STATE OF KERALA REVISION PETITIONER Vs. RAGHAVAN

JUDGEMENT

(1.) THE revision is by the State, and is directed against an order of the learned Additional Sessions Judge, Ernakulam, made in Criminal m. P. 525 of 1973 in Sessions Case 30 of 1973. THE respondents herein, who were the petitioners (accused) before the Sessions Court had in and by the said Crl. Miscellaneous Petition, prayed that they might be given a copy of the statement recorded on 14-2-1973 from C. W. 2 Viswambharan by the Circle Inspector of police, Shertallai, during the course of investigation. THE objection of the state to the grant of the copy was on the ground that the prosecution did not propose to rely on that statement recorded by Circle Inspector, Shertallai, and therefore the accused were not entitled to it. THE learned Additional Sessions judge however, allowed the petition and directed the Public Prosecutor to make available the copy of statement to the accused before the trial commenced. It is the correctness of this order that is being challenged in the revision.

(2.) SRI K. R. Kurup, the learned State Prosecutor, argues that in terms of the provisions contained in Section 173 (4), Cr. P. C. the accused is entitled, as a matter of right, only to the copies of those documents or extracts thereof on which the prosecution seeks to rely. In this case, according to the learned State Prosecutor, subsequent to the questioning of C. W. 2 done by the Circle Inspector of Shertallai, the investigation was taken over by the Crime Branch, and the Detective Inspector, Crime Branch, c. I. D. had questioned the very same witness on 20-2-1973, and it is that investigation made by the Detective Inspector that had culminated in the final report on which alone the prosecution sought to rely in the trial court. The argument therefore, is that it is only copies of those statements on which the prosecution seeks to rely, need be furnished to the accused under the mandatory provisions of Section 173 (4), Cr. P. C.

(3.) THE argument of the learned State Prosecutor cannot be accepted for more reasons than one. THE reasoning that the prosecution does not propose to rely on the statement of the C. W. 2 recorded on 14-2-1973 as mentioned in the remand report dated 16-2-1973 appears to proceed from a basically wrong presumption. For one thing, there is no question of the prosecution relying on statements recorded under sub-section (3) to Section 161, Cr. P. C. THE limited uses of the statement recorded under Section 161 are indicated in Section 162 of the Code. THE prosecution is entitled to make use of such statements only for the purpose of contradicting the witnesses who made the statements and that too with the permission of the court. THEre is therefore, no question of the prosecution exercising a sort of discretion as to rely or not to rely on a particular statement recorded under Section 161 (3), as the prosecution is not entitled to rely on such statements at all as substantive evidence. Moreover, if this argument of the State Prosecutor is to be accepted. It would imply that the prosecution can, at its sweet will and pleasure pick and choose the statements of witnesses in respect of which the copies are to be, or not to be, furnished to the accused to suit its convenience, thus eliminating all chances of the witnesses being confronted with their previous statements inconsistent with or contradictory to the case which the prosecution seeks to establish, which could never be the intention of the legislature. If there are embellishments or contradictions in the statements given by the very same witness on different occasions, the vera-city and trustworthiness of the evidence of the witness have to be tested in cross-examination with the aid of such materials. To deny that would be to deny a just and fair trial to the accused.