Raj Kumar and Another vs State of H.P.

Kuldip Chand Sood, J.—The question, raised in this petition, is whether the Petitioners would be entitled to the statements recorded by the Investigating Agency of the various persons u/s 161 of the Code of Criminal Procedure, irrespective of the fact whether the prosecution intends to examine those persons as witnesses or not.

It is to be noticed that when the Investigating Officer forward a report to the Court, u/s 173 of the Code, he is required, if the case is investigated by the Police, to forward along with such report :

(a) all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witnesses.

A bare perusal of this provision would show that it is only the statement(s) of the persons, whom the prosecution intends to examine as its witnesses, are required to be forwarded to the Court and not the statement(s) of the persons, whom the prosecution does not propose to examine.

Section 207 of the Code provides for supply of the copy of the police report and other documents to the accused. It reads :

Supply to the accused of copy of police report and other documents:

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) the police report;

(ii) the first information report recorded u/s 154;

(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its wit nesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub section (6) of Section 173;

(Emphasis given)

(iv) the confessions and statements, if any, recorded u/s 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173;

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused;

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of fur

nishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

A reading of clause (iii) of Section 207 and Section 173(5)(b) of the Code shows that it is only the statements of all those persons, whom the prosecution proposes to examine as witnesses, are to be supplied to the accused and not copies of the statements of other persons who are not sought to be examined by the prosecution.

Mr. Gautam, learned Senior Counsel relying upon S.J. Chowdhary Vs. State, and Santosh Vs. State of Chhattisgarh, urges that the accused is entitled to the copies of the statements of all the persons examined by the Investigating Officer irrespective of the fact whether prosecution proposes to examine them or not. The ratio in S.J. Chowdhary and Santosh is that reading of Section 173(5)(b) and Section 207(iii) would show that the emphasis is on the persons whom the prosecution proposes to examine as its witnesses during trial and not on their statements on which the prosecution proposes to rely for proving charge against an accused person. The distinction is further assured from the expression used �whom� which necessarily refer to the persons. It means that if a statement of a person who is proposed to be examined by the prosecution is recorded more than once, the accused would be entitled to all the statements recorded of that person irrespective of the fact that whether particular statement of that person is relied upon or not by the prosecution.

A combined reading of Sections 173 and 207 of the Code clearly indicates that the Petitioners in this case would be entitled to the statements of the witnesses whom the prosecution proposes to examine and not of the persons whom the prosecution does not propose to examine.

There is no merit in this petition. Dismissed.