1. This revisional application is directed against an order of Sri J. Sarma Sarkar, Presidency Magistrate, Calcutta, rejecting an application for copies of certain statements in the Police Diary and directing that the accused may call for the same for inspecting them and using them for cross-examination of prosecution witnesses, with the consequences as stated in Section 163, Evidence Act. The accused petitioner along with other accused were placed on trial before the learned Magistrate in respect of charges under Sections 147/379, I. P. C. After examination-in-chief of prosecution witnesses the accused petitioners made an application for copies of statements of the witnesses as recorded by the investigation officer. The order complained of was then made by the learned Magistrate.
2. Mr. Dutt appearing for the petitioner has urged that the record of the statement of a witness made by the police officer is a public document within the meaning of Section 74, Evidence Act, and that the accused has the right to inspect it because the accused is given under Section 145, Evidence Act, the right to use any previous statement for the purpose of contradiction and under Section 76, Evidence Act, he has right to get certified copy of any public document which he has the right to inspect. The argument turns on the proposition that the evidence of a witness recorded by a Police Officer in course of investigation is a public document within the meaning of Section 74, Evidence Act. There is, however, authority against this proposition.
In -- 'Isab Mandal v. Queen Empress', 28 Cal 348 (A), it was held that a written statement recorded by a police officer in the course of investigation did not come within the description of a record within the meaning of Section 35, Evidence Act. If the statement as recorded by the police officer is not a record within the meaning of Section 35, Evidence Act, it follows that it cannot be a public document within the meaning of Section 74. Further in -- 'Govt. of Bengal v. Santiram Mandal 0043/1930 : AIR1930Cal370 , it was held that records of statements made not on oath in course of a departmental enquiry by a government officer, were not public documents. This was not a case of recording of a statement by a police officer, but the recording of a statement by a police officer in the course of investigation would be analogous to the recording of a statement in the course of a departmental enquiry by a government officer.
Accordingly, the proposition on which Mr. Dutta rested his argument cannot be accepted as correct. It .must be held that the record of a statement of a witness made by a police officer in the course of investigation is not a public document. It is of course clear that the accused is vitally interested in inspecting such a record of a previous statement made by a witness, because under Section 145, Evidence Act, the accused has a right to contradict a witness with reference to a previous written statement or a statement reduced into writing made by him. Mr. Dutta has urged that if the accused has no right to obtain a certified copy under Section 76, Evidence Act, the trying Magistrate should under Section 165, Evidence Act, call for and inspect the record of the statement made in the course of a police investigation and allow the defence to use the same for the purpose of cross-examination; as in that case the accused might avoid the liability to give the entire record as evidence which might attach to him if he called for the document under Section 163, Evidence Act.
Under Section 165, Evidence Act, no doubt the Judge may call for the record of the statement of witnesses made by the police officer during investigation, but he is not bound to do so, and if the accused wants to be certain of using the statement of the witnesses as recorded by the police officer, the accused must call for them under Section 163, Evidence Act. In the case cited before, viz. 0043/1930 : AIR1930Cal370 , it was held that Section 163, Evidence Act,is applicable to criminal trials as well 93 to civil actions.
The procedure was approved in that case that in a criminal trial the accused should call for any previous statement that might be in the possession of Government or a Government Officer under Section 163, Evidence Act. Mr. Dutta's only objection is that if the accused calls for the document under Section 163, he must take the consequence stated in Section 163, Evidence Act, i. e. if the party producing the document requires the accused to do so, he would be bound to give the document in evidence. This clause of Section 163 should, however, be under-stood as subject to the remaining provisions of the Evidence Act, and at a trial only documents which are relevant under the provisions of the Evidence Act can be used as evidence. In respect of the record of the previous statement of a witness, such portion of it only would be relevant as is actually used for the purpose of contradicting under Section 145, Evidence Act or corroboration under Section 157 Evidence Act.
If the prosecution wants to corroborate a particular witness on a particular point with reference to his previous statement before the investigating officer, the prosecution in the Presidency town of Calcutta is in any case entitled to dp so even apart from the provisions of Section 163, Evidence Act. If the prosecution does not want to use any portion of the previous statement for corroboration, the prosecution naturally will not require the accused to put the document in evidence. Therefore in a criminal trial the liability of the party calling for a document to give the same in evidence if so required, means very little, and it really does not impose any additional liability on the accused. It should be remembered that we are now concerned with the Presidency town and not with the rest of the State outside the Presidency town.
3. Mr. Dutta has raised another point viz., that under the Calcutta Police Act, 1866, the term 'investigation' is given the same meaning as in the Criminal Procedure Code (vide Section 3, Calcutta Police Act), and in Section 4(e), Criminal P. C. 'investigation' is defined to include all proceedings under the Code for the collection of evidence conducted by a police officer or by any person 'other than a Magistrate who is authorised by a Magistrate in this behalf. Mr. Dutt has urged that since 'investigation' includes all proceedings under the Criminal Procedure Code, Chapter 14 of the Code relating to Investigation would apply also to the Calcutta Police.
It is, however, not possible to accept this contention. Section 1(2), Cr. P. C., provides that the Code does not, in the absence of any specific provision to the contrary, apply to the Police in the town of Calcutta, i. e., in the Presidency town of Calcutta. Accordingly, so far as .the Calcutta Police Act, is concerned, the term 'investigation', must be understood to mean 'investigation' including all the proceedings under the Criminal Procedure Code as applicable to Calcutta; unless any part of the Criminal Procedure Code has been directly made applicable to Calcutta by a Government notification under the proviso to Section 1(2) Cr. P. C., that, portion of the Criminal Procedure Code cannot; be held to apply to the Calcutta Police.
