KANBI RANCHHOD HARJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application has been filed by the petitioner against the order of the learned Sessions Judge Banaskantha dismissing the revision application filed by him against the order of the learned Judicial Magistrate First Class Deesa rejecting his application for production of a statement of witness recorded by the police from the custody of the learned police prosecutor.

(2.) The facts giving rise to this application raises an important question of law. The present petitioner is being tried before the learned Judicial Magistrate First Class Deesa for offences under secs. 304A 279 and 337 of the Indian Penal Code. After the prosecution evidence was over the accused entered his defence and examined some witnesses. As the prosecution did not examine certain witnesses who according to the defence were material they were called as defence witnesses. One of such witnesses did not support the defence version. According to the petitioner the said witness seemed to have been won over by the prosecution. He therefore gave an application to the Court requesting that the learned police prosecutor be asked to produce the statement of the witness recorded by the investigating officer under sec. 94 of the Criminal Procedure Code. After hearing both the sides the learned Magistrate rejected the said application Against that order of the learned Magistrate a revision application was filed before the learned Sessions Judge of Banaskantha who dismissed the said application. Against the said order this revision has been preferred to this Court.

(3.) Mr. A. K. Mankad learned advocate for the petitioner submitted that under sec. 94 of the Code of Criminal Procedure he was entitled to the production of a document in the custody of the learned police prosecutor in the interest of justice. He urged that even the statement recorded by the police could be used by the defence for the purpose of contradicting a witness as his previous statement under sec. 145 of the Indian Evidence Act. He urged that it the instant case it may not be open to the prosecution to use the statement of the witness recorded by the police for cross examining the defence witness; but sec. 162 of the Code of Criminal Procedure did not preclude the defence from utilising such a statement as a previous statement of the witness for the purpose of cross examining him as laid down in sec. 145 of the Indian Evidence Act. In my opinion it is difficult to accept the submissions made by the learned advocate for the petitioner. It may be noted that a statement of a witness recorded by the police during the course of the investigation could be used only for a limited purpose as laid down in sec. 162 of the Code of Criminal Procedure.