State vs Palaniswamy Vaiyapuri

V.A. Naik, J.—We will now consider another line of argument pursued by Mr. Kode viz., that there have been material irregularities in the investigation resulting in serious prejudice to the defence of the accused. Mr. Kode contended that the accused is entitled to the copies of all the statements recorded in the course of the investigation u/s 161 or section 174 Criminal Procedure Code. In that connection, he relied upon the wording of section 173 (4) , Criminal Procedure Code, which runs as follows:

After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded u/s 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded u/s 164 and the statements recorded under Sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

Mr. Kode argued that this obligation is not confined to the statements recorded u/s 161, Criminal Procedure Code, but must also extend to the statements recorded u/s 174 Criminal Procedure Code, for the simple reason that the proceedings u/s 174 are also in the nature of investigation. For this purpose he relied upon the definition of the word ''investigation'' contained in section 4 (1) , Criminal Procedure Code, which runs thus:

(1) ''investigation'' includes all the proceedings under this Code for the collection of evidence conducted by a police-officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

The word ''inquiry'' has been defined in section 4(k) , Criminal Procedure Code, as follows:

(k) ''inquiry'' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.

Mr. Kode, therefore, contended that if the inquiry is conducted by any person other than by a Magistrate or Court and the purpose of that inquiry is to collect evidence, then it amounts to investigation. In this connection, he drew our attention to the wording of section 174 Criminal Procedure Code, under which Sub-Inspector Kumbhojkar had started the inquiry into the causes of death of the deceased and in the course of which statements of several witnesses came to be recorded. section 174, (1) , Criminal Procedure Code, runs thus (relevant part quoted):

The officer-in-charge of a police-station-.on receiving information that a person-

(a) has committed suicide, or

(b) has been killed by another, or by an animal, or by machinery or by an accident, or

(c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, shall proceed to the place whore the body of such deceased portion is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death.

Mr. Kode emphasized the use of the word ''investigation'' in the sub-section whereas the head-note of the section has used the word "inquire". Mr. Kode argued that it is settled law that the head-note does not afford a sure guide for interpretation of the main section. Evidently, the word ''inquire'' in the head-note appears to have been used in a loose sense. The word ''inquiry'' has been defined in section 4(k) , Criminal Procedure Code, as a proceeding before a Magistrate or Court. Actually, in the body of the section, the word used is ''investigation''. Although, therefore, we agree with Mr. Kode that the proceedings u/s 174, , Criminal Procedure Code also amount to investigation, that does not mean that he would be entitled to the copies of the statements recorded u/s 174 , Criminal Procedure Code. In terms, the provisions of section 173 (4) , Criminal Procedure Code do not apply to the statements recorded u/s 174, Criminal Procedure Code. Section 173 (4) , Criminal Procedure Code contemplates furnishing of copies of the following documents:

(1) Report forwarded under sub-section (1);

(2) The first information report recorded u/s 154;

(3) All other documents or relevant extracts thereof on which the prosecution proposes to rely;

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

(5) Statements recorded under sub-section (3) of section 161 of all the persona whom the prosecution proposes to examine as its witnesses.

