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The State Of Punjab v. Mohinder Singh, Etc.
Factual and Procedural Background
Mohinder Singh and four others were committed by the Judicial Magistrate 1st Class to stand trial in the Sessions Court for offences under sections 302/149, 452/149, 324/149, 323/149 and 148, Indian Penal Code. During the Sessions Court proceedings the accused applied for free copies of statements of certain prosecution witnesses recorded in the case diary by Deputy Superintendent of Police Surjit Singh. The Public Prosecutor opposed the application, contending that only documents specified in section 173(4), Criminal Procedure Code, are to be supplied free and that statements recorded in the case diary by the Deputy Superintendent were not within that category; he also stated that copies of statements recorded under section 161(3) by Sub-Inspector Karnail Singh had already been supplied. The Sessions Judge, Sangrur directed the prosecution to furnish free of cost copies of statements of six specified witnesses recorded by the Deputy Superintendent in the case diary. The State of Punjab filed this revision petition challenging that order.
Legal Issues Presented
- Whether accused are entitled under section 173(4), Criminal Procedure Code, to free copies of statements recorded in the case diary by a senior investigating officer (Deputy Superintendent of Police) when those statements were not recorded under section 161(3), Cr.P.C.
- Whether statements of witnesses recorded in the police diary (case diary) fall within the documents or records that must be furnished to the accused under sections 162, 173(4) and 207-A(3), Cr.P.C., when the prosecution intends to examine those witnesses at trial.
Arguments of the Parties
State of Punjab's Arguments
- The State contended that no statements of the six concerned witnesses were recorded by the Deputy Superintendent under section 161(3), Cr.P.C., and therefore the accused were not entitled to those statements under section 173(4), Cr.P.C.
- The State conceded that, pursuant to the provisions of section 173(4), Cr.P.C. and section 207-A(3), the Magistrate may direct a police officer to furnish to the accused the documents referred to in section 173(4).
- The State explained the investigative sequence: initial investigation by Sub-Inspector Karnail Singh (who recorded statements under section 161), followed by a deputation of Deputy Superintendent Surjit Singh who recorded statements of certain witnesses—some under section 161 (in respect of a different accused) and others only in the case diary.
Accused's Position
- The accused applied for free copies of statements of eight prosecution witnesses (Netar Singh, Darshan Singh son of Sucha Singh, Major Singh, Nachhattar Singh, Sub-Inspector Karnail Singh, A.S.I. Balwant Singh, Darshan Singh son of Basawa Singh and Dr. Moonga); six of these had statements recorded by the Deputy Superintendent in the case diary.
- The accused relied on the entitlement provided by section 173(4), Cr.P.C. that requires furnishing to the accused, free of cost, copies of documents on which the prosecution proposes to rely, including statements recorded under section 161(3).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Sardara Singh and others (1970 Cr. L.J 558) | Sections 162, 173(4) and 207-A(3) enable supply of statements of witnesses intended to be examined; if statements were first recorded by investigating officer and again by a senior officer, copies of both should be supplied. | The court relied on this authority to support the obligation to supply copies of statements recorded by different officers and to stress the safeguard these provisions provide to the accused. |
| Jabid Ali and others v. Tripura Administration (1962 (2) Cr. LJ. 590) | To the same effect as Sardara Singh (supporting the obligation to furnish statements to accused). | The court cited it as corroborative authority for the principle that accused must be supplied statements intended to be used by the prosecution. |
| Noor Khan v. State Of Rajasthan (A.I.R 1964 S.C 286) | Section 161(3) does not require recording statements in writing, but if statements are recorded in writing the officer is obliged to make copies available to the accused before commencement of proceedings so the accused knows the details of the case against him. | The court applied this principle to hold that written statements made during investigation, even if recorded by a senior officer, must be supplied if they exist. |
| Dadan Gazi v. Emperor (I.L.R (1906) 33 Cal. 1023) | Police practice of incorporating oral statements in the Special Diary under section 172 to keep them from the accused was criticised; statements recorded in a diary fall under provisions of section 162 and are liable to production. | The court used this authority to reject the tactic of withholding statements by placing them in the case diary and to support that such diary entries are subject to production rights. |
