Dinanath Sahay vs Emperor

Manohar Lall, J.—This case has been referred to us by Verma J. by his order dated 28th April 1938 on the ground that there is no reported Division Bench authority of this Court which covers the question raised herein. The facts which are necessary to elucidate the matter in controversy are extremely simple and may be stated thus: On 12th November 1937 Dinanath Sahay lodged an information before the police regarding theft of a tin box said to contain some miscellaneous articles worth about Rs. 4/12 and certain documents. As the result of the investigation the police took the view that the complainant had lodged the information knowing and believing it to be false, intending

thereby to cause a public servant to do a thing,. which such public servant ought not to do if the true state of facts respecting which such information was given were known to him and to use his lawful power to the injury or annoyance, of the suspects

and lodged a complaint u/s 182, I.P.C., against the petitioner Dinanath before the Subdivisional Officer who, on taking cognizance issued a warrant of arrest against the accused on 25th November 1937.

The accused appeared on 8th December and on that date the ingredients of the offence were explained to him in the manner laid down for the trial of a summons case. Upon the accused pleading not, guilty, the learned Magistrate ordered that the witnesses for the prosecution should be-summoned for 20th December. As all the witnesses were not present on that date, the learned Magistrate, upon his view, "as this is a summons case it is desirable to examine all the witnesses on the same date" adjourned the case to 12th January 1938 for which the witnesses for the prosecution were again summoned to attend and also directed the accused to adduce his defence evidence on the same date On 12th. January 1938 the prosecution witnesses, were present but before their examination, actually began, the accused put in a petition to the learned Magistrate complaining,: that although he made an application, asking for a copy of the final report in the case, which is the basis of the complaint, against him, he had not been supplied any; copies so far. He also stated in that petition, that he is not in possession of the statements of the witnesses in the police diary, and therefore he prayed that the Court; may be pleased

to order the copies to be given to him before he is, asked to cross-examine the witnesses. As it is extremely difficult to cross-examine the witnesses without copies of the above documents the cross-examination may kindly be postponed.

The learned Magistrate upon that petition passed the following order. "The A.S.I. will show the final report to the accused before the case is taken up." Thereafter the-witnesses for the prosecution were examined-and cross-examined by the accused without his being in possession either of a copy of'' the final report or of the statements of the prosecution witnesses. The accused was not ready with his defence witnesses and the Court adjourned the case to 24th January 1938, on which date he examined two witnesses and on their being cross-examined, the case was adjourned to 29th January for passing of orders. On 1st February 1938 an order was passed convicting the accused u/s 182, I.P.C., and sentencing him to pay a fine of Rs. 200; An appeal against this order was dismissed by the Appellate ''Court summarily on 23rd February 1938. Against these orders this Court has been moved in revision.

The only question which was argued before Varma J. was whether the conviction of the petitioner should not be set aside on the ground that his trial had been vitiated because the learned Magistrate failed to comply with the requirements of Section 162, Criminal P.C., namely of that part of the Proviso of Sub-clause (l) which enacts 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, Evidence Act, 1872.

Before considering the case law referred to in the order of reference it will be useful to examine if the rights of the accused which are clearly laid down in the above quotation have been curtailed in the present case by reason of the course adopted ''by the accused, because it was argued by the learned Assistant Government Advocate for the Crown that the accused did not adopt the proper procedure and suggested that the accused should have renewed his application either orally or in writing after each witness who was being called by the prosecution had entered the witness-box and after his examination-in-chief had been recorded. In my opinion, this will be taking a very narrow view of what the accused intended by reason of this application of 12th January 1938. The accused definitely informed the Court that he would be unable to cross-examine the witnesses of the prosecution unless he was supplied with the copies of the statement of those very witnesses before the police. The learned Magistrate by his order clearly indicated that he had refused that application because he simply ordered the Police Sub-Inspector to show the final report to the accused.

But the Legislature has given a statutory right to the accused to insist upon his being supplied with the copies of the police statements so that he may be able to show by means of cross-examination that the witnesses are making statements in. Court which are directly contradictory to what they stated before the police, and the Courts should be careful to see that the trial of an accused is conducted in the manner so carefully laid down by the Code. It was conceded that the provisions of Section 162 are applicable to the trial of a summons case as well as to the trial of a warrant case and indeed this is obvious because Section 162, Criminal P.C., does not speak of warrant cases only. The provisions of Section 537, Criminal P.C., cannot be called into aid by the prosecution in this case because unless the statements of the witnesses before the police have been furnished to the accused or have been seen by the Court itself, this Court is unable to say that the accused has not been prejudiced and where there is a violation of the plain directions in the statute as to the mode in which the trial of the accused should be conducted this Court is bound to assume prejudice to the accused in the circumstances existing in the present case. In my opinion the trial of the accused was vitiated and he is entitled to have a retrial upon the terms which will be indicated hereafter irrespective of whether he made a complaint on this score to the Appellate Court.

