BABU LAL Vs. STATE

JUDGEMENT

(1.) THIS matter upon a reference made by a learned Single Judge of this Court arises from a conviction under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (to be hereinafter referred as the Act). The question raised in the case are these: (1) Whether an officer of the Force making an inquiry under Section 8(2) read with Section 9 of the Act is bound to furnish copies of the statements of persons examined by him under Section 173 (4) of the Old Code of Criminal Procedure (Corresponding to Section 207 of the Code of Criminal Procedure, 1973) ? (2) Whether, if it is not obligatory upon the prosecution to supply the copies, an accused, in order to show the contradiction, or inconsistency between the statement of the witness at the trial and what he had stated before the inquiry officer, can call in advance for the copy for the purposes of Section 145 Indian Evidence Act? (3) If the answer to the above is in the negative, in what manner the trial court should act to ensure a fair trial of the accused? (4) Whether an accused not making a request for copies at the trial can complain of material prejudice being caused to him by the non-supply of such copies at the hearing of the appeal?

(2.) SO far as the first question is concerned, the matter is now settled by the decisions of the Supreme Court in Srilal Shaw v. State of West Bengal A.I.R, 1974 S.C. 393; State of U. P. v. Durga Prasad A.I.R. 1974 S.C. 2136 and The Assistant Collector of Customs. Bombay v. L. L. Melwant A.I.R. 1970 S.C. 962, that where the criminal prosecution is instituted on a private complaint, the documents mentioned in sub-clause (4) of Section 173 cannot be made available to the accused. Section 173 is attracted only in a case investigated by a police officer under Chap. XIV of the Code of Criminal Procedure, Copies of the documents cannot be made available to the accused by taking aid of Section 94 also as that section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person. In Durga Prasad' case A.I.R. 1974 S.C. 393 the Supreme Court had the occasion to consider the relevant provisions of the Act and the nature and scope of the inquiry contemplated by Section 8(1) of the Act. Taking the view that an officer conducting an inquiry under Section 8(1) of the Act does not possess all the attributes of an officer incharge of a police station investigating a case under Chapter XIV of the Code. Mr. Justice Chandrachud, speaking for the Court, observed (vide Para 17): ''The officer conducting an inquiry under Section 8(1) cannot initiate court proceedings by filing a police report as is evident from the two provisos to Section 8 (2) of the Act .... The duty cast by proviso (b) on an officer of the Force to make a full report to his official superior stands in sharp contrast with the duty cast by Section 173 (1) (a) of the Code on the officer-in-charge of a police station to submit a report to the Magistrate empowered to take cognizance of the offence. On the conclusion of an inquiry under Section 8(1), therefore, if the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he must file a complaint under Section 190(1) (a) of the Code in order that the Magistrate concerned may take cognizance of the offence." Further in para 23 it was said: "The High Court was therefore in error in holding that statements made during the inquiry under Section 8(1) of the Act are on a par with statements made during the course of an investigation, that Section 162 of the Code applied with full force to the inquiry proceeding and that in taking signatures of witnesses on the statements made by them the inquiry officer had committed a flagrant violation of Section 162 of the Code."

(3.) SECTION 9 of the Act empowers the officer of the Force to summon any person to give evidence or to produce a document or any other thing in any inquiry which he may be making for any of the purposes of the Act. Sub-section (4) provides that every such inquiry shall be deemed to be a "judicial proceeding" within the meaning of SECTIONs 193 and 228 of the Indian Penal Code. It is under the authority given by subsection (4) that the Officer of the Force can take evidence and record statements. If the statement, which is recorded by an officer of the Force in the exercise of his powers under this section, be an acknowledgment of guilt, it will be too much to say that the statement is made to police office since a police officer never acts judicially and no proceeding before a police officer is deemed under any provision, so far as we are aware, to be a judicial proceeding for purposes of SECTIONs 193 and 228, Penal Code or for any other purpose. The statement of a witness recorded during the course of the inquiry being a former statement made by the witness before an authority legally competent to investigate the fact regarding the alleged commission of the offence may be proved in order to corroborate his testimony at the trial: See SECTION 157 of the Indian Evidence Act. The prosecution may, with the leave of the court under SECTION 154 of the Evidence Act, cross-examine the witness with reference to the statement recorded by the inquiry officer in the event of the witness appearing to be hostile or exhibiting an interest "adverse" to the prosecution. And when the prosecution seeks to avail of the statement of the witness for the purposes aforesaid, the accused shall be entitled to the copy of such statement to enable him to lay foundation for impugning the credibility of the witness.