STATE Vs. GIAN SINGH

JUDGEMENT

(1.) The facts, so far as they are relevant for the decision of this petition, are stated in my order of July 29, 1980, by which I had referred the case to a larger Bench. Before analysing the rival contentions, the two questions, which were formulated for considerations, may be noted :

(2.) Bawa Gurcharan Singh, learned counsel for the respondent has fairly conceded before us that the accused would be entitled to copies of those documents during investigation of the case only if the documents are held to be public documents. He, Therefore, limited his arguments to the first question. Mr. Dinesh Chand Mathur learned counsel for the petitioner, besides controverting the submission on that question, urged that even if the documents are held to be so, the accused -respondent is not entitled to receive copies of the same till such time a report under S. 173 of the Code is filed by the prosecution. He further submitted that in any case the learned Magistrate was incompetent to direct the Investigating Agency to supply copies of those documents as he was not the custodian of the original three reports, two post -mortem reports and one medico -legal examination report, which contain the observations as well as the opinion of Dr. Bharat singh, the police surgeon who performed the autopsy. It is the admitted case of the parties that the original reports were forwarded by the police surgeon to the Investigating Officer and they continue to be in his custody. According to Mr. Bawa, the reports of Dr. Bharat Singh squarely fall within the purview of S. 74 of the Evidence Act. The post -mortem was conducted by Dr. Bharat Singh in his capacity as a public officer and his reports recording his findings or observations are a record of that official Act. The documents are thus covered by Clause (iii) of sub -section (1) of S. 74 which reads as under : -

(3.) To appreciate the submissions made by the learned counsel for the parties, the provisions enabling the Investigating Officer to seek post -mortem report may be noticed.