The accused has the right to use the previous statement of a witness, including statements recorded by the investigating agency during the course of an investigation, for the purpose of establishing contradiction in the evidence of a witness or to discredit the witness.

JUDGMENT

1. Heard. Admit. Appeal is taken up for hearing forthwith. The question which arise for consideration in this Appeal preferred by the appellant under the provisions of MCOC Act is whether the appellant is entitled for copy of statement of approver recorded during the course of investigation while he was arraigned as an accused.

2. The applicant is aggrieved by the order dtd. 14/2/2020, rejecting the application preferred by the applicant seeking copy of statement of approver Sudhir Ghorpade.

3. The submission of the appellant is that the approver was arrested as accused, and, during the course of investigation, his statement was recorded by the investigating agency. He was thereafter made approver and examined as prosecution witness in the trial, wherein the appellant is tried as an accused. The approver has ceased to be an accused. His statement recorded while he was an accused will have to be treated as previous statement. The appellant is entitled for copy of such statement, to confront the approver by cross examination.

4. According to prosecution the statement sought by the appellant/accused is the statement of the accused and the appellant is not entitled for copy of the same. While the statement of approver was recorded, his status was that of accused.

5. The factual aspects necessary to decide this appeal are as follows:

(i) The appellant and others were arraigned as accused in MCOC Special Case No. 5 of 2008 with MCOC Special Case No.13 of 2008 and charged for commission of offences under Ss. 387, 506 part II read with Sec. 120-B of IPC, Sec. 3 and 25 of Indian Arms Act. Ss. 3(1)(2) and 3(5) of MCOC Act.

(ii) Charge was framed against the accused. The trial has commenced. Witnesses were under examination.

(iii) The co-accused Sudhir Ghorpade had preferred an application for granting pardon and making him approver in accordance of Sec. 306 of Cr.P.C. He was declared as approver by the prosecution. His evidence was recorded as approver. He was examined as P.W.4 during the trial.

(iv) During the course of recording his evidence, P.W.4 had admitted that his statement was recorded during the course of investigation. It was recorded while he was in police custody. The said statement was not filed by the concerned investigating officer along with the charge - sheet.

(v) Application was preferred vide Exhibit - 177 on behalf of the appellant for providing previous statement of approver. It was prayed that, directions be issued to the prosecution to produce statement of P.W.4 recorded by the police officer after his arrest.

(vi) The learned Special Judge called upon the prosecution to file say. The prosecution opposed the application on the ground that statement made by any person accused of an offence is inadmissible and such statement cannot be produced or given to the accused.

(vii) The learned Special Judge rejected the said application by order dtd. 14/2/2020, on the ground that the appellant is not entitled for copy of such statement. The statement of Sudhir Ghorpade is hit by provisions of Ss. 25 and 26 of the Evidence Act.

(viii) The appellant presented application vide Exhibit-180 for review of the order dtd. 14/2/2020. The application was opposed by prosecution by relying on Sec. 362 of Cr.P.C. and submitted that Court cannot review its own order. The learned Special Judge rejected the application by order dtd. 8/2/2021 on the ground of maintainability.

6. Learned advocate for the appellant urged as follows :-

(a) The learned Special Judge has committed an error in rejecting the application below Exhibit-177.

(b) Sudhir Ghorpade was arrested as an accused. His statement was recorded. Subsequently, he was examined as approver. In this circumstances, statement of Sudhir Ghorpade recorded during the course of investigation will have to be termed as previous statement and the appellant-accused is entitled for the copy of the same, for the purpose of cross-examination of approver and or to confront him with the ve