The case of the statements recorded u/s 174 , Criminal Procedure Code, does not fall under any of the five categories listed above. Obviously, it does not fall under "all other documents or relevant extracts thereof on which the prosecution proposes to rely", because a statement of a witness recorded by the police is not a document on which the prosecution can ever rely. It is immaterial whether such a statement is excluded u/s 162, Criminal Procedure Code or not. It is significant to note that sub-section (4) of section 173 , Criminal Procedure Code refers to statements recorded u/s 161 Criminal Procedure Code and not to statements recorded u/s 174, Criminal Procedure Code. If we examine the scheme of the provisions of Chapter XIV, Criminal Procedure Code, we will find that two categories of investigation have been contemplated under that Chapter. The first category of investigation begins with information in cognizable cases referred to in section 164 , Criminal Procedure Code. This investigation comes to an end when a charge-sheet or a challan is submitted u/s 173 Criminal Procedure Code. The end of the investigation, which begins from the first information is the submission of a final charge-sheet. The provisions of section 174 and section 175, Criminal Procedure Code lay down a complete procedure by itself for the purpose of investigation, which starts on information relating to suicide or accidental death or death under suspicious circumstances. The object of section 174 ,Criminal Procedure Code is not to submit a challan or a charge-sheet. All that the officer in charge of a police station who has started the investigation u/s 174 Criminal Procedure Code is required to do is that he has to submit a report of the inquiry made by him. It is significant to note that there is a special provision made in section 175, Criminal Procedure Code enabling the police officer to issue summons to persons for making statements before him in the course of the inquiry u/s 174 Criminal Procedure Code. Had there been no difference between the investigation commencing u/s 174 Criminal Procedure Code and the investigation commencing on the information u/s 154, Criminal Procedure Code, there was no need of making a special provision u/s 175, Criminal Procedure Code about the power of the police officer to summon persons. Section 161, Criminal Procedure Code empowers a police officer to examine any person orally and the person so called shall be bound to answer all questions relating to the case. The provisions relating to an investigation started on the basis of information in cognizable cases are elaborate and culminate in the submission of a final charge-sheet. Section 164, Criminal Procedure Code also finds place in the scheme of investigation started on the first information. On the other hand, all that section 174 (5), Criminal Procedure Code provides is that certain Magistrates mentioned therein shall hold inquests. This appears to be the only power vested in the Magistrates when an inquiry is commenced u/s 174, Criminal Procedure Code. In other words, the provisions of sections 174 and 175 afford a complete and autonomous code in itself for the purpose of inquiries in cases of accidental or suspicious deaths u/s 174 Criminal Procedure Code. That being the case, the accused would not be entitled to ask for copies of su ch statements as a matter of right u/s 173 (4) , Criminal Procedure Code, so far as the statements of witnesses examined in the course of the inquiry instituted u/s 174 Criminal Procedure Code is concerned. We do not, therefore, think that any illegality has occurred in this case by reason of the fact that copies of the statements recorded in the investigation u/s 174 Criminal Procedure Code have not been supplied to the accused.

Mr. Kode then contended that assuming that the accused was not entitled to the copies of the statements recorded u/s 174, Criminal Procedure Code under the provisions of section 173 (4) , still, in the interest of a fair trial, copies ought to have been furnished to the accused in proper time to enable the counsel to embark upon the cross-examination of various witnesses. He further argued that great prejudice has been caused to the accused and in fact there is failure of justice on account of the copies of the statements not having been supplied to the accused in proper time. Before pronouncing our verdict on this aspect of the matter, it is necessary to investigate some more facts. We notice that the statements of as many as six witnesses were recorded only u/s 174 , Criminal Procedure Code and not u/s 161 Criminal Procedure Code These witnesses are, Sushila Subramaniam (P. W. 1); Kamatan K, Venkataswami (P. W. 3); Shaikh Abdul Karim (P. W. 4); Shri-krishna Pingale (P. W. 11); Bhaskar Jadhav (P. W, 12) and Namba Gounder (P. W. 16). It is, however, noteworthy that copies of these statements recorded u/s 174 , Criminal Procedure Code were supplied to the accused. The accused, therefore, can hardly have any ground for grievance on the score that proper opportunity has not been provided to him for making preparations to cross-examine these witnesses. At the same time, Mr. Kode pointed out that the statements of witnesses recorded u/s 174, Criminal Procedure Code have riot been entered in the station diary. These statements were recorded on loose sheets of paper. He argued that, in the first place, this is a serious irregularity and in the second place, there is no guarantee that the statements have not been tampered with. In this connection, it is necessary to refer to section 172, Criminal Procedure Code, which relates to the diary of proceedings in investigation. That section runs thus (only relevant part quoted):

(1) Every police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

Mr. Kode contended that the obligation to maintain a diary is not confined to an investigation in the course of which statements are recorded u/s 161, Criminal Procedure Code but must also extend to an investigation u/s 174,A , Criminal Procedure Code. He emphasized the expression "investigation under this Chapter" in sub-section (1) of section 172, Criminal Procedure Code, which expression, according to him, includes an investigation u/s 174, Criminal Procedure Code as well. We have already held that the provisions of sections 154 to 173 Criminal Procedure Code fall in one category whereas the provisions of sections 174 and 175, Criminal Procedure Code, fall in a separate category. The provisions of section 172, Criminal Procedure Code, therefore, do not apply to an inquiry or investigation started u/s 174 Criminal Procedure Code. In this connection, reference must be made to Rule 225 (5) in Chapter VI of the Bombay Police Manual, Vol. III, 1959, at page 228. Rule 225 relates to ''Case Diary of the Investigating Police Officer''. Sub-rule (5) of the said rule runs thus:

Case diaries should be maintained in cognizable cases and in inquiries u/s 174, Criminal Procedure Code, and in the latter case, after verification, if the inquiries were first made by Polico Patels.

