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2006 Supreme(Bom) 2019
IN THE HIGH COURT OF BOMBAY
(B. R. Gavai, J.)
ANGADH s/o ROHIDAS KADAM and others - Applicants.
vs.
STATE OF MAHARASHTRA and another - Respondents.
Cri. Appln. No. 2859 of 2006
Decided on 12-12-2006
For applicants: Joydeep Chatterjee
For respondent No.1: S. D. Kaldate, Additional Public Prosecutor
For respondent No.2: E. P. Sawant
Headnote:Criminal Procedure Code, 1973 - Sections 161, 173, 207 and 233(2) - Statement of witness recorded under Section 161 - Production of - Application for, by accused - Statements not filed alongwith charge-sheet - Application rejected - Challenged - I.O. duty-bound to forward copies of statements of persons to whom prosecution proposes to examine - Names of persons mentioned in list of witnesses - Statements cannot be withheld - Order refusing request of accused not sustainable. - Court is of the view that from the plain reading of Section 173(5)(b) and Section 207(iii) of Cr PC it is the duty of the Investigating Officer to forward copies of statement of all such persons to whom the prosecution proposes to examine. In the present case, the names of the aforesaid persons were mentioned in the list of witnesses. As Court has already discussed herein above, the said statements could not be withheld only on the ground that they would have strengthened the defence of the accused persons.
A perusal of the impugned order would reveal that the Magistrate has not referred to any of the three grounds as contemplated under Section 233 of Cr PC while refusing request of the applicants. The request is rejected only on the statement made on behalf of the prosecution, that their names are not mentioned in the charge-sheet. In that view of the matter, Court finds that the impugned order is unsustainable in la w on this ground also.
2. By way of present application, the applicant challenges the order passed by the learned Ad hoc Additional Sessions Judge, Gangakhed, dated 4th September 2006, below Exhibit 51 in Sessions Trial No. 6/2006, thereby rejecting the application of the applicants/accused for direction to the prosecution to produce statements of Dadarao Marotrao Kadam, Bapurao Dnyandeo Kadam, Kusumbai Bapurao Kadam and Dadarao Limbaji Kadam, recorded under section 161 of the Criminal Procedure, 1973.
3. The factual background, in short, giving rise to the present petition is as under:-
The applicants are facing trial in Sessions Trial No. 6/2006 before the Ad hoc Additional Sessions Judge, Gangakhed, for the offence punishable under sections 498-A, 304-B read with section 34 of the Indian Penal Code, arising out of Crime No. 66/2005 registered at Police Station, Palam (Taluka Pal am, District: Parbhani).
During the course of trial, the prosecution examined Police Inspector, Mukund Kewle, who is the Investigating Officer, as prosecution witness No.6. In his cross-examination, he has deposed thus:
"I recorded statements of Dattarao Kadam, Bapurao Kadam, Kusum Kadam and Dadarao Limbaji Kadam. On going through record, I say that their statements were not filed in Court along with charge sheet. It is true to say that statements of these persons were not filed in Court along with charge-sheet because they did not support prosecution's case."
After the evidence of PW 6 was recorded, the Counsel for the applicants filed an application below Exhibit 41 seeking a direction to the Investigating Officer to produce statements of the aforesaid four persons which were recorded under section 161 of the Code of Criminal Procedure, 1973. The same came to be rejected on the same day. In the meanwhile, the defence had applied for issuing process to the aforesaid four persons in order to examine them as defence witnesses. This application has been granted and they have been summoned to appear as witnesses.
The counsel for the applicants thereafter filed an application below Exhibit 51 purportedly under section 233(3) of the Code of Criminal Procedure, to direct Palam Police Station to produce the statements recorded in Crime No. 66/2005 under section 161, Criminal Procedure Code of the aforesaid four persons. The same came to be rejected. Hence, this application under section 482 of the Code of Criminal Procedure, 1973.
4. Mr. Chatterjee, learned Counsel appearing on behalf of the applicants, submitted that the learned trial Court has not taken into consideration the import of section 233(3) of Criminal Procedure Code. He submits that perusal of section 233(3) would reveal that it is mandatory for a Magistrate to issue process for production of the documents. He submits that the refusal can be only on three grounds i.e. if the application is made for the purpose of vexation or delay or for defeating the ends of justice. He further submits that such a ground has to be recorded by him in writing. He further submits that the judgment of this Court in case of Ashok Ananda Range vs. State of Maharashtra, reported in 2001(3) Mh.L.J. 760, is on interpretation of provisions of section 173 of Criminal Procedure Code and not on the provisions of section 233 of Criminal Procedure Code and, therefore, reliance placed by the learned trial Court was not well placed. He further submitted that in view of the law laid down by the learned Single Judge of this Court in case of Ramesh Wamanrao Babhulkar vs. State of Maharashtra, reported in 1995(2) Mh.L.J. 724, the accused is entitled to have copies of all statements of witnesses recorded by prosecution under section 161 of the Code even if a particular statement is not being relied upon by the prosecution. He has further relied upon judgment of Rajasthan High Court in case of Dhananjay Kumar Singh vs. State of Rajasthan, reported in 2006 CriL.J. 3873, wherein a similar