| Gogikari Narsoji v. State (I.L.R 1955 Hyderabad 644) | Section 161(3) mandates that if a police officer records statements in writing he must make separate record of each statement; statements recorded in the special diary are also usable by the accused. | Cited to emphasize the mandatory requirement of separate written records and to show that statements in the police diary cannot be used to deny accused access to them. |
| Maroti Mahagoo and others v. Emperor (A.I.R 1948 Nagpur 74) | Supports that statements taken during investigation, even if in the special diary, can be used by the accused. | Used as corroborative authority to the same effect as Gogikari Narsoji and other cited cases. |
| Gouranga Mohapatra v. State (A.I.R 1954 Orissa 49) | Provision of section 161(3) was introduced to stop investigating officers from making case diaries that prevent assistance to Court or accused; statements recorded in diaries are subject to production. | Relied upon to underscore legislative intent behind section 161(3) and to support supplying diary statements to the accused. |
| Bejoy Chand Patra v. The State (A.I.R 1950 Cal. 363) | An investigating officer is not bound to record statements, but if he does he must make separate records; non-compliance does not render evidence inadmissible though it affects credibility; accused should be furnished the gist of statements. | The court cited this to explain that even if procedure is imperfect, accused are entitled to the gist/copies and that non-compliance affects weight and credibility rather than automatically excluding evidence. |
Court's Reasoning and Analysis
The court began with the statutory text of section 173(4), Cr.P.C., which requires that before the commencement of inquiry or trial the officer in charge shall furnish to the accused, free of cost, copies of the report, FIR and "all other documents or relevant extracts" on which the prosecution proposes to rely, including statements recorded under section 164 and statements recorded under sub‑section (3) of section 161 of all persons whom the prosecution proposes to examine.
The court examined the investigative facts: Sub‑Inspector Karnail Singh had recorded statements under section 161 which had been supplied to the accused; Deputy Superintendent Surjit Singh, deputed for further investigation, recorded statements of nine witnesses under section 161 relating to a different accused and recorded six other witnesses' statements in the case diary (not under section 161(3)). The prosecution intended to examine the six witnesses whose statements were in the case diary.
Relying on the cited authorities, the court articulated the settled legal position: section 161(3) does not compel recording of statements, but if statements are reduced to writing they must be recorded separately for each witness, and copies must be made available to the accused. Moreover, where officers attempt to keep statements from the accused by placing them in the case diary (section 172), the provisions of sections 162, 173(4) and 207-A(3) make clear that such statements or any record thereof (whether in a police diary or otherwise) fall within the ambit of disclosure to the accused if the prosecution proposes to rely on them.
The court rejected the State's submission that absence of formal recording under section 161(3) in the Deputy Superintendent's notes absolved the prosecution from supplying copies. The court held that the prosecution cannot withhold statements by "cleverly incorporating" them in the case diary; the words of section 162(1) expressly include statements or any record thereof "whether in a police-diary or otherwise." Consequently, when the prosecution intends to examine witnesses whose statements appear in the police diary, copies of those statements must be furnished to the accused.
Applying these principles to the facts, the court concluded that the Sessions Judge correctly directed supply of free copies of the statements recorded by the Deputy Superintendent in the case diary for the six witnesses whom the prosecution proposed to examine.
Holding and Implications
The revision petition is dismissed and the order of the Sessions Judge, Sangrur directing the prosecution to furnish free copies of the statements recorded by the Deputy Superintendent in the case diary is affirmed.
Implications for the parties: the accused are entitled to free copies of the statements recorded in the case diary by the Deputy Superintendent of Police for the six witnesses whom the prosecution intends to examine. The court's decision enforces the existing disclosure obligations under sections 162, 173(4) and 207-A(3), Cr.P.C. No broader novel precedent was announced beyond application of those statutory provisions and the authorities cited; the decision affirms application of established law to prevent withholding of statements by recording them in the police diary.
