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SUPREME COURT OF INDIA
24th April 1957
JAGANNADHA DAS, IMAM AND GOVINDA MENON, JJ.
Gurbachan Singh, Appellant
Versus
State of Punjab, Respondent.
Criminal Appeal No. 48 of 1957.
Advocates appeared
Mr. Jai Gopal Sethi, Senior Advocate (Mr. R.L. Kohli, Advocate, with him), for Appellant; M/s. Jindra Lal and T. M. Sen, Advocates, for Respondent.
Special leave was limited to the question whether the statements taken from the witnesses under S. 161 of the Criminal Procedure Code, in the Course of investigation in the connected case under the Arms Act, should not have been supplied to the accused for the purpose of his defence in the trial for murder and whether the result of the trial had been materially affected thereby causing prejudice to the accused and which could not be cured by S. 537 of the Code of Criminal Procedure.
Held : (1) In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
(2) There is no special rule or direction provided in the Code of Criminal Procedure affording guidance for police officers in recording statements of witnesses and usually what is done is that when a succeeding witness gives practically an identical story as to what a previous witness has stated, it is a matter of common knowledge that the words used by the police officer would be similar or identical.
(3) Sub-section (3) of S. 161 of the Code of Criminal Procedure as inserted by the Code of Criminal Procedure (Amendment) Act, II of 1945, has not undergone any change by the Amendment Act XXVI of 1955, but S. 162 has undergone considerable changes. Whereas there were two provisos in the unamended section, the Act as it now stands, contains only one proviso to sub-section (1). In short, the essential charge is, that at present, .according to the proviso it is open to the prosecution with the permission on lie court to use such a statement in order to contradict a witness in the manner provided by S. 145 of the Evidence Act though before the amendment the prosecution could not make use of any such statement to contradict a witness but could only use any part of the statement other than that used by the defence to contradict a witness, for explaining any matter referred to in cross-examination at the time of re-examination.
(4) There is also the fact that before the amendment the accused had to request the court to refer to the statements made to the police officer and furnish him with a copy thereof in order that the same may be used for contradicting the witness, but as it now stands, no such request is necessary because there is a provision to the effect that copies should be given earlier. Section 173 relates to the report of the police officers, and sub-section (4) is practically a new provision. It is clear from this new sub-section that when the police officer after completing the investigation sends his report to the Magistrate, copies of the statements and documents referred to should• be furnished to the accused. The object of this provision is to put the accused on notice of what he has to meet at the time of the inquiry or trial. The unamended sub, section (4) had only laid down that a copy of the report forwarded to the Magistrate, shall, on application, be furnished to the accused before the commencement of the inquiry Or trial. There was no compulsion to furnish him with copies of the statements, documents etc.
1. Willie (William) Slaney v. The State of Madhya Pradesh, (1955) 2 S.O. R. 1140. A.I.R. 1956 S.O. 116 referred to.
(5) Sub-section (4) of S. 173, read with sub-section (3) of S. 207 A makes ample provision for the defence to be in possession of all the statements and documents before the inquiry begins, but nowhere is it stated other in S. 173 (4) or 207 A (3) that the statements in connected cases should be supplied to the accused. In this connection reference may be made also to S. 251 (A) inserted in Chapter XXI, relating to the trial of warrant cases by Magistrates. Sub-section (I) of S. 251 (A), which corresponds to S. 207 A (3), also makes no reference to the statements in connected cases.
(6) Sub-clause (c) of S. 116 of the Amending Act, XXVI of 1955 lays down, among others that S. 207 A or S. 251 A of the principal Act as .amended by that Act, shall not apply to or affect any inquiry or trial before a Magistrate in which the Magistrate has begun to record evidence prior to the date of such commencement and which is pending on that date. Thus, where the first witness for the prosecution in the committal stage was examined on 3rd December 1955, i,e., before the commencement of the Amending Act on 1st January 1956, and it was not possible to apply 8. 207 A at a time when it was not on the statute book, that provision cannot be invoked to contend that since the initiation of the prosecution was before the committal court, the non-compliance of S. 207 A would vitiate even the trial before the Sessions Court.
