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Kottam Raju Vikram Rao Versus State Of Gujarat

1976 (5) TMI 107 - GUJARAT HIGH COURT

Dated:- 26-5-1976 - D.P. Desai, J. JUDGMENT D Desai 1. This petition is filed against the order passed by the learned Additional Sessions Judge, Baroda, on 29-4-1976 whereby he negatived the claim of the petitioner to copies of documents and statements recorded by the Investigating Agency during the course of investigation. Really speaking, this should be treated as Criminal Revision Application inasmuch as the order passed refusing the supply of copies is challenged. 2. The claim to the copies .....

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le with imprisonment for life. In the course of hearing of this application 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. B .....

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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 recorded by the police, under Section 161(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the new Code"). The Court of Sessions under Section 439 of the new Code has powers to release a person on bail and its .....

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g Agency or the State opposes an application for bail which can be given at any stage of investigation, it would be for the Investigating Agency or the State to make out before the Court hearing the bail application reasonable grounds for believing that the accused person is guilty of an offence punishable with death or imprisonment for life. There is no quarrel with this proposition raised by the Investigating Agency or the Slate. However, the submission of the learned Special Public Prosecutor .....

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the police statements or the relevant extracts thereof. Contention was also raised to the effect that there was an implied' prohibition contained in the new Code as regards the subject of grant of copies of police statements and other documents recorded in the course of investigation before the charge-sheet is sent to the Court. For this purpose reliance on different provisions of the new Code as well as the decision of a Full Bench of the Madras High Court, which will be noticed in due cou .....

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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) o .....

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tion on 162 of the old Code, as it stood prior to the amend ment and 'even thereafter, prohibited the use of statements recorded by the Police for any purpose, save the purpose as provided in the proviso to that section, at any inquiry or trial in respect of any offence under in vestigation at the time when such statement was made. Having prohibited this use, the proviso to Section 162(1) of the old Code contemplated a case where a witness is called for the prosecution whose statement under .....

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the Court, on the request of the accused, to furnish a copy and that too when the witness was called for the prosecution. Thus, the stage at which copies could be obtained before 1955 amendment was when the witness was called for the prosecution. Considerable departure from this position was made by the 1955 amendment which omitted the provision of the old proviso which required the Court, on the request of the accused to refer to the writing and direct furnishing of the copies thereof to the a .....

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ost. 8. Sub-section (4) of Section 173 of the old Code, prior to its amendment by Amending Act No. XXVI of 1955, only provided for supplying copies of the report sent under Section 173 to be furnished to the accused before the commencement of the inquiry or trial, on making 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 fre .....

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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 at an earlier stage. Nor did i .....

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same to be made. Before exercising this power, he has to entertain a reasonable belief that anything necessary for the purpose of investigation into the offence may be found in any place within the limits of the police station of which he is in charge and that such thing cannot, in his opinion, be otherwise obtained without undue delay. Having entertained this belief, the said officer had to record in writing the grounds of his belief and specify in such writing the thing for which search is to .....

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ee of costs. Thus, in contrast with the provisions relating to the supply of copies of statements recorded under Section 161(3), Section 165(5) expressly provides for supply of copies of record made under Sub-section (1) or Sub-section (3) even during the course of investigation. In fact, copies of the record made under Sub-section (1) or Sub-section (3) of Section 165 of the old Code were to be sent forthwith to the nearest Magistrate, We have, therefore, an instance where the Code has made exp .....

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gation, 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 .....

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he course of such search and of the places where they are found. Sub-section (3) of Section 103 provides that a copy of such list shall be delivered to the occupant or some person on his behalf who attended the search. Sub-section (3) of Section 102 of the old Code empowers a person making the search of any place liable to search under the chapter, to search also any person in or about such place who is reasonably suspected of concealing about his person any article for which search is to be mad .....

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opies in the course of investigation and before submitting of the report under Section 173 wherever it thought fit to do so. 12. We may now turn to the new Code. Sub-section (3) of Section 161 is a reproduction of Section 161 (3) of the old Code, except the introduction of the word "true" before the words "record of the statement." Section 162 of the new Code is a substantial reproduction of the old Section 162. Similarly, Section 173 of the new Code partly reproduces the old .....