In the case reported in Sasdat Mian and Others Vs. King-Emperor, the accused had applied for copies of statements made by the prosecution witnesses to the police during the investigation, and the Magistrate having ordered such copies to be furnished to him, the accused declined to cross-examine the prosecution witnesses until such copies were actually handed over to him, and the Court held that the Magistrate had no option but to postpone the cross-examination. Macpherson J. in the judgment which he delivered stated however that the question of furnishing to the accused a copy of the statement of a witness before the police does not arise until the witness is called for the prosecution and secondly, that the Court is not competent to direct that the accused be furnished with a copy of such statement unless it contains something which constitutes a contradiction to a statement made by the witness in his deposition at such inquiry or trial. If this view was correct it will not be possible for an accused to conduct his cross-examination effectively because he or his lawyer will have to make up his mind at once as to where the contradiction existed and it would entail a duty upon the Court to place itself in the position of an advocate and try to find whether there was a contradiction or not before it allowed the handing over of the statement to the accused. In my opinion, the true interpretation is that the accused has a statutory right to be furnished with a copy of the police statements of the witnesses for the prosecution who were going to be called (and this can easily be seen from the hazri which is filed by the prosecution) and the only duty which rests upon the Court is that it will not allow any part of such statement contained in writing made by the police in the course of the investigation to be used in evidence during the course of cross-examination unless this contradicts the previous statement of the witnesses, and this may well be left for the stage of final arguments.

In Ramgulam Teli and Others and Parmeswar Munder and Others Vs. Emperor, a similar question was again considered by this Court and it was held that as soon as a witness is produced in Court and the accused applies for a copy of the statement before the police recorded in writing, the ''Court is bound u/s 162, Criminal P.C., to refer to the writing and to direct that the accused be furnished with a copy thereof and it was pointed out that it was not necessary that before the copy be given some foundation be laid in cross-examination for the suggestion that the evidence given in Court is contradicted by the previous statement recorded by the police. Jwala Prasad J. held that the meaning of the words, "the Court shall refer to such writing" is that the Court is to exercise discretion under Proviso 2 and that it does not mean that the right of the accused is at all restricted to obtain a copy, the discretion wherein had been expressly taken away by the Legislature and distinctly held agreeing with Ross J. that

the Court cannot refuse the granting of a copy till the accused has by his cross-examination showed that there is a contradiction between the statement in Court and the statement referred to ''before the police.

This view of the Division Bench was expressly affirmed the next year in Jhari Gope v. Emperor AIR (1929) Pat. 268 where the learned Chief Justice agreed with the judgment of the Court delivered fazl Pazl Ali J. who expressed himself thus upon the point which is now being considered by me:

The language of Section 162 is mandatory and the learned Assistant Sessions Judge had no power to refuse the application once it had been made unless the case came under Proviso 2 to Section 162, Criminal P.C., and in his opinion the statement made by the witness was not relevant to the subject-matter of the inquiry or trial and that its disclosure to the accused was not essential in the interests of justice and was inexpedient in the public interest. Further there is nothing in Section 162, Criminal P.C., to authorize the Court to look into the statement in the police diaries for the purpose of finding out whether it is contradictory to the statement made in Court or not before granting the application. This is really the function of the lawyer for the accused after a copy of the statement has been granted to him. There may be cases in which the accused or his lawyer is inclined to treat certain statements as contra dietary, whereas the Court may think there are no, contradictory and there is nothing in the Code to suggest that the decision of the Court on the point must prevail; nor is there anything in the language of the Section to suggest the view that the accused are to be debarred from examining the statements for themselves to find out if there are any contradictions, merely because the Court has formed an opinion that there are no contradictions.

Upon the examination of the case law which exists in this Court, as no contradictory authority of any other High Court has been brought to our notice, I hold that the learned Magistrate failed to follow the clear mandatory directions of the Code in refusing to give to the accused copies of the statements to which he was entitled under the law. In practice there need be no difficulty in complying with the statute even in a summons case; although it is true that the accused is ordinarily called upon in a summons case immediately to cross-examine the prosecution witnesses as soon as the statement-in-chief of each witness has been recorded; but that procedure is subject to the provisions of Section 162, Criminal P. C, and assumes that at that time the accused had been provided with the statutory materials which are ,his undoubted right to possess in order to cross-examine the prosecution witnesses. In such cases it will be convenient and consistent with the requirements of the Code that the witnesses for the prosecution are examined-in-chief on one day and then a very short adjournment is given to the accused during which time he can be provided with the copies of the statements of those witnesses who have been examined by the police. In the present case the case had to be adjourned from 12th January to 24th January and the learned Magistrate could well have finished the examination of the prosecution wit-nesses on 12th January 1938 and after seeing that the accused had been provided with the copies of the police statements either on that very day or on the next day, the cross-examination of the witnesses could have been fixed for either on 13th or 14th January 1938 or on such other date as would have suited the convenience of the Court, of the witnesses and the parties.

I would therefore set aside the conviction and sentence passed on the accused and direct that the case be remanded to the learned trial Court so that after the accused has been furnished with the copies of the statements of the witnesses before the police and with the final report he may fix a date on which the witnesses for the prosecution may be cross-examined further by the accused in the light of these materials which were denied to him on 12th January 1938. It may be that the accused will not like to cross-examine the witnesses further if he does not find any materials for contradiction in the statements of the witnesses which will now be supplied to him. After such cross-examination, if any, has been allowed the learned Magistrate will proceed to dispose of the case by calling upon the accused to produce such further defence witnesses as he may choose to do so.

There after he will dispose of the case after hearing arguments of both sides. If the learned Magistrate has been transferred in the meantime, the proceedings shall commence de novo by a fresh examination-in-chief of the witnesses for the prosecution.

Chatterji J.

I agree.