Balbir Singh vs Balbir Singh and ors.

S.S. Rathor, J.

The precise grouse made by the petitioner is that before initiation of the proceedings in the complaint case, the police investigated the matter vide First Information Report No. 144 dated 4.9.1988, registered with Police Station, Sultanpur Lodhi. The investigation was conducted by more than one Investigation Officer and one of them was Mr. S.S. Bajwa, Deputy Superintendent of Police (Detective). It is further contended that said Mr. Bajwa recorded the statement of PW''s Santokh Singh son of Chanan Singh and Chanan Singh son of Harnam Singh and now the said statements recorded by the police be supplied to the accused for using the same for confrontation purposes in accordance with law. The request of the petitioner has been turned down in the trial Court on the ground that no such statements are with the prosecutor and as such, cannot be supplied to the accused.

Mr. Sangha counsel for the complainant has contended that no such statement was recorded by Mr. Bajwa, D.S. P. (Detective) and this plea has been raised merely to delay the proceedings.

A perusal of the statements of PWs Chanan Singh and Santokh Singh shows that they were joined in the investigation of the case and they gave some statements to the police. However, Additional Public Prosecutor made the following statement :

"We are not having these copies in the police file and cannot supply."

This statement made by Additional Public Prosecutor is not a categorical denial of the fact that the statements of these witnesses were recorded by Mr. S.S. Bajwa. However, whether such statements were recorded or not still remains a disputed question of fact. Mr. Grewal has asserted in positive terms that the statements of these two witnesses were recorded by Mr. Bajwa and he shall be proving this fact. In view of this observation of Mr. Grewal, Mr. Sangha has very fairly conceded that the petitioner shall be entitled to invoke the provisions of Section 311 of the Code of Criminal Procedure for getting the aforesaid PWs summoned through process of law and then confront them with their previous statements.

A persual of the provisions of Section 311 of the Code of Criminal Procedure does provide such a statutory remedy to the petitioner. Accordingly, it is ordered that if the petitioner succeeds in proving to the satisfaction of the Court that the statements of the aforesaid PWs Chanan Singh and Santokh Singh were recorded by the police as stated above, the petitioner shall be entitled to get those witnesses summoned in accordance with law and to confront them with their previous statements, if any.

Mr. Sangha has contended that in fact, no such application dated 26.9.91 had been moved by the accused as observed by the trial Court in the impugned order. On the other hand, Mr. Grewal has contended that such a prayer was made before the trial Court though orally and finds mention in the zimini order of the Court. A perusal of the order dated 9.1.92, passed by brother B.S. Nehra, J. in criminal misc. No. 13063 M of 1991 shows that a direction had been issued to the trial Court to decide the petitioner''s application dated 26.10.91 for the supply of statements of the witnesses by passing a speaking order after hearing learned counsel for the parties. It is not disputed that in fact such a request does find mention in the zimini order dated 26.10.91. The counsel for the petitioner made following statement before the trial Court :

"This case was investigated by Shri S.S. Bajwa, D.S.P. (D). Kapurthala and he recorded the statement of Chanan Singh and of Harnam Singh on 2.1.89, who are PWs in this case. Their copies be supplied to me for the purpose of crossexamination." The facts remains that on 26.10.1991, request for the supply of the statements of the witnesses was made before the trial Court and as such, non moving of the formal application dated 16.10.91, is not material.

Mr. Sangha has further contended that this prayer is being re agitated second time before this Court and it is not so permissible under Sec. 397 of the Code of Criminal Procedure. I regret my inability to accept the contention. Vide order dated 9.1.92 passed by brother B.S. Nehara, J. a direction was issued to the trial Court to decide the controversy on that limited point by passing a speaking order. The present petition has been filed impugning the resultant order passed by the trial Court. As such, this petition is maintainable and objection of Mr. Sangha is not factually attracted to the facts of the present case.

No other point has been urged by either party.

With the directions made above, this petition stands disposed of in the terms indicated above.