TMI Blog1976 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for bail, the petitioner insisted upon copies of documents and police statements recorded during the course of investigation. It may be mentioned that the petitioner has not so far been charge-sheeted and the investigation is going on. The demand for the copies was opposed by Investigating Agency and the learned Judge after hearing both the sides, came to the conclusion that copies cannot be supplied to the petitioner. Being aggrieved by this order the petitioner has filed the present petition. 3. We arc not at this stage concerned with the question whether on the merits of the case there are reasonable grounds for believing that the petitioner has committed an offence punishable with imprisonment for life. That question is yet to be decided by the learned Additional Sessions Judge. It is at the interim stage against the order of refusing the supply of copies that the petitioner has come to this Court by way of this petition. 4. The question which, therefore, arises is whether in the course of hearing of a bail application, which is given before the completion of investigation by a person arrested by the police, the latter is entitled to copies of the statements record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no decision so far which lays down that while withholding the copies, even the material on which the prosecution seeks to oppose the prayer for bail should not be disclosed to the petitioner. 5. On behalf of the petitioner it has been urged that there is no express prohibition against grant of copies and it is but natural that without the copies or their relevant extracts, it would not be possible for the petitioner to make submissions on the question as regards the existence of reasonable grounds for believing that the petitioner is guilty of an offence punishable with death or imprisonment for life. 6. The first question, therefore, which we will take up for decision is, whether a person who has been arrested in the course of investigation is enficied (o get copies of statements recorded under Section 161(3) of the new Code or their relevant extracts before the investigation is completed and a charge-sheet is sent to the Court. 7. Prior to the amendment of Criminal Procedure Code, 1898 (here inafter referred to as the old Code ) by Amending Act No. XVI of 1955, Section 162 of that Code before the amendment of 1955 contained a proviso which required the Court on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a payment for the same unless the Magistrate for some special reason thought fit to furnish it free of cost. In its place, the Amending Act of 1955 laid obligation on the officer in charge of the police station to furnish free of cost a copy of not only of the report forwarded under Section 173 but also the first in formation report and all other documents or relevant extracts thereof on which the prosecution proposed to rely including the statements and con fessions, if any recorded under Sub-section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposed to examine as its witnesses. Thus right to obtain copies was in terms conferred by this provision on the accused, but that right arose at a stage after forwarding of a report under Section 173 and before commen cement of inquiry or trial as the terms of Sub-section (4) of Section 173 clearly postulate. Thus, so far as furnishing of copies of statements recorded under Section 161 of the old Code was concerned, a right was conferred on the accused in explicit terms at the stage stated above. The legislature, while doing so, did not confer the right to obtain copies a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate to him to make the search after recording in writing his reasons for his belief for making a search. A police officer making an investigation, shall make search in person, so far as practicable. On his inability to conduct the search in person and nonavailability of any other person competent to make the search, having recorded his reasons, he has to deliver to the subordinate officer authorised to make the search an order in writing specifying the place to be searched and, so far as possible, the thing for which search is to be made. The owner of occupier of the place searched is entitled to copies of record under Sub-section (1) or Sub-section (3) of Section 165 of the old Code as stated above, 10. Provisions of Sections 102 and 103 of the old Code are made applicable to the search made under Section 165, by Sub-section (4) of Section 165. Sub-section (2) of Section 103 of the old Code lays down an obligation on the per son making a search to make the search in presence of two or more re speciable inhabitants of the locality in which the place to be searched is situate and to prepare a list of all things seized in the course of such search and of the places where they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate, that the offence is triable exclusively by the Court of Sessions. The point to be emphasised, however, is that the legislature, in enacting the new Code, has not made departure from the provisions of the old Code as regards the stage at which copies of statements recorded under Section 161 are to be supplied to the accused. The stage will arise after forwarding of a report under Section 173(1) of the Code. 13. Sed. 165 of the new Code makes similar provisions with regard to supply of copies of the records made under Sub-section (1) or Sub-section (3) of Section 161 in cases of search in the course of investigation. Similarly, Section 100 of the new Code makes a similar provision as regards supply of copies of list of things seized as was contained in the old Code. Thus, in the scheme of the new Code, we find express provisions for supply of copies and the stage at which they are to be supplied. Here again there is no express provision with regard W supply of copies of statements recorded under Section 161(3) prior to forwarding of the report under Section 173(1). 14. We have before us a Code which empowers the competent persons or officers to make searches, to investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded under Section 162 before the beginning of the preliminary inquiry but merely provides for giving the accused a copy of the charge, Section 210, for giving any person affected by any judgment or order passed by 'a Criminal Court, a copy of the Judge's charge to the jury or of any order or deposition or other part of the record under Section 548 and for giving the accused a copy of the depositions taken after his commitment free of charge, Section 219. None of these sections entitles the prisoner to a copy of the statements under Section 162 at the present stage 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 of the Criminal Procedure Code, 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. 16. The question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the recorded' statements earlier. In view of the reasoning given in this judgment, the conclusion that copies of statements recorded under Section 161 during the course of investigation cannot be supplied before submission of charge-sheet as provided by Section 173(1) of the Code, is reinforced. 17. It may also be stated that in Clause (b) of Sub-section (5) of Section 173 of the new Code all the statements recorded under Section 161 are not to be sent to the Magistrate, but statements of those persons whom the prosecution proposes to examine as witnesses are required to be sent. At an intermediate stage like the present, therefore, it would not be possible for the Investigating Agency to decide whom it wants to examine as witnesses. If this is the position with regard to the submission of statements to the Court under the mandate given under Sub-section (5) of Section 173, it is clear that there is no right generally to the copies of statements recorded by the police during the course of investigation at an earlier stage. If the copies cannot be supplied, relevant extracts cannot be insisted upon. I, therefore, accept the submission of the learned Special Public Prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain. What use can a Court make of material which it cannot disclose to the detenue and how can it form a judicial opinion on matters not disclosed to a party before it? The High Court, at the highest, could satisfy curiosity by testing the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict Thus, when a bail application under Sections 437 or 439 is being heard, and the question pertains to the liberty of the subject depending on the order which is to be passed on that bail application, it is clear that the subject approaching the Court with prayer for bail should have an opportunity to meet the material collected during the course of investigation on the basis of which it is urged by the other side that the subject should not be released on bail because there are reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life. Rules of fairness apart from anything else do require that such material should be disclosed to the accused applying for bail. 19. As regards disclosure of material whenever the legislature thought it f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Madras High Court in Natha Apparao v. Narula setti Suryaprakasa Rao . It was laid down that Section 124 of the Evidence Act can be appli ed only when the communication was made to a public officer in official confidence. The statements made by the witnesses in an investigation ma de by the Circle Inspector under the Code of Criminal Procedure cannot be considered to be statements made in official confidence. The accused is entitled to use those statements to contradict the prosecution witnesses. In fact, with regard to statements recorded during the course of investigation, only a limited privilege if at all is granted by Section 173(6) of the new Code at the time of sending the statements recorded under Section 161 to the Magistrate, this limited privilege is also subject to the order of the Magistrate as to the exclusion of a part of the statement from the copies to be granted to the accused. The said provision reads as under: 173(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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