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ate has to supply without delay to the accused, free of cost, a copy of the documents mentioned therein, including the statements recorded under Section 161(3) of all persons whom the prosecution proposes to examine as its witnesses. Section 208 of the new Code makes a similar provision with regard to the statements and confessions, if any, recorded under Section 161 or Section 164 in a case instituted otherwise than on a police report, when it appears to the Magistrate, that the offence is tria .....

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b-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) .....

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ovisions as to the stage at which copies are to be su pplied made expressly by the Code, as stated above, are to be considered as exhaustive, it is obvious that the accused person will not be entitled to copies recorded under Section 161(3) at an earlier stage. This is more so because while making provision for releasing the accused on bail, the Code does not make specific provisions for supply of copies. The legislature is content with saying in Section 437 of the new Code that the person accus .....

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e supplied and the Code should be treated as exhaustive on that subject. 15. Question as regards furnishing copies of statements recorded under Section 164 to an accused person who was under remand and against f whom preliminary inquiry had not commenced, arose before the Madras High Court under the old Code in Emperor v. Muthia Swamiyar I.L.R. 30 Madras 466. In that case the accused applied for copies of statements of some witnesses recorded under Section 164 of the Code of Criminal Procedure. .....

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person a right to inspect and have copies of statements recorded 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 .....

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he 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 supply of copies of statements recorded under Section 164 of the Code on the ground that they were public documents arose before a Full Bench of the Madras High Court in State of Madras v. G. Krishnan . In that case also the person applying for .....

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of Judicial act would be a public document within the meaning of Section 74 of the Evidence Act. It further held that to entitle the respondent to a certified copy of such a document, he should show that he is interested in .the document. It was further held that the respondent had a substantial interest in the statements recorded because be was on remand. Then their Lordships stated: If the question of the respondent's right to the grant of the copies has to be of the Evidence Act, there c .....

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part of the right under the former section. This is no new principle. When two statues though expressed in affirmative language are contrary in matter, the latter or special would abrogate the earlier or general. (vide para 31). The ratio of the earlier Division Bench judgment of the Madras High Court (ILR 30 Madras 466) was approved by the Full Bench. The learned Judges also stated that an investigation into an offence has necessarily to be kept confidential till the charge-sheet is filed and, .....

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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 gi .....

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is, how the application under Section 437 and Section 439 of the Code is to be dealt with by the Court if the copies as aforesaid are not to be supplied to the accused. In case of a non-bailable offence not punishable with death or imprisonment for life, in the absence of any allegation by the Investigating Agency as to the likelihood of absconding of the accused or tampering with the witnesses or creating obstacles in the-way of investigation or such similar grounds, the Court would be incline .....

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before it. It follows therefore, that in any case, the material collected during investigation on which the Investigating Agency relies to oppose, the bail application like the present, should be disclosed in some form or the other to the accused. It will be then only that after hearing the accused the Court will be in a position to come to a conclusion whether there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life. In my .....

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petitioner in another bail application No. 296 of 1976, stated at page 80 as under: The view of the Bombay High Court that Section 16-A(9) may be read down so as to enable the Court to examine the forbidden material is impossible to sustain. 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 it .....

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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 fit in a given case not to disclose the material, it did not hesita .....

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) or Sub-section (3) and any information or materials on which such grounds or declaration under Sub-section (2) or a declaration or confirmation under Sub-section (3) or the non-revocation under Sub-section (4) of a declaration are based shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any .....

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de, a learned single Judge of the Nagpur Court in S.V. Inglev v. Emperpor A.I.R. 1944 Nagpur, 149, observed that it should be extremely unfair that the Court should act to the prejudice of the accused on some material which is not disclosed to the accused. 20. The learned Special Public Prosecutor did not raise any question of privilege as arising under the Evidence Act and, in my opinion, rightly. Section 124 of that Act, which states that no public Officer shall be com pelled to disclose commu .....

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tion 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 .....

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