Kottam Raju Vikram Rao vs State of Gujarat

D.P. Desai, J.—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.

The claim to the copies arose in the fallowing circumstances:

The petitioner came to be arrested on March 19, 1976 and was then taken on remand. He gave an application for being released on bail It

appears that the allegation against him was that he had committed offences punishable under Sections 5(3)(a)(b) and 12 of the Indian Explosives

Act and Sections 4, 5 and 6 of the Explosive Substance Act and Section 120B of the Indian Penal Code and Section 121A of the Indian Penal

Code. The last mentioned offence is punishable 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. Being aggrieved by this order the petitioner has

filed the present petition.

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.

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, u/s 161(3) of the Code of

Criminal Procedure, 1973 (hereinafter referred to as ""the new Code""). The Court of Sessions u/s 439 of the new Code has powers to release a

person on bail and its discretion is not so narrow as that conferred on the subordinate Court u/s 437(1) of the new Code in respect of non-bailable

offence where there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or imprisonment for life.

However, the wider discretion u/s 439 of the new Code has also to be exercised keeping in view the limitations u/s 437(3) of the new Code. It is

obvious that in a case of this type when the Investigating 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 who appeared for the

Opponent-State in the present case was that the material collected during the course of investigation cannot be disclosed to the defence before

sending of the chargesheet and that it can be shown to the Court for the purpose of the satisfaction of the Court as to the existence of reasonable

grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. On this basis it was urged that the

petitioner is not entitled to copies of 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 course, is placed by the learned special Public Prosecutor.

These provisions and the decision of the Full Bench referred to, relate to the grant of copies to the accused. There 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.

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.

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 u/s 161(3) of the new Code or their relevant extracts before the investigation is completed and a

charge-sheet is sent to the Court.

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 request of the accused to refer to

the statement before the police and to direct furnishing a copy thereof to the accused. Section 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 u/s 161(3) could be used for the limited purpose of contradicting him in cross-examination and for the purpose of explaining any matter

referred to in his cross-examination. Now, prior to the 1955 amendment it was the Court, which, on the request of the accused had to refer to the

writing and to direct furnishing of a copy thereof for enabling the accused to contradict the witness. Thus the Old Code prior to 1955 amendment

having provided for a limited use of the police statement, left it to 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 accused.

Obligation was squarely laid on the police by Sub-section (4) of Section 173 of the old Code to furnish or cause to be furnished to the accused,

free of cost, Brte aYta the copies of statements recorded under Sub-section (3) of Section 161 before the commencement of the inquiry or trial.

Thus, after furnishing the charge-sheet u/s 173 duty was laid on the officer incharge of the police station to furnish inter alia the copies of the

aforesaid statements to the accused free of cost.

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 u/s 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 free of cost a copy of not only of the report forwarded u/s 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 u/s 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 u/s 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 it make any express provision for the same.

The old Code also provided for giving of copies in other cases, for instance, Section 165(5). This provision also occurred in the chapter relating

to the investigation by police, viz. Chapter XIV. Under this pro vision, an officer in charge of a police station or a police officer making

investigation, after following specified procedure, is empowered to search for a thing in any place within the limits of the police station or cause a

search for the 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 be made. Sub-section (5) of Section 165 of the old Code, as amended by 1955

Act, reads as under:

(5) Copies of any record made under Sub-section (1) or Sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take

cognisance of the offence and the owner or occupier of the place searched shall on application be furnished with a copy of the same by the

Magistrate:

Provided that he shall pay for the same unless the Magistrate for some special reason thinks fit to furnish it free of costs.

Thus, in contrast with the provisions relating to the supply of copies of statements recorded u/s 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 express provision for supply of copies of the record forming part of investigation at a stage earlier

than submission of a report u/s 173(1) of the old Code. It may be mentioned that Sub-section (3) of Section 165 of the old Code empowers an

officer incharge of a police station or a police officer making an investigation to require any officer subordinate 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,

Provisions of Sections 102 and 103 of the old Code are made applicable to the search made u/s 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 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 made. As regards this search, Sub-section (4) of Section 103 provides that a list of all things taken

possession of shall be prepared, and a copy thereof be delivered to such person.

Therefore, the old Code had made specific provision for grant of copies of the list of things seized in the course of search of a place or search

of a person irrespective of the stage at which the investigation had reached. We have thus seen that under the old Code the legislature expressly

provided for supply of copies in the course of investigation and before submitting of the report u/s 173 wherever it thought fit to do so.

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 Section 173 together with certain material changes. Thus, u/s

173(5) of the new Code, alongwith the report under Sub-section (1) of Section 173, the police officer has also to forward to the Magistrate

statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses. There is material change as regards the

authority by which copies of statements u/s 161 arc to be supplied. Section 207 of the new Code provides that the Magistrate has to supply

without delay to the accused, free of cost, a copy of the documents mentioned therein, including the statements recorded u/s 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 u/s 161 or Section 164 in a case instituted otherwise than on a police report, when it appears to the Magistrate,

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 u/s 161 are to be

supplied to the accused. The stage will arise after forwarding of a report u/s 173(1) of the Code.

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 u/s 161(3) prior to forwarding of the report u/s 173(1).

We have before us a Code which empowers the competent persons or officers to make searches, to investigate into offences and to record

statements during the course of such investigation. The Code also provi des for supply of copies to the concerned persons including the accused

persons. It is obvious that on the matters on which the Code has made provision in express terms, it should be considered to be exhaustive. If,

therefore, the provisions 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 u/s 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 accused of an offence shall not be released on bail if there appear reasonable

grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. In my view, therefore, supply of copies of

statements recorded during the course of investigation before forwarding of a report u/s 173(1) of the Code could be said to be impliedly

prohibited in view of the fact that an express provision has been made by the Code as to the stage at which the copies are to be supplied and the

Code should be treated as exhaustive on that subject.

