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Emperor Vs. Makhan Lal Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1940Cal167
AppellantEmperor
RespondentMakhan Lal Dutt and ors.
Cases ReferredSuresh Chandra Ghose v. Emperor
Excerpt:
- .....witness ratipati banerjee, p.w. 2 in this court, a question has been raised whether the signed statement made by him to the investigating police officer on 17th january 1939 comes within the scope of section 163, evidence act, and whether the accused can be required to give it as evidence in the circumstances mentioned in that section. it may be explained at the outset that section 162, criminal p.c., has no application to the case because the code does not apply to the police in the town of calcutta unless expressly made applicable to them, and there has been no notification making the section 30 applicable (see section 1, sub-section 2 of the code).2. the circumstances in which the question5 has arisen are briefly these: after the witness had been examined-in-chief and while.....
Judgment:

Narsing Rau, J.

1. In the course of the examination of the prosecution witness Ratipati Banerjee, P.W. 2 in this Court, a question has been raised whether the signed statement made by him to the investigating police officer on 17th January 1939 comes within the scope of Section 163, Evidence Act, and whether the accused can be required to give it as evidence in the circumstances mentioned in that Section. It may be explained at the outset that Section 162, Criminal P.C., has no application to the case because the Code does not apply to the police in the town of Calcutta unless expressly made applicable to them, and there has been no notification making the Section 30 applicable (see Section 1, Sub-section 2 of the Code).

2. The circumstances in which the question5 has arisen are briefly these: After the witness had been examined-in-chief and while he was under cross-examination by Mr. Banerjee representing accused 6 and 7, learned Counsel asked him whether he had made certain statements to the police, evidently intending to use the witness's statements during the investigation for the purpose of contradicting his evidence at the trial. One of the statements said to have been made by him during the investigation was specifically put to him, namely that he heard on 12th April 1937 that Haripado had already died. This was put to him after counsel had inspected the police diary produced by the learned Government Counsel. Later, Mr. S.K. Basu, in cross-examination on behalf of accused 2, 4 and 5, put to the witness another statement said to have been made by him before the police, the statement, namely that on 10th April 1937 the witness had a call through Dhananjoy Naskar of Sahebpur to examine Haripado Sardar. This also was done after learned Counsel had inspected the police diary. The two isolated statements put to the witness on behalf of accused 2, 4, 5, 6 and 7 happen to be part of the witness's signed statement to the police, but the signed statement contains other statements not yet admitted in evidence. It is contended by the learned Government counsel that by virtue of Section 163, Evidence Act, he is now entitled to require counsel on behalf of these accused persons to give the whole of the signed statement as evidence, omitting only those portions which are not relevant. Section 163 provides:

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

3. So far as the legal point is concerned, I think I am bound by the decision in Government of Bangal v. Santiram mandal 0043/1930 : AIR1930Cal370 in which it was held that Section 163, Evidence Act, is applicable to criminal trials as, well as to civil actions. I see no conflict between, the decision in that case and the decision in the earlier case in Suresh Chandra Ghose v. Emperor : AIR1924Cal542 , in which it was held that an accused person has the right to see the statements recorded by the investigating police under Section 47-A, Calcutta Suburban Police Act, and use them for purposes of contradiction in accordance with Section 145, Evidence Act. Ordinarily therefore I would have ruled in the present case that the entire signed statement of the witness to the police excluding only such portions as are not relevant to the case should go in as evidence. This would have brought on the record those parts of the signed statement which were corroborative of the witness's evidence at the trial, in addition to those brought on the record by counsel for the accused as being contradictory of that evidence, but no others, For example, the signed statement contains an expression of the witness's opinion as to the age of the deceased Haripado Sardar. The witness not having been asked to express any opinion on this point at the trial his previous expression of opinion to the police would not be admissible under any Section of the Evidence Act. It is not corroborative, because there is nothing to corroborate. In other words it should be treated as irrelevant. It is not contended by the learned Government Counsel that Section 163, Evidence Act, attracts even those parts of the document which are not relevant to the case.

4. I have said that ordinarily I should have, taken the course indicated above, but in this particular instance there has been some confusion. In the first place there was no formal notice or requisition from the accused calling for the document. Even if this defect be ignored on the ground that there was what was understood to be a notice or requisition, a further fact has to be considered. The typed transcript of the Court's proceedings of 14th June shows (vide portion below Ques. 135) that when the learned Government Counsel produced the police diary, he indicated that although counsel for the accused were not entitled to look at the diary, nevertheless, where, as on this particular occasion, a direct contradiction was sought to be made out, he would ' not 'rely on the strict technicality.' This may have given the impression, although, the impression was perhaps unintended, that he would not require counsel for the accused to put in the document as evidence. In view of these special circumstances I rule that the accused cannot in this particular instance be compelled to give as evidence the signed statement in question, but this is, of course, without prejudice to the Government Counsel's right to re-examine the witness in accordance with law.


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