Question: In my case, the police has recorded the statements of about 15-20 witnesses. However, along with the charge sheet, the police has sent only 6 statements. So, I have got statements of only 6 witnesses. I tried to get copies of the statements of the remaining witnesses recorded by police, but the police and court have both refused to supply copies of these remaining witnesses on the ground that these other witnesses are not proposed to be examined on behalf of the prosecution. What is the correct legal position?
Answer: Section 173(5)(b) of the Cr.P.C. states that the police is required to send to the Magistrate, along with charge sheet, the statements of all the witnesses whom the prosecution proposes to examine as its witnesses:
“(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report—
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”
Similarly, Section 162 of the Criminal Procedure Code lays down that the statement of a witness recorded by police cannot be used for any purpose except where such witness is called for the prosecution in such inquiry or trial and, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness:
“162. Statements to police not to be signed: Use of statements in evidence.— (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation.—An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.”
It is pertinent to point out that in the case of Shiv Narain Jafa v. Judges of High Court Allahabad, AIR 1953 SC 368 : 1953 Cri LJ 1459, a five-judge Constitution bench of the Supreme Court has held as under:
“…it is true that under Section 162 of the Criminal Procedure Code the Advocate could not apply for and obtain a copy at the statement of Hulasi recorded by the Police as he was not called for the prosecution to give evidence in the Court of Sessions. …”.
Therefore, it appears that the law requires that statements of only those witnesses should be given to the accused who are proposed to be called as prosecution witnesses. It may appear to be a harsh and unjust legal position, but this is what appears to be the interpretation of the law on this issue.