Shircy V., J.

An interesting question is mooted in this appeal by the 1st accused in S.C. No. 2/2011 on the files of the Special Court II for Trial of NIA Cases, Kerala, Ernakulam. The 1st accused/appellant is facing trial along with the other accused for having committed offences punishable under Sections 120B, 124A, 153A of the Indian Penal Code, 1860 Sections 25 and 27 of the Arms Act and Sections 10 and 13 of the Unlawful Activities Prevention Act (UAP) Act.

2. In the instant case the prosecution has cited 121 charge witnesses before the NIA Court. Out of the same, only 24 witnesses have been examined. At this stage this appellant has filed an application opposing the examination of 38 witnesses ie; CWs. 43, 48 to 50, 52, 53, 68 to 78, 87 to 98 and 113 to 121, by the prosecution, on the ground that the prosecution has not recorded their statements as provided under Sub-Section 3 of Section 161 of the Code of Criminal Procedure (for brevity, ''Cr.P.C.''). The learned counsel for the appellant has contended that it is mandatory to record the statements of the witnesses and the examination of the witnesses before court without recording their statements under Section 161 (3) of Cr. P.C would cause prejudice to the appellant. Hence he filed application opposing their examination before the court.

3. Learned Public Prosecutor for NIA had vehemently opposed the application and contended that it is not mandatory to record statements of witnesses, under Section 161(3) of Cr. P.C. and hence the examination of those witness before the court will not cause any prejudice to the appellant.

4. The Special Court for NIA cases upheld the contention of the learned Public Prosecutor and allowed the prosecution to examine the witnesses by dismissing the application. Hence the appeal.

5. We heard Sri. V.T. Reghunath, learned counsel for the appellant and Sri. M. Ajay, learned Public Prosecutor for NIA Cases.

6. It is submitted by learned counsel for the appellant that the examination of witnesses by the prosecution without their statements recorded under 161(3) Cr.P.C., will cause prejudice to the appellant. The learned counsel has further submitted that, when Section 173(5) (b) and 161(3) is analysed along with Section 207 of Cr.P.C. it is clear that, without the statement recorded under Section 161 Cr.P.C., a witness cannot be examined before the court by the prosecution as it will cause injustice to the accused. To fortify his argument he relied on the decision of this court in Joseph v. State of Kerala (2010 (2) KLT 918) where it was held that the statements recorded under Section 161 Cr.P.C. of all the persons whom prosecution proposes to examine as its witnesses should be produced in court and copies supplied to accused. Per contra, the learned Public Prosecutor submitted that it is not mandatory to record statements of all the witnesses interrogated by the police officer under Section 161(3) Cr. P. C. It is further submitted by the learned Public Prosecutor that all those witnesses cited by the prosecution are official witnesses and their examination without Section 161 Cr.P.C. statements will not cause any prejudice to the appellant as contended and the prosecution is justified in examining those witnesses before the court in support of the prosecution case.

7. In order to appreciate the rival contentions, it will be worth to refer the provisions of the Cr.P.C., which are relevant for the purpose of this case. Chapter X11 of the Code of Criminal Procedure deals with information to the police regarding a crime and the powers of police to investigate the crime. Section 161 of Cr.P.C. is extracted here under :

Section 161.-(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circums