Pattar, J.— This is a revision petition filed by the State of Punjab against the order dated November 22, 1973 of the Sessions Judge, Sangrur, whereby he directed the prosecution to furnish free of cost copies of the statements of the prosecution witnesses Netar Singh, Darshan Singh son of Sucha Singh, Major Singh, Nachhattar Singh, Sub-Inspector, Karnail Singh and Balwant Singh, Assistant Sub-Inspector recorded by Surjit Singh, Deputy Superintendent of Police in the case diary.
(2) The facts of this case are that Mohinder Singh and four others, residents of village Akbar Pur Chhanan, district Sangrur were committed by the Judicial Magistrate 1st Class to stand their trial in the Court of Session under section 302/149, 452/149, 324/149, 323/149 and 148, Indian Penal Code. In the Court of the Sessions Judge, the accused made an application that copies of the statements of the prosecution witnesses, who were proposed to be examined by the prosecution, recorded in the case diary by the Deputy Superintendent of Police Shri Surjit Singh during the investigation may be supplied to them. This application was opposed by the Public Prosecutor on the ground that the accused could get only copies of those documents which are mentioned in section 173, subsection (4), Criminal Procedure Code, that the copies of the statements of the prosecution witnesses recorded under section 161(3) Criminal Procedure Code had already been supplied to them and that they were not entitled to the copies recorded in the case diaries by the Deputy Superintendent of Police. After hearing the counsel for the parties, the Sessions Judge, Sangrur directed the prosecution to furnish free of cost copies of statements of Netar Singh, Darshan Singh, Major Singh, Nachhattar Singh, P.Ws besides the statements of Sub-Inspector Karnail Singh and A.S.I Balwant Singh recorded by the Deputy Superintendent of Police in the case diary during the investigation. Feeling dissatisfied, the State of Punjab filed this revision petition against this order.
(3) This case was investigated by two police officers, namely, Karnail Singh Sub-Inspector of Police and Shri Surjit Singh, Deputy Superintendent of Police. The accused have already been supplied the copies of the statements recorded under section 161, Criminal Procedure Code, by Karnail Singh Sub-Inspector. They have not been supplied so far the copies of the statements recorded by the Deputy Superintendent of Police in the case diary. In their application the accused asked for statements of eight prosecution witnesses, namely, Netar Singh, Darshan Singh, Major Singh, Nachhattar Singh, Sub-Inspector Karnail Singh and A.S.I Balwant Singh, besides Darshan Singh son of Basawa Singh and Dr. Moonga. However, out of these eight witnesses, the statements of Darshan Singh son of Basawa Singh and Dr. Moonga were not recorded by the Deputy Superintendent of Police. The statements of the remaining six witnesses were recorded by the Deputy Suprintendent of Police in the case diary. According to section 173(4), Criminal Procedure Code, the accused is entitled free of charge copies of the documents before the commencement of the enquiry/trial mentioned in that sub-section. This sub-section (4) of section 173 reads as follows:—
“After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under section 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.”
Thus, according to this provision, the prosecution has to furnish copies to the accused free of cost of the following documents:—
(1) Copy of the report in the prescribed form forwarded to the Magistrate under sub-section (1) of section 173, Criminal Procedure Code.
(2) Copy of the first information report recorded under section 154, Criminal Procedure Code.
(3) Copies of all other documents or relevant extracts thereof, on which, the prosecution proposes to rely.
(4) Copies of statements and confessions, if any, recorded under section. 164, Criminal Procedure Code.
(5) Statements of witnesses recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
It is undisputed that the prosecution wants to examine the six witnesses, copies of whose statements made to the Deputy Superintendent of Police Shri Surjit Singh, were asked for by the accused.