Question as regards furnishing copies of statements recorded u/s 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 ILR 30 Mad

In that case the accused applied for copies of statements of some witnesses recorded u/s 164 of the Code of Criminal Procedure. It was

argued before the Division Bench of the Madras High Court that the accused had the right to demand copies of such statements u/s 76 of the

Indian Evidence Act. The learned Judges of the Madras High Court negatived this contention observing that the question cannot be determined

merely with reference to the question whether the statements were public documents within the meaning of Section 74 of the Evidence Act, and

stated:

The Code of Criminal Procedure does not give an accused person a right to inspect and have copies of statements recorded u/s 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 u/s 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 u/s 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 u/s 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.

The question of supply of copies of statements recorded u/s 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 Vs. G. Krishnan, . In that case also the person applying for copies was arrested.

Investigation was not complete and charge-sheet was not filed. Statements u/s 164 were recorded in the course of investigation and the respondent

applied for copies of those statements. The Magistrate directed copies of statements to be given and against that order the State went in revision to

the High Court. As regards the claim based with Sections 74 and 76 of the Evidence Act, the Full Bench stated that the statement u/s 164 of the

Code being a record 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 can be no doubt that the would be entitled

to it. Still the claim to copies was negatived on the ground that Section 173(4) of the Code should be construed as impliedly prohibiting the grant of

copies at a time earlier than prescribed by it. It was further observed:

...That prohibition will become ineffective if an unlimited right u/s 76 of the Indian Evidence Act is recognised. Therefore, the implied prohibition

enacted by Section 173(4) would itself imply a repeal or an abrogation in 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, therefore, when the

Code provides for the grant of copies, after the charge-sheet is filed, it must be taken as impliedly prohibiting the divulging of the recorded''

statements earlier. In view of the reasoning given in this judgment, the conclusion that copies of statements recorded u/s 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.

It may also be stated that in Clause (b) of Sub-section (5) of Section 173 of the new Code all the statements recorded u/s 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

Prosecutor that at this stage copies of the statements recorded during the course of investigation or the extracts thereof cannot be supplied.

But the question is, how the application u/s 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 inclined to grant bail, taking of course into consideration the gravity of the offence.

Therefore, when the Investigating Agency submits to the Court that the accused should not be released on bail on the ground that there are

reasonable grounds for believing that he is guilty of offence punishable with death or imprisonment for life, that submission has got to be made good

before the Court. The Court has to form that opinion, which opinion should enter the judicial verdict after hearing both the sides 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 opinion, disclosure of material is a must in a case of this type. In this connection the observations made by His

Lordship Chandrachud, J., in Additional District Magistrate, Jabalpur v. Shivakant Shukla Criminal Appeal No. 279 of 1975 together with other

Criminal Appeals, commonly known as Habeas Corpus appeals, (in a different context of course) are quite apposite. The learned Judge, as per

the cyclostyled copy of the judgment made available to this Court by Mr. Mehta, learned Advocate for the 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 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.

As regards disclosure of material whenever the legislature thought it fit in a given case not to disclose the material, it did not hesitate to provide

for the same by specific enactment. Section 16-A(9) of the Maintenance of Internal Security Act, 1971 (which was inserted by Central Act No.

14 of 1976) is an instance in point. The provision reads as under: ""16-A(9) Notwithetanding anything contained in any other law or any rule having

the force of law,

(a) the grounds on which an order of detention is made or purported to be made u/s 3 against any person in respect of whom a declaration is made

under Sub-section (2) 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 document containing such ground, information or

material;

(b) No person against whom an order of detention is made or purported to be made u/s 3 shall be entitled to the communication or disclosure of

any such ground, information or material as is referred to in Clause (a) or the production to him of any document containing such ground,

information or material.

No such provision has been made in the present case. In fact, in dealing with bail application u/s 497 of the old Code, a learned single Judge of the

Nagpur Court in AIR 1944 149 (Nagpur) , 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.

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 communications made to him in official confidence,

when he considers that the public interests would suffer by the disclosure, would not be applicable to the statements recorded u/s 161 of the Code

for the simple reason that these are no communications made to a public Officer in official confidence. This was in terms held by the Madras High

Court in Natha Apparao Vs. Narulasetti 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 u/s 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 public interest, he shall indicate that part of the statement

and append a Note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making

such request.

Thus, it is clear that the Investigating Agency in the present case is bound to disclose material collected during the course of investigation on

which it wants to rely for the purpose of opposing the bail application of the petitioner.

The contention of the learned Special Public Prosecutor that the material may be disclosed to the Court only and cannot be disclosed to the

accused will, therefore, not be accepted. This material should be disclosed by the Investigating Agency preferably in the form of an affidavit to be

filed by the Investigating Officer or officers, stating therein the bare facts (devoid of inferences arising therefrom) which were disclosed during the

investigation and on which reliance is placed. As far as possible, the Court should insist upon affidavits, but in a given case it would be open to the

Court to accept material supplied in some other form. Normally, however, the Court must insist upon the affidavit.

In view of the aforesaid reasons, the order passed by the learned Additional Sessions Judge is set aside. It is directed that the learned

Additional Sessions Judge will call upon the Investigating Agency to dis close the material upon which it proposes to oppose the application for bail

given by the petitioner and after such material is supplied, he should give an opportunity to the accused to make his submissions thereon and after

hearing both the sides, he should come to the conclusion as regards exercise of discretion of releasing the petitioner on bail or otherwise.

With these directions, the present petition will stand disposed of.