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Madari Sikdar and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1927Cal514
AppellantMadari Sikdar and ors.
RespondentEmperor
Cases ReferredBal Gangadhar Tilalc v. Shriniwas Pandit
Excerpt:
- .....of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.3. the second proviso is as follows:provided further, that if the court is of opinion that any part of such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused.4. it will be observed that in the amended section 162 of the criminal procedure code there is a departure from the procedure laid down in the former section. in the former section it was obligatory on the judge at the request of.....
Judgment:

1. This Rule raises the important question as to the stage at which an accused person is entitled to be furnished with a copy of the statements of the prosecution witnesses recorded by a Police Officer under the provisions of Section 161 of the Criminal Procedure Code. Section 162 is in these terms:

No statement made by any parson to a Police Officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry, or trial in respect of any offence under investigation at the time when such statement was made.

2. The first proviso is as follows:

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

3. The second proviso is as follows:

Provided further, that if the Court is of opinion that any part of such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused.

4. It will be observed that in the amended Section 162 of the Criminal Procedure Code there is a departure from the procedure laid down in the former section. In the former section it was obligatory on the Judge at the request of the accused to refer to the writing made under Section 161, but it gave the Judge a discretion to decide whether a copy should be given to the accused. The effect of the amendment is to annul the Judge's discretion, and to make it obligatory on him to give the accused copies of the statements subject only to the exclusion of irrelevant matters which the public interest requires should not be disclosed.

5. The next question is at what stage the accused is entitled to make his request. It is plain, first of all, that it must be after the witness has been called for the prosecution and not before the commencement of the preliminary enquiry, Secondly, the statement can only be used (i) if duly proved and (ii) in order to contradict the witness as provided for by Section 145 of the Evidence Act. In order to 'prove it duly' the accused must prove it either by cross-examination of the witness or of the police officer who recorded it, but to use the words of Section 145 of the Evidence Act 'if it is intended to contradict him' i.e., 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.

6. The object of the provision is to give the witness the chance of explaining or reconciling his statements before the contradiction can be used as evidence, and in Bal Gangadhar Tilalc v. Shriniwas Pandit [1915] 39 Bom. 441, the Privy Council pointed out the impropriety of treating the oral testimony of a witness as rebutted by statements by him contained in documents in evidence unless such statements were put to him in cross-examination.

7. This decision, as also the wording of Section 145 of the Evidence Act, make it clear that it is at the time of cross-examination and not before that the previous statements of a witness can be put to him. But the cross-examination must lay the foundation for the suggestion that the evidence given by the witness in Court is contradicted by his statement recorded under Section 161 of the Criminal Procedure Code and it is only then that the accused is entitled to ask the Judge to refer to the writing and grant him copies. Section 162 does not impose the duty upon the Judge of granting copies of the statement recorded under Section 161 before the cross-examination has been opened. This view of the law has also been taken by the Madras High Court in In re Peramasami Rayudu : AIR1926Mad183 . We may add that if the Legislature had intended to invest the accused with the right to have the copies at any stage of the trial, it must have said so.

8. In the present case we have examined the deposition of the witnesses named in paragraph 3 of the petition as well as of the Investigating Officer (P.W. 28), In no case was the witness asked in cross-examination whether he had made the same statements before the Investigating Officer as he had made in Court; and beyond asking the Sub-Inspector whether he had examined the witnesses under Section 161, which he admitted, the defence put no question to him as to the statements which the witnesses had made before him. As, therefore, no foundation had been laid in cross-examination for the suggestion that the witnesses had made previous statements which, if produced, would have contradicted their testimony in Court, we are of opinion that the learned Magistrate was justified in refusing to grant copies of those statements. The Rule is, accordingly, discharged.


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