EMPEROR Vs. SHAIKH USMAN SHAIKH UMAR

JUDGEMENT

(1.) In this case, the accused Shaikh Usman Shaikh Umar was tried on charges under Secs.277 and 295 of the Indian Penal Code. He was convicted by the Second Class Magistrate, Nandurbar, and the convictions and sentences have been upheld by the District Magistrate, West Khandesh.

(2.) It appears that on December 14, 1926, the prosecution case was finished, the charge was framed, and after the examination of the accused the ease was adjourned to December 22, 1926. On December 15, 1926, an application was made on behalf of the accused requesting that he should be furnished with the copies of the statements of the witnesses on behalf of the prosecution under Section 162 of the Criminal Procedure Code as he had to cross-examine the witnesses on December 22, 1926, and stating that he would not be in a position to cross-examine the witnesses unless the copies were given to him, The Police Prosecutor made an endorsement on the application that he objected to the copies being granted as there was nothing on the record to show that the statements of any of the witnesses were recorded by the Police. The learned Magistrate on December 22, 1926, made an order that under the circumstances no copies could be granted.

(3.) It is urged on behalf of the accused that he was entitled to get copies of the statements of the witnesses on behalf of the prosecution under Section 162 of the amended Criminal Procedure Code. Under Section 162, no statement made by any person to a Police-officer in the course of an investigation or any record thereof in the Police diary or otherwise or any part of such statement or record shall be used for any purpose at any inquiry or trial. The first proviso deals with the case where witnesses are called for the prosecution whose statements have been taken down in writing . as aforesaid. Under the proviso, the accused has to make a request to the Court and the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872. Under the old Criminal Procedure Code, the accused was not entitled to obtain a copy of such statement, and it was left to the discretion of the Court, if the Court thought it expedient in the interest of justice, to direct that the accused be furnished with copies of the statements. Under the second proviso to Section 162, if the Court is of opinion that any part of such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interests, the Court shall record such an opinion and exclude such part from the copy of the statement furnished to the accused. Under the new Criminal Procedure Code, subject to proviso 2, the accused is entitled to a copy of the statement under Section 162 for the purpose of contradicting the prosecution witness in the manner provided by Section 145.