HAMID KHAN Vs. EMPEROR

JUDGEMENT

(1.) 1. The principal contention in this application in revision is that the trial of the applicant under Section 325, I.P.C. is vitiated by the refusal of the trying Magistrate to grant him copies of the statements of the prosecution witnesses recorded in the police diary under Section 162, Criminal P. C. P.Ws 1 to 4 were examined in the Magistrate's Court on 21st December, 1931. The applicant was examined and a charge framed against him on that day. The next morning an application was made on his behalf by his pleader that copies of the statements of the first four prosecution witnesses made in the police diary be given for the purposes of contradicting these witnesses during the cross-examination after the charge. The cross-examination had been reserved till the framing of the charge. The Magistrate passed the following order: The depositions of these witnesses are not in the form of statements in the police diary and hence the request is rejected. This be filed in the case.

(2.) THE cross-examination of the witnesses then proceeded on that day and the applicant was convicted. In appeal the conviction of his co-accused was set aside and the contention now made before me formed one of the grounds of appeal by the present applicant. On that the District Magistrate in his appellate judgment wrote as follows: In para. 5 of his grounds of appeal, counsel for the appellant claimed that the trying Magistrate was wrong in law in refusing to grant copies of the statements to police of the prosecution witnesses, in the police diary, under Section 62 (sic), Criminal P. C., and that the appellants have been consequently prejudiced. The trying Magistrate however had refused the request, vide his order dated 20th December 1931 (this should obviously be 22nd December 1931), on the ground that the depositions were not included in the police diary in the form of statements. His order appears to me to be correct.

(3.) THIS witness also then proceeded to give a detailed account of what he saw. There is a slight variation in the commencement of the entry concerning Bhada which begins: On inquiry it was known from Bhada, son of Kalu Gond, aged 45 years of Deori Khurd, that on the day of the occurrence he had laid a shop of fried fishes at Khar Bazar; and then follows again a very long and minutely detailed story of the event. Except for the fact that the statements are recorded in oratio obliqua and not in oratio recta they are statements taken down verbatim and not even a condensed memoranda of statements made under Section 161, Criminal P. C. On being called on to show cause why the conviction should not be set aside the District Magistrate appended a report by the trying Magistrate with which he expressed agreement, and in explanation of his order which is now challenged the trying Magistrate states: Section 162(1), Criminal P. C., entitled an accused person for copy of statement of witnesses in the police diary if there be any. Section 172(2), Criminal P. C., lays down that the police diary is a privileged document and the accused or his agent has no right to call for it or see it. Since the case diary contained no statements of prosecution witnesses and formed simply a record of facts and circumstances ascertained from time to time, it became a privileged document. Thus accused or his agent was therefore deprived of the privilege of getting the copies and as such application for copies was rejected.