It is true that under this sub-rule case diaries in regular investigations as also case diaries in inquiries u/s 174 Criminal Procedure Code have been placed on the same footing and the sub-rule says that case diaries should be maintained in both cases. The provisions in the Police Manual do not have the force'' of a statute. Although, therefore, it is desirable that a case diary should be maintained even in respect of an investigation u/s 174, Criminal Procedure Code it would not be correct to suggest that it is obligatory on the part of the police officer to maintain such a diary in respect of investigation u/s 174 Criminal Procedure Code. Failure to maintain such a diary would not amount to an illegality. At best, it may be an irregularity. Even assuming that it is an illegality, it does not follow that the trial is vitiated. It is well settled that breach of every obligation does not entail the consequence of vitiating the trial. In addition to a breach of a statutory provision, it must be established that prejudice has been caused to the accused as a result of that breach. It is suggested, for the first time, in the course of the arguments here that there is likelihood of the statements having been tampered with by reason of the fact that no diary has been maintained. No suggestion was made at any stage either to Kumbhojkar or Thakre that there has been any kind of fraud or fabrication committed in the course of the investigation. The allegations of fraud or fabrication are of a serious character and they must be made at the proper time and put to the witnesses so that the witnesses would have an opportunity of offering an explanation in respect of the same. We have already pointed out that although no diary has been maintained, copies of the statements of six witnesses were supplied to the accused along with the submission of the charge-sheet. It is idle to suggest that, at any rate, with respect to the statements of those witnesses, whose copies were furnished, there was any possibility of tampering with those statements.

Proceeding further with the investigation of the factual position, we notice that in respect of six more witnesses, statements were recorded both u/s 161, and also section 174, Criminal Procedure Code. These witnesses are Mahaling Bidwe (P.W.6); V. Y. Kulkarni (P.W.7); Mahomed Hussein (P. W. 8); Mahomed Nazir (P. W. 9); V. P. Kulkarni (P. W. 10) and Shrikrishna Pingale (P. W. 11). Copies of the statements of these witnesses recorded u/s 174, Criminal Procedure Code, were not supplied to the accused. It is only copies of statements of these witnesses recorded u/s 161 Criminal Procedure Code that have been supplied to the accused. So far as Mahaling Bidwe (P. W. 6) is concerned, his statement recorded u/s Criminal Procedure Code was shown to the cross-examining counsel almost at the close of Bidwe''s cross-examination. Advocate Nair, who represented the accused at the trial, did not know Marathi as the statement was recorded in Marathi. The statement, therefore, was translated for the benefit of advocate Nair and thereafter advocate Nair declined to embark upon any further cross-examination of that witness. It would have been better had the copies of the statements of all the witnesses recorded u/s 176 Criminal Procedure Code, been furnished in proper time to the accused. At the same time, we cannot forget that it was open to advocate Nair to request the Court to grant him time to prepare himself for cross-examining the witness with reference to the statement, a copy of which was supplied at the fag end of the cross-examination of Bidwe. So far as V. Y. Kulkarni is concerned, the copy of his statement recorded u/s 174, Criminal Procedure Code, was shown, to advocate Nair, while he was cross-examining the said witness. The cross-examination was postponed to the next day. But advocate Nair declined to cross-examine this witness further. So far as Mahomed Hussein is concerned, his statement recorded u/s 174, Criminal Procedure Code was shown to advocate Nair, while he was cross-examining the witness. The same position holds good in respect of Mahomed Nazir, V. P. Kulkarni and Pingale. The procedure adopted by the public prosecutor and endorsed by the learned Sessions Judge was not conducive to fairplay and fair trial. That is so particularly in view of the fact that seven days before the trial commenced i.e., on June 15, 1965, advocate Nair had written a letter to the public prosecutor asking for copies of all statements and documents in possession of the police. Copies of all the statements recorded u/s 174, Criminal Procedure Code were not furnished. Some of them, of course, were furnished. But, advocate Nair had no means of knowing whether there were statements of any other witnesses recorded u/s 174, Criminal Procedure Code. No reply was given to this requisition. On the contrary, however, it became clear that the public prosecutor was taking his stand u/s 173(4) , Criminal Procedure Code. The position taken up by the learned public prosecutor was accepted by the Sessions Court and, as stated above, the statements of witnesses recorded u/s 174, Criminal Procedure Code were shown to the counsel during the cross-examination of each of these witnesses. A question was asked to Inspector Thakre to the following effect (p. 152):

Excepting the statements of Bhaskar Tukaram Jadhav. Rajamani, Rajaratnam Sambhandhan, Kumaraswamy, Thorat, Dr. Shivamrutam, Sushila, Miss Kasturi, and copies of the three Panchanamas, have you furnished copies of any other statements recorded u/s 174,?