(4) The learned counsel for the Punjab State contended that no statements of these six witnesses were recorded by the Deputy Superintendent of Police under section 161 (3), Criminal Procedure Code, and, therefore, the accused are not entitled to get copies of those statements under section 173(4), Criminal Procedure Code. However, he conceded that in view of the provisions of section 173 (4), Criminal Procedure Code and section 207-A sub-section (3), the police officer can be directed by the Magistrate to furnish to the accused the documents referred to in section 173(4), Criminal Procedure Code. In this case the investigation was conducted by Sub-Inspector Karnail Singh who recorded the statements of the witnesses. An application during the investigation was made to the Additional Inspector General of Police, Punjab, Chandigarh against the police of District Sangrur arid this was forwarded by him to the Deputy Inspector General of Police, Patiala Range, who deputed Shri Surjit Singh, Deputy Superintendent of Police, Patiala for investigation. The said Deputy Superintendent of Police recorded the statements of nine witnesses under section 161, Criminal Procedure Code relating to Ikkatar Singh accused, who has since been discharged. He also examined six other witnesses mentioned above, but did not, record their statements under section 161(3), Criminal Procedure Code, but recorded their statements in the case diary. To ascertain how Shri Surjit Singh, Deputy Superintendent of Police recorded the statements of the six witnesses, the counsel for the State of Punjab was directed to produce police diary of this case. The statement of each of these six witnesses was recorded separately by the Deputy Superintendent of Police. The statement of Netar Singh was recorded in detail. This witness had lodged the first information report of this case and his statement recorded by the Deputy Superintendent of Police was practically what was stated by him in the first information report. As regards the statement of Major Singh P.W, the Deputy Superintendent of Police wrote that he corroborated the statement of Netar Singh P.W and besides that, he stated certain other facts, which were recorded by him in his statement. To the same effect were the statements recorded by him of Darshan Singh P.W and Nachhatar Singh P.W Besides this the Deputy Superintendent of Police recorded the statement of Karnail Singh Sub-Inspector, who had conducted the investigation of this case as to whether one Mohinder Singh had come to him to lodge the report on August 21, 1972 pertaining to this occurrence. The statement of Balwant Singh, Assistant Sub-Inspector, Incharge Police Guard Rajendra Hospital, Patiala was also recorded by the Deputy Superintendent of Police as he had recorded the statement of Sucha Singh, since dead, in the Rajendra Hospital. The statements of these witnesses were recorded separately by the Deputy Superintendent of Police in the case diary.
(5) In State v. Sardara Singh and others () 1970 Cr. L.J 558, it was held as under:—
“The provisions relating to recording of statement of witnesses and supplying of the copies provide a valuable safeguard to the accused so that they may be utilised at the trial for preparing effective defence. Such a request cannot be normally whittled down. Where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure of supplying of the copies of the statements recorded under section 161, Criminal Procedure Code, the Court is justified in directing that the conviction should be set aside. The object of Sections 162, 173(4) and 207-A(3), Criminal Produce Code is to enable the accused to obtain a clear picture of the case against him. The sections impose an obligation upon the prosecution agency to supply copies of the statements of witnesses who are intended to be examined at the trial to enable the accused to utilise them in the course of cross-examination to establish such defence as may be desired to put up and also to shake the testimony of the witnesses. If in a case statements of witnesses were first recorded by the Investigating officer and again by a senior officer, copies of both should be supplied to the accused.”
To the same effect was the law laid down in Jabid Ali and others v. Tripura Administration () 1962 (2) Cr. LJ. 590.
(6) In Noor Khan v. State Of Rajasthan . () A.I.R 1964 S.C 286, it was held as under:—
“Section 161(3) (Criminal Procedure Code) does not require a police-officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution, on which the case of the State is based and the statements made against him.”
(7) In Dadan Gazi v. Emperor () I.L.R (1906) 33 Cal. 1023, it was observed:—
“Now by a curious and rather perverted ingenuity it became the practice of the police officers in the mofussil to incorporate oral statements made to them by witnesses in the Special Diary under section 172 in the belief that by so doing those statements could be kept from the knowledge of the accused.
