IMPORTANT POINT
When the gists of the statements of witnesses were not recorded in terms of Section 161 Cr.P.C., the accused has no right to ask for the gists of such statements if recorded under Section 172 Cr.P.C.

Headnote:Criminal Procedure Code, 1973—Sections 161(3) & 172—Examination of witnesses—Statements made u/s 161 (3) of the Code—Direction to supply copies of ‘gists’ of statement recorded while interrogating a witness—Sustainability—Whether accused is entitled to any copy of the so called ‘gists’ statements of interrogation—Investigating Officer stated that he did not record gist of statements of the witness—It was stated that the gist related to his own observation—Direction given by the High Court directing that if the gists of the interrogation can be regarded as statements u/s 161(3) of the Code, although in summary form, then the same would have to be supplied to the accused, respondent—It did not factually find out that as to whether the gists can be regarded as statements—Whether directions of the High Court are sustainable—(No).
       Held : Under Section 161 Cr.P.C. the police officer may reduce into writing any statement made to him in the course of examination under that provision and if he does so he shall make separate and true record of the statement of each such person whose statement he records. The provision in other words authorizes the police officer to reduce into writing any statement made by a witness. In a given case the investigating officer may record circumstances ascertained during investigation in the case diary in terms of Section 172 Cr.P.C. It is only when the investigating officer decides to record the statement of witnesses under Section 161 Cr.P.C. that he becomes obliged to make a true record of the statement which obviously will not include the interpretation of the investigating officer of the statements or the gists of statement. At this stage it will be necessary to take note of sub-section (b) of Section 173 Cr.P.C. which authorises the police officer to claim a sort of privilege in respect of any statement recorded under Section 161 Cr.P.C. after giving reasons as to why such statement may not be provided to the accused. Such privilege can only be claimed in respect of statement recorded under Section 161 Cr.P.C. and not in respect of what the officer records in the case diary i.e. the gist of the statement under Section 172 Cr.P.C. It will also be necessary to take note of Section 207 Cr.P.C. The Magistrate has to, in terms of that provision, provide to the accused, free of cost, copies of statements recorded under Section 161 (3) subject to the exceptions in terms of Section 173(6). A categorical statement has been made by the learned counsel for the appellant that the gist of the statement has not been produced by the prosecution to prove the guilt of the accused and the gists of the statements were not recorded in terms of Section 161 Cr.P.C. and accused has no right to ask for the gists of such statements if recorded under Section 172.(Para 11)
       As rightly submitted by learned counsel for the appellant, in different States case diaries are maintained in different ways. Some States have a composite case diary which includes the statements recorded under Section 161 Cr.P.C. as well as the observations of the investigating officer under Section 172 Cr.P.C. This court, therefore, in Shamshul Kanwar’s case (supra) held that the statements under Section 161 need to be separated from observations which are recorded under Section 172 in order to make available the statement under Section 161(3) to the accused. The position is entirely different here.(Para 13)
       The direction of the High Court as contained in the impugned order is not a definite one. It only refers to Shamshul Kanwar’s case (supra) and concludes that if the ‘gists’ can be regarded as statements under Section 161 Cr.P.C. although in summary form they would have to be made over to the accused. It does not factually find out that as to whether the gists can be regarded as statements in view of the position of law stated above. It did not take note of the specific stand of the appellant about separate maintenance of case diaries. (Para 15)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this Appeal is to the direction given by the Delhi High Court directing that if the gists of the interrogation can be regarded as statements under Section 161(3) of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’), although in summary form, then the same would have to be supplied over the accused i.e. the respondents herein.

3. The background facts in a nutshell are as follows:

Respondents filed a petition under Section 397 and Section 401 read with Section 482 of the Cr.P.C. regarding the opinion expressed by the trial court during recording of cross examination of PW 193 (Inspector Sukhwinder Singh) with regard to submissions alleged to have been made by PW 166 (Rakesh Bhatnagar).

4. For the purpose of adjudication of the present controversy, reference has to be made to the opinion expressed by the trial court which reads as follows:

“It is not in dispute that this witness has admitted to have interrogated PW Rakesh Bhatnagar several times but copy of seven statement (recorded by me and other IO’s) only is supplied to accused R.K. Sharma. In my opinion even the gist made after interrogating a person i.e. PW Rakesh Bhatnagar was a statement in view of aforesaid provision and the accused was entitled to get copy of such gists of statements. Prosecution is accordingly to supply the copies of such gists to accused R.K. Sharma”.

5. This opinion/direction was questioned by the appellant because in terms of such opinion/direction the prosecution has been directed to supply copies of ‘gists’ of statement said to have been recorded while interrogating PW 66. Stand of the appellant is that these are not statements which fall within the meaning of Section 161(3) of the Cr.P.C. and, therefore, the accused is not entitled to any copy of the so called ‘gists’. It was pointed out that these ‘gists’ were not statements but mere observations of the investigating officer. Relevant portion of the cross examination of PW-193 reads as follows:

“At this stage learned defence counsel requests that he be supplied copies of the gist of statements of interrogation of Rakesh Bhatnagar recorded in case diary under Section 161. The witness submits that he did not record the gists of statement but the gist of interrogation which was his own observation and not the statement.”

6. It was pointed out by the appellant before the trial court that PW 193 has categorically and clearly stated that he did not record gist of statements of PW 66. On the other hand the gist related to his own observation and cannot be treated as statement of PW 66. Since the plea did not find acceptance by the trial Court, High Court was moved by filing a revision petition. Maintainability of revision was questioned by the respondents. It was also pointed out that in terms of Section 172 Cr.P.C., the investigating officer is required to maintain a case diary. With reference to the decision of this Court in Shamshul Kanwar v. State of Uttar Pradesh (1995 (4) SCC 430) it was submitted that in some States the case diary comprises two parts i.e. first relating to the steps taken during investigation and the second part consists of statements of circumstances ascertained during the investigation. This Court observed that these statements obviously refer to the statements recorded by the officer in terms of Section 161 Cr.P.C. and copies of second part which mainly contains statement of the witnesses as a matter of course are to be supplied to the accused persons.

7. After considering the rival submissions, learned Single Judge of the High Court observed that revision was maintainable and on merits observed as follows:

“As regards the merits, considering all the arguments advanced by the learned counsel for the parties and particularly in view of the statements made by PW 193 in the course of his cross-examination that the gists recorded by him were gists of his own observation and not the statement of PW-66, it woul

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2007 Supreme(SC) 177

IMPORTANT POINTWhen the gists of the statements of witnesses were not recorded in terms of Section 161 Cr.P.C., the accused has no right to ask for the gists of such statements if recorded under Section 172 Cr.P.C.

Cases Referred (2)

IMPORTANT POINT
When the gists of the statements of witnesses were not recorded in terms of Section 161 Cr.P.C., the accused has no right to ask for the gists of such statements if recorded under Section 172 Cr.P.C.