NATABAR JANA Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against an order of Sri J. Sarma Sarkar, Presidency Magistrate, Calcutta, rejecting an application for copies of certain statements in the Police Diary and directing that the accused may call for the same for inspecting them and using them for cross-examination of prosecution witnesses, with the consequences as stated in Section 163, Evidence Act. The accused petitioner along with other accused were placed on trial before the learned Magistrate in respect of charges under Sections 147/379, I. P. C. After examination-in-chief of prosecution witnesses the accused petitioners made an application for copies of statements of the witnesses as recorded by the investigation officer. The order complained of was then made by the learned Magistrate.

(2.) Mr. Dutt appearing for the petitioner has urged that the record of the statement of a witness made by the police officer is a public document within the meaning of Section 74, Evidence Act, and that the accused has the right to inspect it because the accused is given under Section 145, Evidence Act, the right to use any previous statement for the purpose of contradiction and under Section 76, Evidence Act, he has right to get certified copy of any public document which he has the right to inspect. The argument turns on the proposition that the evidence of a witness recorded by a Police Officer in course of investigation is a public document within the meaning of Section 74, Evidence Act. There is, however, authority against this proposition. In -- 'Isab Mandal v. Queen Empress', 28 Cal 348 (A), it was held that a written statement recorded by a police officer in the course of investigation did not come within the description of a record within the meaning of Section 35, Evidence Act. If the statement as recorded by the police officer is not a record within the meaning of Section 35, Evidence Act, it follows that it cannot be a public document within the meaning of Section 74. Further in -- 'Govt. of Bengal v. Santiram Mandal', AIR 1930 Cal 370 (B), it was held that records of statements made not on oath in course of a departmental enquiry by a government officer, were not public documents. This was not a case of recording of a statement by a police officer, but the recording of a statement by a police officer in the course of investigation would be analogous to the recording of a statement in the course of a departmental enquiry by a government officer. Accordingly, the proposition on which Mr. Dutta rested his argument cannot be accepted as correct. It .must be held that the record of a statement of a witness made by a police officer in the course of investigation is not a public document. It is of course clear that the accused is vitally interested in inspecting such a record of a previous statement made by a witness, because under Section 145, Evidence Act, the accused has a right to contradict a witness with reference to a previous written statement or a statement reduced into writing made by him. Mr. Dutta has urged that if the accused has no right to obtain a certified copy under Section 76, Evidence Act, the trying Magistrate should under Section 165, Evidence Act, call for and inspect the record of the statement made in the course of a police investigation and allow the defence to use the same for the purpose of cross-examination; as in that case the accused might avoid the liability to give the entire record as evidence which might attach to him if he called for the document under Section 163, Evidence Act. Under Section 165, Evidence Act, no doubt the Judge may call for the record of the statement of witnesses made by the police officer during investigation, but he is not bound to do so, and if the accused wants to be certain of using the statement of the witnesses as recorded by the police officer, the accused must call for them under Section 163, Evidence Act. In the case cited before, viz., AIR 1930 Cal 370 (B), it was held that Section 163, Evidence Act, is applicable to criminal trials as well 93 to civil actions. The procedure was approved in that case that in a criminal trial the accused should call for any previous statement that might be in the possession of Government or a Government Officer under Section 163, Evidence Act. Mr. Dutta's only objection is that if the accused calls for the document under Section 163, he must take the consequence stated in Section 163, Evidence Act, i. e. if the party producing the document requires the accused to do so, he would be bound to give the document in evidence. This clause of Section 163 should, however, be under-stood as subject to the remaining provisions of the Evidence Act, and at a trial only documents which are relevant under the provisions of the Evidence Act can be used as evidence. In respect of the record of the previous statement of a witness, such portion of it only would be relevant as is actually used for the purpose of contradicting under Section 145, Evidence Act or corroboration under Section 157 Evidence Act. If the prosecution wants to corroborate a particular witness on a particular point with reference to his previous statement before the investigating officer, the prosecution in the Presidency town of Calcutta is in any case entitled to dp so even apart from the provisions of Section 163, Evidence Act. If the prosecution does not want to use any portion of the previous statement for corroboration, the prosecution naturally will not require the accused to put the document in evidence. Therefore in a criminal trial the liability of the party calling for a document to give the same in evidence if so required, means very little, and it really does not impose any additional liability on the accused. It should be remembered that we are now concerned with the Presidency town and not with the rest of the State outside the Presidency town.

(3.) Mr. Dutta has raised another point viz., that under the Calcutta Police Act, 1866, the term 'investigation' is given the same meaning as in the Criminal Procedure Code (vide Section 3, Calcutta Police Act), and in Section 4(e), Criminal P. C. 'investigation' is defined to include all proceedings under the Code for the collection of evidence conducted by a police officer or by any person 'other than a Magistrate who is authorised by a Magistrate in this behalf. Mr. Dutt has urged that since 'investigation' includes all proceedings under the Criminal Procedure Code, Chapter 14 of the Code relating to Investigation would apply also to the Calcutta Police. It is, however, not possible to accept this contention. Section 1(2), Cr. P. C., provides that the Code does not, in the absence of any specific provision to the contrary, apply to the Police in the town of Calcutta, i. e., in the Presidency town of Calcutta. Accordingly, so far as .the Calcutta Police Act, is concerned, the term 'investigation', must be understood to mean 'investigation' including all the proceedings under the Criminal Procedure Code as applicable to Calcutta; unless any part of the Criminal Procedure Code has been directly made applicable to Calcutta by a Government notification under the proviso to Section 1(2) Cr. P. C., that, portion of the Criminal Procedure Code cannot; be held to apply to the Calcutta Police.