COLLECTOR S J CHOUDHARY Vs. STATE

JUDGEMENT

(1.) By means of this petition brought under Section 482 of the Code of Criminal Procedure (for short the Code) the petitioner Col. S.J. Chowdhary has challenged the correctness of the order dated 20-12-83 of Sh. K.C. Lohia, Metropolitan Magistrate, New Delhi whereby the application dated 12-12-83 of the petitioner for being supplied copies of statements of prosecution witnesses and documents relied upon by the prosecution had been disallowed.

(2.) The petitioner was arrested in the case under Sections 120-B/302 I.P.C. and under Sections 3,4 and 6 of the Explosive Substances Act. Challan was submitted in Court on 28-10-83 and the documents as required under Section 173 of the Code were furnished to the accused-petitioner but, it is alleged, on scrutiny of documents he found that most of the documents, statements and exhibits relied upon by the prosecution to prove the charge against him had not been furnished to him which necessitated the making of the aforesaid application, dated 12-12-1983 to the learned committing magistrate Sh. K.C. Lohia, Metropolitan Magistrate.

(3.) It is urged by the learned counsel for the petitioner that a number of witnesses have been cited for the prosecution in this case and the statements of some of them have been recorded by the Investigating Agency more than once and some of those statements have been recorded in the police diaries and the copies of those statements have not been furnished to the accused-petitioner whereas it was his right to the supply of the same inasmuch those are nevertheless statements contemplated under Section 161(3) of the Code and no privilege is open to the prosecution in regard to the matter of supply thereof simply on the ground that the same find set out in the police diaries maintained under Section 172 of the Code and for that reason the order of the learned committing magistrate was wrong. Under Section 161 of the Code a police officer making an investigation of a case may examine orally any person supposed to be acquainted with the facts and circumstances of the case and under Sub-section (3) thereof he "may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records." Then the wording of Section 162 of the Code is very significant as the same goes to show that such statements of the witnesses examined during investigation by a police officer may be recorded by him in a police diary or otherwise making it abundantly clear in an unmistakable manner that the statements of witnesses during investigation can be recorded by a police officer not only on ordinary sheet of paper but even in police diary. It looks desirable to set out the relevant portion of Section 162 of the Code and the same is reproduced as under :- "Statements to police not to be signed :- Use of statements in evidence-( 1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when sach statement was made: A police diary is normally meant for a police officer investigating a criminal case for recording therein his day-to-day notings regarding the investigation but lie is not debarred from recording the statement of any witness therein. and so the privilege in the matter of calling a police diary by an accused person or his agent contemplated under Section 172 of the Code extends only to the notings recorded by a. police officer therein and not to the supply of copies of the statements of the witnesses recorded therein as those statements would be covered by Sub-section (3) of Section 161 of the Code. Section 172 reads as follows :-