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HIGH COURT OF ALLAHABAD
Prem Prakash, S.K.Kaul
BABU LAL
Versus
STATE
Decided On : 25 March 1977
Cr. Rev. No. 289 of 1972
RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT, 1966 - SECTION 3 - SECTION 8(1) - SECTION 8(2) - SECTION 9 - SECTION 173(4) - SECTION 207 - SECTION 145 - SECTION 154 - SECTION 157 - SECTION 162 - SECTION 165 - SECTION 190(1)(A) - SECTION 193 - SECTION 228 - SECTION 91 - SECTION 74 - INDIAN EVIDENCE ACT - CODE OF CRIMINAL PROCEDURE - STATEMENT OF WITNESSES - COPIES OF STATEMENTS - RIGHT TO CROSS-EXAMINE - DISCRETION OF COURT - FAIR TRIAL - MATERIAL PREJUDICE - APPEAL - SUMMARY OF THE LEGAL FRAMEWORK APPLIED BY THE COURT IN REACHING ITS DECISION.
Fact of the Case:
The case arose from a conviction under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. The accused challenged the conviction on the grounds that they were not provided with copies of the statements of witnesses examined by the inquiry officer under Section 8(2) read with Section 9 of the Act, and that the trial court erred in not directing the prosecution to provide the copies.
Finding of the Court:
The court held that the officer conducting an inquiry under Section 8(1) of the Act does not possess all the attributes of an Officer-in-Charge of a police station investigating under Chapter XIV of the Code of Criminal Procedure. Therefore, the prosecution is not under an obligation to supply the copies of the statements of the witnesses examined by the officer of the Force in the course of inquiry as required by Section 173(4) of the Old Code corresponding to Section 207 of the New Code.
Issues: 1. Whether an officer of the Force making an inquiry under Section 8(2) read with Section 9 of the Act is bound to furnish copies of the statements of persons examined by him under Section 173(4) of the Old Cr. P. C. (Corresponding to Section 207 of the C. P. C, 1973)? 2. Whether, if it is not obligatory upon the prosecution to supply the copies, an accused, in order to show the contradiction or inconsistency between the statement of the witness at the trial and what he had stated before the inquiry officer, can call in advance for the copy of the purposes of Section 145 Indian Evidence Act? 3. If the answer to the above is in the negative, in what manner the trial court should act to ensure a fair trial of the accused? 4. Whether an accused not making a request for copies at the trial can complain of material prejudice being caused to him by the non-supply of such copies at the hearing of the appeal?
Ratio Decidendi: The court reasoned that the statements recorded by an Officer of the Force in the exercise of his powers under Section 9 of the Act are not statements made to a police officer, and therefore, the provisions of Section 162 Cr. P. C. do not apply. The court further held that the accused cannot have the right to see the statement of a witness examined by an "officer of the Force" when neither the Act bestows such right upon nor does Section 145 Indian Evidence Act make an express provision for the issue of the copy.
Final Decision: The court answered the questions as follows: 1. No, an officer of the Force making an inquiry under Section 8(2) read with Section 9 of the Act is not bound to furnish copies of the statements of persons examined by him under Section 173(4) of the Old Cr. P. C. (Corresponding to Section 207 of the C. P. C, 1973). 2. No, if it is not obligatory upon the prosecution to supply the copies, an accused cannot call in advance for the copy of the purposes of Section 145 Indian Evidence Act. 3. The trial court should determine for itself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and whether the account given by the witness in his testimony in inconsistent with the statement given by the witness during the course of the inquiry. If so, the court would direct the prosecutor to give copies of the relevant statement to the accused. 4. No, an accused not making a request for copies at the trial cannot complain of material prejudice being caused to him by the non-supply of such copies at the hearing of the appeal.
This matter upon a reference made by a learned Single Judge of this court arises from a conviction under Section 3 of the Rail way Property (Unlawful Possession) Act,1966 (to be hereinafter referred as the Act ). The questions raised in the case are these :
1. Whether an officer of the Force making an inquiry under Section 8 (2) read with Section 9 of the Act is bound to furnish copies of the state ments of persons examined by him under Section 173 (4) of the Old Cr. P. C. (Corresponding to Section 207 of the C. P. C, 1973) ?
2. Whether, if it is not obligatory upon the prosecution to supply the copies, an accused, in order to show the contradiction or inconsistency between the statement of the witness at the trial and what he had stated before the inquiry officer, can call in advance for the copy of the purposes of Section 145 Indian Evidence Act ?
3. If the answer to the above is in the negative, in what manner the trial court should act to ensure a fair trial of the accused ?
4. Whether an accused not making a request for copies at the trial can complain of material prejudice being caused to him by the non-supply of such copies at the hearing of the appeal ?
2. So far as the first question is concerned, the matter is now settled by the decisions of the Supreme Court in Srilal Shaw v. State of West Benga (A. I. R. 1975 S. C. 393.), and State of U. P. v. Durga Prasad (A. I. R. 1974 S. C. 2136.), and the Asst. Collector of Customs, Bombay v. L. R. Melwani (A. I. R. 1970 S. C. 962.), that where the criminal prosecution is instituted on a private complaint, the documents mentioned in sub- clause (4) of Section 173 cannot be made available to the accused. Section 173 is attracted only in a case investigated by a police officer under Chapter XIV of the Code of Criminal Procedure. Copies of the documents cannot be made available to the accused by taking aid of Section 94 also as that section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person. In Durga Prasads case the Supreme Court has the occasion to consider the relevant provisions of the Act and the nature and scope of the inquire contemplated by Section 8 (1) of the Act. Taking the view that an officer conducting an inquiry under Section 8 (1) of the Act does not possess all the attri butes of an officer-in-Charge of a police station investigating a case under Chapter XIV of the Code, Mr. Justice Chandrachud, speaking for the Court, observed (vide para 17) :
"the officer conducting an inquiry under Section 8 (1) cannot initiate court proceedings by filing a police report as is evident from the two provisions to Section 8 (2) of the Act. . . . . . The duty cast by proviso (b) on an officer of the Force to make a full report to his official superior stands in sharp contrast with the duty cast by Section 173 (1) (a) of the Code on the Officer-in-Charge of a police station to submit a report to the Magistrate empowered to take cog nizance of the offence. On the con clusion of an inquiry under Section 8 (1), therefore, if the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accus ed, he must file a complaint under Section 190 (1) (a) of the Code in order that the Magistrate concerned may take cognizance of the offence". Further in para 23 it was said :
"the High Court was therefore in error in holding that statements made during the inquiry under Section 8 (1) of the Act are on a par with state ments made during the course of an investigation, that Section 162 of the Code applied with full force to the inquiry proceeding and that in taking signatures of witnesses on the state ments made by them the inquiry officer had committed a flagrant violation of Section 162 of the Code.
In view of the law laid down by the Supreme Court we must hold that the officer conducting an inquiry under Sec tion 8 (1) of the Act does not possess all the attributes of a
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