A defacto complainant is entitled to access their statement recorded under Section 164 Cr.P.C. after the conclusion of an investigation and filing of a final report.

JUDGMENT

Dated, this the 7^th day of January, 2025

Petitioner is aggrieved by Ext.P1 Order, which refused to issue a copy of the petitioner's statement recorded under Section 164 Cr.P.C . Pursuant to the First Information Statement given by the petitioner, an F.I.R was registered as Crime No.646/2018 of the Museum Police Station, Thiruvananthapuram. The investigation was subsequently transferred to C.B.C.I.D and the crime was re-numbered as 167/CBI/TVPM/R/18. After investigation, Ext.P3 final report has been filed, concluding that the offences alleged has not been made out and requesting the Court to strike off the crime from the records. Dissatisfied, the petitioner/defacto complainant wanted to prefer a protest complaint against Ext.P3 refer report, for which purpose, petitioner wanted to peruse her statement recorded under Section 164 Cr.P.C by the Magistrate. Accordingly an application was filed. The same was dismissed vide Ext.P1, relying upon a judgment of the Hon'ble Supreme Court inA v. State of Uttar Pradhesh and another [ (2020) 10 SCC 505 ].

2. Learned Senior Counsel would submit that, Ext.P1 Order cannot be sustained in law. The judgment relied upon has no relevance to the facts in issue. The same was a case where an application was made by the accused, before the completion of investigation. The Court held that the accused is not entitled to a copy until the investigation is over and a report under Section 173 has been filed. In paragraph no.17, it was held that the accused is entitled in terms of Sections 207 and 208 Cr.P.C to get copies of the documents, only after taking cognizance and issuance of process. Distinguishing the said judgment, learned Senior Counsel would point out that, in the instant case, a copy of statement under Section 164 sought for by the person who gave the statement, that too, after completion of investigation and filing Ext.P2 refer report/final report. Learned counsel then relied upon Rule 226 of the Criminal Rules of Practice, whereby even a stranger is entitled to issuance of copies of documents, provided sufficient cause is shown. In support of the same, the judgment of a learned Single Judge of this Court in Vivek Nair v. Puravankara Projects Limited [ 2017 (3) KLT 93 ] is relied upon. Thus, the petitioner seeks to set aside Ext.P1 Order and seeks a direction to issue a copy of her statement under Section 164 .

3. The above submission was seriously opposed by the learned Senior Public Prosecutor. Learned Prosecutor would point out that this is not a case, where a refer charge was filed upon finding that the accused has not committed the offences alleged. This is a case, where further action is dropped due to insufficiency of evidence collected during investigation, which would necessarily mean that, in case incriminating evidence surfaces at later point of time, a final report assigning guilt of the accused can be filed later, after investigation. A third category referred to by the learned Public Prosecutor is a case, where the crime remains undetected. Inasmuch as Ext.P3 final report purports to drop further action for want of sufficient evidence, the investigation cannot be deemed to have been concluded, for which reason, copy of the statement under Section 164 Cr.P.C cannot be issued to the petitioner, is the submission made. Learned Prosecutor would also add that the petitioner, after filing the protest complaint, can call for the records through the Court, which would afford her an opportunity to peruse her statement under Section 164 . According to the learned Public Prosecutor, in cases where cognizance has not been taken by the trial court, copies of statements under Section 164 cannot be issued. Learned Public Prosecutor relied upon two judgments of this Court. The first being Athulya v. State of Kerala [ 2019 (5) KHC 920 ] and the second, Saritha S. Nair v. Union of India and another [ 2022 (5) KHC 527 ].

4. Having heard the learned counsel appearing for the respective par