In a series of decisions, which are too well known to require reference, it was held by this Court that such statements whether recorded in a diary under section 172 or not, fell under the provisions of section 162 and were liable to be produced under the conditions laid down in that section. One would have imagined that the effect of these rulings would have been to put an end to the useless and irregular practice of entering any statements of witnesses in the diary under section 172 at all and even now we think that an executive order giving effect to the law would have a salutary effect,”
(8) In Gogikari Narsoji v. State () I.L.R 1955 Hyderabad 644, it was held per head-note as under:—
“That by the Amendment Act II of 1945, sub-section (3) was added to section 161, Criminal. Procedure Code. The new sub-section provides that the police officer may reduce into writing any statement made to him in the course of examination under this section and if he does so, he shall make a separate record of the statement of each such person whose statement he records. The word ‘shall’ used in the sub-section plainly shows the mandatory nature of the new provision. The result is that a police officer during the investigation is not bound to record a statement by a witness. But if he does record it in writing, he must record the statement of each witness separately. He cannot record a statement that a certain witness corroborates or agrees with the statement of another because that would be a mere opinion or impression. When the above provision is not strictly followed, the interest of the accused is prejudiced and the testimony of such witnesses must be recorded with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence.
The Amendment Act XVIII of 1923 substituted a new subsection to sub-section (1) of section 163 by which the words ‘whether in a police diary or not’ were added; it is now clear that the statements of witnesses during investigation, even though taken down in the special diary, can be used by the accused for the purpose specified in the provision.”
To the same effect was the law laid down in Maroti Mahagoo and others v. Emperor () A.I.R 1948 Nagpur 74 and Gouranga Mohapatra v. State () A.I.R 1954 Orissa 49: It was further observed in the latter ruling that the provision of subsection (3) of section 161, Criminal Procedure Code was introduced only to stop the mischief of certain investigating officer, who prepared their case diary in such a way that no assistance could be obtained either by the Court or the accused from the record.
9. In Bejoy Chand Patra v. The State () A.I.R 1950 Cal. 363, it was held per head-notes (a) and (d) as under:—
“An investigating officer is not bound to record the statements of a witness. If he does reduce statements into writing he must make a separate rerord of the statement of each of the persons whose statements he records. He cannot record a condensed version of the examination of all of them or a precis of what the witnesses are supposed to have said. Non-compliance with the provisions of section 161(3), however, does not make the evidence of the witnesses inadmissible though it is a matter which the Court is entitled to consider when dealing with credibility. The accused should be furnished with a copy of the gist of the statements recorded whether such can or cannot be used in cross-examination. The fact that the statements cannot be used is no ground for denying the right of the accused to these statements.”
(10) The legal position, therefore, is that section 161(3), Criminal Procedure Code, does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he must record the statement of each witness separately. If in a case statements of witnesses were first recorded by the investigating officer and again by a senior officer, copies of both statements should be supplied to the accused in view of the provisions of section 173(4), Criminal Procedure Code.
(11) However, if the police officer does not record the statements of all or some of the witnesses under section 161(3), Criminal Procedure Code, but cleverly incorporates the same in the case diary maintained under section 172, Criminal Procedure Code in the belief that by doing so those statements can be kept back from the knowledge of the accused, then the accused cannot be deprived of the copies of those statements. The provisions of sections 162, 173(4) and 207-A(3), Criminal Procedure Code, impose an obligation upon the prosecution agency to supply copies of statements of witnesses who are intended to be examined at the trial to enable the accused to obtain a clear picture of the case against him, to utilise them in the course of cross-examination to establish his defence and also to shake the testimony of the prosecution witnesses. The words “such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record” in sub-section (1) of section 162, Criminal Procedure Code, make it abundantly clear that statements of witnesses during investigation even if taken down in the police diary maintained under section 172, Criminal Procedure Code, can be used by the accused for the purposes specified in proviso to section 162(1), Criminal Procedure Code. A very valuable right is given to the accused under the proviso to section 162(1) and he can exercise this right only if the copies of all the statements made by the witnesses during the investigation, whether recorded under section 161(3) or in the police-diary maintained under section 172, Criminal Procedure Code, are supplied to him. It follows, therefore, that the accused is entitled to the copies of statements of persons whom the prosecution proposes to examine as witnesses even though those statements are recorded in the police-diary maintained under section 172, Criminal Procedure Code.
(12) For the reasons given above, it is held that the order of the learned Sessions Judge, Sangrur is correct and the same is affirmed. There is no substance in this revision petition and the same is dismissed.
K.S.K
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