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 Rail way Property (Unlawful Possession) Act,1966 (to be hereinafter referred as the Act). The questions 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 state ments of persons examined by him under Section 173(4) of the Old Cr. P. C. (Corresponding to Section 207 of the C.P.C, 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 of the purposes of Section 145 Indian Evidence Act ?

(3.) WHAT legitimate use the accused may have of the prior statement made by a witness in the course of inquiry is the question that next falls for our consideration. Learned Counsel for the revisionists has urged that unless they can get the copies of the statements, they will not be in a position to exer cise the right under Section 145 of the Indian Evidence Act. We agree with the learned Counsel that the inconsis tency or contradiction shown to exist between the statement made in the course of inquiry and what the witness has said in the examination-in-chief may affect his credit. But his previous statement cannot be used to get rid of the evidence which is giving unless it is read to him or he is allowed to read it, the obvious reason being to give him an opportunity of explaining the apparent discrepancy. "It is an elementary rule that the contents of a written document, if they are to be proved, should be proved by production of the document and not by oral testimony. In Rescoe's Evidence in Civil Actions, 19th Ed. p. 160, it is stated : "In consequence of the general rule that the contents of a written document ought to be proved by the production of it, and not by oral testimony, it was held in the Queen case, 2Br. & B. 28 that it was not competent to ask a witness, even on cross-examina tion about a statement formerly made by him in writing without showing to him the writing referred to and putting it in evidence as part of the case of the cross-examining party either immediately or in the ordinary course of the cause ; and this opinion of the judges has been since constantly acted upon, whether the question be put merely to discredit the witness by contradicting him, or as con ducive to proof of the matter in issue" See Rex v. Anderson(The Law Times Report Volume 142 Page 580.). This being so but the accused cannot have the right to see the statement of a witness examined by an "Officer of the Force" when neither the Act bestows such right upon nor does Section 145 Indian Evidence Act make an express provision for the issue of the copy. A statement recorded by an officer of the Force is not a public document within the meaning of Section 74 of the Evidence Act-See Isab Mandal v. Queen Empress(I.L.R. 28 Cal, 348)and there fore, the accused cannot claim to get copies of the statement in advance. There is no rule which in our opinion, touches such a case or which in any way recognize such a right. Accordingly we answer the second question in the negative.