(7) Section 174 (4) also has not been given a retrospective effect, and its violation cannot affect the validity of the trial when the stage at which the report of the police to the Magistrate had to be sent had long ago passed.
Judgement
GOVINDA MENON, J.:- Special leave limited to the question whether the statements taken from the witnesses under S. 161 of the Criminal Procedure, Code, in the course of investigation in the connected case under the Arms Act, should not have been supplied to the accused for the purpose of his defence in the trial and whether the result of the trial has been materially affected thereby, was granted by this Court on 19th November 1956, in the petition for special leave to appeal from the judgment and order dated 26th September 1956, of the Punjab High Court in Criminal Appeal No. 407 of 1956. As a result, this appeal now comes up for final disposal.
2. On 12th December 1955, Mukhtiar Singh deceased, borrowed a mare from Wazir Singh (P. W. 5) for the purpose of going to Lakhewali Mandi and rode that animal. Late that night, his body was found on the boundary of a field within the area of Nand Garh, evidently having been murdered and the mare was missing. The father of the deceased made a report at the Police Station Muktsar where the complaint was made at 6 a.m. the next day. Pritam Singh (P. W. 26), who was the Station House Officer, Muktsar, at that time, took up the investigation and proceeded to the spot where he found near the body a bottle, containing a small quantity of liquor and a spent cartridge. It was further proved in the case by the evidence of Kalia (P. W. 10) and Bhag Singh (P. W. 11) that on the evening of the disappearance of Mukhtiar Singh they had seen the appellant drinking liquor in a field near Nand Garh and they had also been invited to join the drink. The further evidence is that of P. W. 14. who had seen the appellant at about 2 p.m. on 12th September 1955, riding the mare which had bean lent to the deceased that day. At about 5 p.m., on 14th September the appellant, riding a mare without a saddle came to the shop of Labh Singh (P. W. 20) in the Village of Ghanga Kalan and asked the witness to prepare some food for him. At about that time a Panchayat was being held in the village of Ghanga Kalan and the Sarpanch and the members of the Panchayat had assembled. Ujagar Singh ( P.W. 23) was on his way to the house of Gian Chand Sarpanch (P.W. 19) for attending the meeting of the village Panchayat when he saw the appellant sitting outside the shop of Labh Singh holding the reins of the mare at which he became suspicious at the presence of a stranger in the village in such circumstances The matter was reported to the other members of the Panchayat, whereupon Gian Chand Sarpanch (P. W. 19), Resham Singh (P. W. 24) and Ujagar Singh (P.W. 23) went to the shop of Labh Singh and questioned the appellant suspecting that the mare was stolen. On this the appellant tried to pull something out from the fold of his trousers but was prevented from doing any harm and was seized. A country made pistol, P.16 for firing twelve-bore shot gun cartridges together with four live cartridges were then taken from him who thereafter confessed that he had stolen the mare after shooting a Mazhabi of Nand Garh. The fact of the capture of the accused was thereafter recorded in the Panchayat records and the witness took the appellant to the Police Station of Jalalabad where the report of (P.W. 19) Gian Chand was recorded and a case registered against the accused under S.19 (f) of the Arms Act at 8.30 p.m. on 14th September 1956. Information was given to the Sub-Inspector of Muktsar on 15th September regarding the arrest of the accused who had already been sent up to the judicial lock up. During the course of investigation of the case of murder by the Sub-Inspector of Muktsar the cartridge recovered near the place where the dead body was found was sent along with the pistol seized from the accused for the examination and the option of Dr. D. N. Goyal (P. W. 3) was to the effect that the cartridge recovered at the spot was fired from that pistol. There were parallel investigation by Diwan Chand (P. W. 25) and Pritam Singh (P.W. 26) r
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