The learned Sessions Judge disallowed the question saying that the prosecution was not bound to supply copies of the statements recorded u/s 174, Criminal Procedure Code. A further question was asked to the same witness to the following effect:

Have you given any indication to the accused that statements of witnesses were recorded u/s 174, Criminal Procedure Code?

The learned Sessions Judge overruled the question remarking:

I asked Mr. Nair to read Section 173 (4) and I must give him the credit that after reading it, he still persisted in that argument. Section 173 (4) refers to two kinds of statements: (1) statements on which the prosecution proposes to rely and (2) statements recorded under Sections 164 / and 161, Question is disallowed.

The matter does not rest there. There are certain statements of witnesses recorded under section, 174 Criminal Procedure Code which were never made available to the counsel for the accused at all. These witnesses are, Perumai (P. W. 14) and Yeshwant Borkar (P. W. 5). Mr. Kode complained that there were no means for the accused to know that the statements of these witnesses were recorded u/s 174 , Criminal Procedure Code at all. For the first time, Sub-Inspector Kumbhojkar disclosed that Perumai''s statement was recorded u/s 174, Criminal Procedure Code. So far as Yeshwant Borkar was concerned, everybody was in doubt as to whether his statement was recorded u/s 174 Criminal Procedure Code till a very late stage of the arguments. Even the learned Assistant Government Pleader was under the impression that the statement of Borkar was not recorded u/s 174, Criminal Procedure Code. At the end of his arguments, however, he showed us the statement of Borkar which purports to have been recorded on August 23, 1964.

These circumstances clearly disclose a very unsatisfactory state of affairs. There may not be an obligation on the prosecution for supplying copies of statements recorded u/s 174, Criminal Procedure Code, but the interest of fair trial do require that copies of the statements recorded u/s 174, Criminal Procedure Code are made available to the accused at the proper time. That is particularly so when the inquiry u/s 174, Criminal Procedure Code has preceded the investigation and recording of the statements u/s 161, Criminal Procedure Code. The defence is expected to know what was the purport of the statements recorded at the earlier stage. It is, therefore, not fair to withhold the statements recorded at the earliest possible opportunity. At the same time, we do not think that the defence has been prejudiced in any manner by reason of the attitude adopted by the prosecution during the trial. The other reason for supplying copies of the statements recorded u/s 174, Criminal Procedure Code is that if the diary is not maintained, then the prosecution will lay itself open to the charge that the statements have been tampered with or ante-dated. It is, therefore, necessary in the interest of justice that copies of the statements of material witnesses recorded u/s 174, Criminal Procedure Code are supplied to the defence at the earliest possible opportunity. It would not be possible to justify the action or the stand taken in this case on the ground that copies of the statements of important witnesses were supplied to the accused in proper time. It is impossible to suggest that Perumai or Yeshwant Borker are not important witnesses in this case. In fact, Yeshwant Borkar is one of, the most important witnesses and fairness demanded that a copy of his statement should have been made available to the accused at the proper time. Not only no copy was given to the accused but even his statement was not made available during the cross-examination of Yeshwant Borkar. The defence had no means to ascertain whether Broker''s statement had been recorded u/s 174, Criminal Procedure Code. This state of affairs is far from satisfactory. But, as noted above, we do not think that the defence has in any way been handicapped by reason of the stand taken on behalf of the prosecution, and there is no case whatsoever for failure of justice. As Mr. Kode insisted upon a retrial on the ground that the statements of Perumai and Yeshwant Borkar were not made available to the defence and that the witnesses could not be properly cross-examined we thought it fit to peruse their statements recorded u/s 174, Criminal Procedure Code [(vide section 172 (2) Criminal Procedure Code)] with a view to see whether there are improvements made by the witnesses in their depositions before the Court upon the statements recorded u/s 174,Criminal Procedure Code.

We have carefully gone through the statement of Perumai and Yeshwant Borkar recorded u/s 174, Criminal Procedure Code. We do not find any omissions or contradictions, which would materially affect the evidence given by the so witnesses in Court. As a matter of fact, the evidence of Perumai was not of much assistance to the prosecution on the main point as to whether the accused was the perpetrator of the offence. Perumai had already referred to the ornaments which the deceased had on her person in her missing report, which was submitted by her even prior to her statement u/s 174 , Criminal Procedure Code. So far as Yeshwant Borkar is concerned, although he is a material witness, even if his evidence is left aside, there is still voluminous evidence left so far as the identification of the accused during his travel in the train is concerned. We do not, therefore, think that there is any case for retrial on account of these failures and omissions on the part of the prosecution to conform to the highest standards of a fair and just trial.

[The rest of the judgment is not material to this report.]