4. The last point raised by Mr. Dutta is that the special provisions for investigation in the Presidency town of Calcutta by barring the application of Sections 162 and 172, Cr. P. C., amount to discriminatory law and therefore offend against Article 14 of the Constitution. It is, however, well settled now that the law recognises reasonable classification and special laws may be, made for special areas or for special classes. In the Presidency town of Calcutta there is special law not only in respect of investigation but in respect of many other matters, for example, the administration of civil law by the Original Side of the High Court and the administration of criminal law by the Presidency Magistrates and so on. Accordingly it cannot be said that special provisions for investigation applicable to the Presidency town of Calcutta constitute a contravention of Article 14 of the Constitution.
5. Accordingly, this Rule is discharged subject to the observations already made with reference to the liability attaching to the accused under the last clause of Section 163. Evidence Act.
Renupada Mukherjee, J.
6. I agree with my learned brother that the Rule issued in this particular case should be discharged, but I should like to make some observations regarding the so-called practice obtaining in the Courts of Presidency Magistrates that an application by an accused person for obtaining copies of statements recorded in the police diary are rejected as a matter of course and an accused have only a right to inspect them for the purpose off cross-examining the witnesses with the liabilities and consequences mentioned in the latter part of Section 163, Evidence Act. The learned Magistrate seems to be of opinion that in no case can an accused person in a criminal case have the copy of a statement of witnesses examined before the police and recorded by the latter in the police diary.
In my opinion, if this practice be regarded as a correct practice then the provisions of Section 145, Evidence Act would be rendered nugatory to some extent. That section provides that a witness may be cross-examined as to any previous statement made by him in writing or reduced into writing and relevant to matters in question. The section further provides that if it is intended to contradict the witness by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. Under Section 78-A, Calcutta Police Act, Police Officers holding investigation into offences may or may not record the statement of witnesses examined by them. But if they record any such statement then the statement should be made available to accused persons for the purpose of giving them the right of cross-examination indicated in Section 145, Evidence Act, if the trying Magistrate is of opinion that the accused should be given such copies.
According to the learned Magistrate, the propriety of whose order was questioned in this Court by Mr. Dutt, the rule or practice obtaining in the presidency town of Calcutta is to refuse copies of such statements to accused persons. The learned Magistrate observes that the accused is given a right to inspect such statements for the purpose of cross-examining prosecution witnesses but, he adds, that in such a case the consequences laid down in Section 163, Evidence Act, would follow, the consequences being that if the accused does not actually use the police papers which are inspected on his behalf, then the prosecution may compel him to put in such papers by way of evidence.
This last observation of the Magistrate on thequestion of the operation of Section 163, Evidence Act,is purely an expression of legal opinion which doesnot arise in the facts of the present case. However,I may observe that Section 145, Evidence Act, seems tome to be a self-complete section and the formalities prescribed in Section 163, Evidence Act, for calling for and inspecting a document from the pos-'[session of the other side are not attracted to Section 145,Evidence Act. Were it so, the very purpose forwhich Section 145, Evidence Act was enacted would berendered nugatory.A question may naturally arise if an accusedperson does not call for previous statements recorded in police diaries of police officers then inwhat way such papers can be made available tohim. The answer perhaps may be found in Section 165Evidence Act, which lays down that a Judge canat any time order production of any papers fromthe possession of any party. It is needless to saythat in criminal trials the Magistrate has accessto police diaries at all times, and if he is of opinion that for the ends of justice and for ensuringa fair trial it would be necessary to give copies ofstatements of witnesses recorded by the police intheir diaries for the purpose of Section 145, EvidenceAct, then certainly he can always direct the policeto furnish copies of such statements to the accused. The only difference between the statementsrecorded by Mofussil police and by the police ofthe presidency town of Calcutta seems to be thatin the case of statements recorded by Mofussilpolice the accused gets such copies as a matter ofright under the provisions of Section 162, Criminal P. C.For reasons given by my learned brother I agreethat the provisions of the said section do notapply to investigations made by Calcutta police.
That being the case in trials arising within the presidency town of Calcutta the accused cannot get copies of statements of witnesses recorded in police diaries as a matter of course, but in suitable cases the Magistrate can order the granting of such copies under the provisions of Section 145, Evidence 'Act, read with Section 165 of the same Act without making the accused go through the formalities of 'Section 163, Evidence Act. In the case reported in AIR 1930 Cal 370 (B), it was held that the Crown can insist on the entire statement being put in under Section 163, Evidence Act, because the defence had called for their production and they were therefore produced and inspected by the defencebut the facts of that particular case, show that the statements of witnesses in that case were recorded in a departmental enquiry. The Magistrate certainly had no access to such statements and the accused had the necessity to call for and inspect such statements under the provisions of Section 163, Evidence Act,
In the case with which we are concerned here,the statements are statements recorded in policediaries. That being the case, I am of opinion thatsuch statements need not be formally called forunder Section 163, Evidence Act, and the Magistratehas the discretion to grant copies of such statements to accused persons for the purpose of cross-examining witnesses under Section 145, Evidence Act.In this view of the matter, the practice referredto in the order of the learned Magistrate that inthe presidency town of Calcutta applications forcopies of statements in police diaries are rejecteddoes not seem to be a correct practice and thepractice, in my opinion, requires modification. Ishould say that the Magistrate has the power togrant copies in suitable cases and he has also thepower to refuse to grant such copies in the exercise of his judicial discretion.