may assume that this was deliberate, and that the Common Law principle was held to suffice. The learned Judges who decided ILR 30 Mad 466 appear to have felt that the limits of exercise of the power could not be gathered precisely from the English cases exemplifying the Common law rule. This difficulty is not clear, since an "interest", which is not a mere curiosity but which springs from the fact that the document affects the person concerned or his rights, is a most definite concept to apply to a given situation, The limits would appear to be self-evident.
41. Upon this Question of "interest'', the King against Tower (Maule and Selwyn's Reports, 1815-Vol IV p. 162), is very illuminating. That was a case in which a feudal superior who had custody of manorial records, lefused to grant the tenant the right to inspect, at a stage when no suit was pending, though the rights of the tenant were affected. The judgment proceeds as follows:
"The Lord has the custody of the Muniments which contain the evidence of the manorial rights. And shall he, who is a trustee and guardian of the evidence of the tenant's rights, lock it up from them, and in a matter too where his own interest is in question? I do not see upon what principle of justice that is to be done. Nor does the Court require, before it interposes by Mandamus, that there must be a suit depending. It would be extremely hard if it did, for then the tenant would be obliged to commence an action blindfold."
42. This has significance in the instant case, for, at one stage of the arguments, we were exercised by the fact that while the accused here could justly plead an interest which was direct and urgent in obtaining copies of the statements, being in remand, the rule must be uniform and cannot depend on the question of arrest and remand. Ultimately, in either case, the person may never be an accused at the trial. But we are satisfied that "interest" ought not to be narrowly construed.
In brief, bad the matter depended on Section 76 alone, we can see no justificaiton whatever for deferring or abrogating the right to obtain copies of such statements with regard to the stage of investigation of a criminal case, as distinguished from the commencement of the enquiry or trial. I think that we must equally hold that ILR 30 Mad 466 must be dissented from, if the legislature had not intervened with the enactment of Section 173(4) Crl. P. C., in its present form.
43. But with regard to this of an implied repeal or abrogation by the subsequent statute, certainly we are on delicate ground, for the courts do not favour this mode of inference. Upon One test or criterion, the passage already quoted by my learned brother from Crawford on "The Construction of Statutes" (1940 Edn) contains this significant qualification that the implication must be compelled by a reasonable view of the statute, "the contrary of which would be improbable and absurd" (p. 266). The question is whether we could hold that here, or whether Section 173(4) Crl. F. C. and Section 76 of the Indian Evidence Act could co-exist without conflict, as Sri Gopalaswami contends. Crawford states (page 630);
"The Courts do not look with favour upon implied repeals, and the presumption is always against the inteniton of the legislature to repeal legislation by implication. The absence of an express provision in a statute for the repeal of a prior law gives rise to this presumption....."
Again (page 631):--
"This presumption against the intent to repeal by implication rests upon the assumption that the legislature enacts laws with a complete knowledge of all existing laws pertaining to the Game subject so that the failure to add a repealing clause indicates that the intent was not to repeal any existing legislation."
But bearing these dicta in mind, and carefully considering the matter, I still think that there can be no doubt whatever that the legislature did intend to abrogate, by implication, any rights flowing from Section 76 of the Indian Evidence Act, in so far as they relate to Copies of statements etc., under Section 164 Crl. P. C. sought to be obtained hy an accused, prior to the filing of the charge sheet.
This is not merely based upon the canon in Heydon's case, (1584) 3 Co. Rep 7a but follows from the entire complex of the circumstances, the prior state of the law, the self-sufficient character of the Code of Criminal Procedure, and the intendment of Section 173(4) itself. The situation confronting us here appears to be most aptly summarised by a passage in Maxwell on the "Interpretation of Statutes", 10th Edn. page 168 :
"Again, if the co-existence of two sets of provisions would be destructive of the object for which the latter was passed, the earlier would be repealed by the later."
It could no doubt be urged that Section 173(4) of the Criminal Procedure Code does not include words such as "notwithstanding anything contained in Section 76 of the Indian Evidence Act." But that is obviously because Section 76 refers to a far wider class of persons entitled to inspect and to obtain copies of public documents. It has no necessary limitation of reference to accused persons, or to criminal cases. The argument that Section 173 (4) merely deals with the exceptional case of the obtaining of copies free of cost, as distinguished from the terms of Section 76 of the Indian Evidence Act, does scant justice to its phrasing, scope and intendment.
I have no doubt that this is an instance of legislative wisdom, a limitation imposed upon considerations of a balance of opposing interests and opposing principles. We must presume that the legislature introduced this implied restriction as to the point of time at which the accused would obtain copies of such 'public' documents affecting him, well realising that here, as elsewhere, considerations of the liberty and rights of an individual, and of public interest and justice may conflict, and need a harmonisation based upon the broadest equities. I would answer the reference as proposed by my learned brother.
44. I entirely agree with the judgments of Ramachandra Iyer J. and Anantanarayanan J.
(This petition having been set down for hearing after the expression of the Opinion o[ the Full Bench, the Court, Somasundaram J. made the following) :
45. The Full Bench has held that the copies of Section 164 Cri. P. C. statements cannot be granted to the accused before the filing of the charge-sheet. The order of the lower court is set aside and the petition is allowed.