STATE OF BOMBAY Vs. SEIKH KADAR SEIKH AMIR

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge, Khamgaon, recommending that the order passed by the Magistrate Second Class, Khamgaon, ordering that the statements of witnesses recorded by the police in the investigation of a non-cognizable offence under Section 22 of the Cattle Trespass Act should not be made available to the accused who are being prosecuted on charges under Section 379, Indian Penal Code, and Section 22, Cattle Trespass Act, should be set aside. The learned Magistrate held that the statements could not be made avilable to the accused because the offence under Section 22, Cattle Trespass Act, was a non-cognizable offence and could not be investigated by the police without the persmission of the Magistrate. The learned Additional Sessions Judge has, however, held that this ground stated by the learned Magistrate is not correct because under Section 145 of the Evidence Act a witness can be contradicted by his previous statement made by him to the police in the course of the investigation even if a Police Officer was not competent and had no jurisdiction to record that statement. The learned Additional Sessions Judge relied on Ramkishun Sao v. Emperor, AIR 1946 Pat 82 where itwas observed that

(2.) The reference is opposed both by the learned Special Government Plader for the State, and also by the learned counsel for opponent No. 4. There is no duty cast on the police to give copies of the statements taken by them in the course pof the investigation except as provided in sections 162 and 173, Criminal Procedure Code. Section 162, Criminal Procedure Code, applies only to the use of a statment made to the police in the course of the investigation under Chapter XIV, Criminal Procedure Code, at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The view taken by the learned Additional Sessions Judge that under Section 145 of the Evidence Act a wiitness can be contradicted by his previous staatement made by him orally and reduced to writing by a Police Officer not having jurisdiction to record it is no doubt correct, because a witness can always be contradicted by his previous statement to whomsoever made and in whatever manner made. The question however is whether the police can be compelled to give a copy of the statement to the accused during the course of the enquirty or trial against the accused. The statements in question were taken during investigation of a non-cognizable offence under Section 22 of the Cattle Trespass Act. It is, therefore, contended that Section 162 has no application because the investigation was not of a cognizable offece under Section 157, Criminal ProcedureCode. But under Section 155, Criminal Procedure Co9de, which is in Chapter XIV f the Criminal Procedure Code, a Police Officer can investigate a non-cognizable offence under the orders of a magistrate. In this case, as the statements of witnesses were recorded in the course of investigation o a non-cognizable offence uder the Cattle Trespass Act, it will ordinarily be presumed that the official acts were regularly done and not irregularly done. The presumption is therefore that he investigation of the non-cognizable offence was done under Section 155, Criminal P., C., with the permission to the Magistrate. In my opinion, even if the investigation was without the orders of a Magistrate, as it purprted to be an investigation by the police under Chapter XIV, the provisions of Section 173 Criminal P. C. would apply and the accused will be entitled to the statements recorded under Section 161, Criminal P. C. of all witnesses whom the prosecution wishes to examine as its witnesses. It is also the duty of the Apolice Officer to helpin the administration of justice, and if the evidence of witness is liable to be contradicted by the statement made by him previosly to the police officer, it is the duty of such police officer to provide such a statement for the proper administration of justice.

(3.) I, therefore, accept the reference of the learned Additional Sessions Judge, set aside the order passed by the learned Magistrate and order that copies of the statements of the prosecution witnesses taken by the police in the course of the investigation of th offence under Section 22, Cattle Trespass Act, be supplied to the accused.