State vs Jivanlal M. Thakore

Chhatpar, J.—This revision application is to revise an order of the First Class Magistrate, Rajkot, ordering the prosecution to supply copies of statements of witnesses recorded u/s 162 of the Code of Criminal Procedure to the accused in advance. The learned Magistrate says:

Of course the accused is not entitled to have such copies in advance, but I think it would not be wrong to order the prosecution to supply these copies before the case begins.

The question of making available to the accused copies of statements u/s 162, Code of Criminal Procedure has come before the High Court and there is divergence of opinion as to the stage at which the accused would be entitled to get such copies. The first proviso to Section 162 states:

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....

And the second proviso says:

If the Court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such (SIC) (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused.

It would be observed that the right of the accused to get a copy of the previous statement of a witness comes into being only when the witness "is called" for the prosecution and secondly that the Court has to refer to such statement under the first proviso and under the second proviso may refuse a copy of the statement or a part thereof.

Now ordinarily a witness is said to be called when he is summoned to give evidence, but the word "called" is to be read, in conjunction with these two provisos which contemplate the Court not only to refer to the statement but also to consider whether any part of it is not relevant or that its disclosure is not essential in the interest of justice or is inexpedient in the public interest. Ordinarily this would happen at the hearing when the witness is being examined.

So in our opinion an accused is not entitled in advance before a witness comes to the Court to a copy of his previous statement. Some High Courts seem to be of the view that copies may be given to the accused in advance, while Ors. hold that the right to get a copy of the previous statement accrues to the accused only when the examination-in-chief of the witness is over and cross-examination begins. The third view held by some High Court decisions and which appeals to us is that the accused becomes entitled to a copy of the previous statement of a witness the moment he enters the witness box for being examined.

We think this interpretation of the section to be more reasonable as the accused may not follow intelligently the extent to which the witness is speaking the truth while he is being examined in chief, if the accused is kept in dark about the previous statement of the witness till the examination-in-chief is over. This view is also more practical as adjournments may be avoided, we therefore hold that a copy of a statement u/s 162 should be made available to the accused, subject however to any objection under the second proviso, when the witness enters the witness-box for his examination-in-chief by the prosecution. Ordinarily in the interests of speedy disposal of cases, it should be a matter of adjustment between the prosecution and the accused that the former should supply to the latter copies beforehand, otherwise if the strict procedure provided by Section 162 is followed, there would be interminable delays, as at every examination of a witness the accused might be entitled to ask for an adjournment to study the previous statement of the witness and begin his cross-examination thereafter. Some co-operation between the parties inter se and the Court is necessary for the smooth working of Section 162. But where the prosecution for some reason or the other refuses to give copies to the accused, the Court must be bound to follow the provisions of Section 162 and it is only at the stage when the witness enters the witness-box that the accused can insist upon a copy of his previous statement being given to him.

Under the circumstances, we grant this revision application and set aside the order of the Magistrate.

Shah, C.J.

I agree.