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Govind Raghunath Sawant v. B.A Kakade

Bombay High Court

Dec 3, 1973

Judgment

Subsequent
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Judgment Summary — Vaidya, J.

Factual and Procedural Background

The petitioner is accused No. 7 in Case No. 914.P/71 pending before the Presidency Magistrate at Victoria Terminus, Bombay. On November 5, 1973 the petitioner applied for production in Court (or furnishing to him) of the statements of prosecution witness P.W. 1, Ranganathan. Those statements had been recorded by a Railway Protection Force officer, S.I. Kakade, on December 30, 1970 and also by a police officer at Kurla Police Station. The accused sought the statements to contradict P.W. 1 under s. 145 of the Evidence Act. The prosecution opposed the application. The learned Presidency Magistrate rejected the application on the ground that cases under the Railway Property Unlawful Possession (R.P.U.P.) Act involve procedure under s. 252 Cr.P.C. and not s. 251(A) Cr.P.C., and that copies of documents referred to in s. 373(4) Cr.P.C. cannot be claimed as of right by the accused; accordingly the Magistrate held there was no provision to direct production or furnishing of the witness statements. The petitioner challenged that order by way of revision to the High Court.

Legal Issues Presented

Whether, in the absence of a specific statutory obligation under the R.P.U.P. Act or the Criminal Procedure Code to supply copies, the Court can compel the prosecution to produce, in Court, statements of prosecution witnesses (specifically statements of P.W. 1) for inspection by defence counsel where the accused seeks them for the purpose of contradicting the witness under s. 145, Evidence Act.
Whether the accused's rights under art. 22(1) of the Constitution and the principles of natural justice and fair hearing require the Court to compel production of such statements despite the absence of an express statutory provision.
Whether the Court may invoke s. 165 of the Indian Evidence Act, 1872, to order production of documents by the prosecution for the purposes of discovery or obtaining proper proof of relevant facts.

Arguments of the Parties

Petitioner's Arguments (Mr. Adik)

Although there is no statutory provision in the R.P.U.P. Act or the Criminal Procedure Code making it obligatory on the prosecution to supply copies of statements recorded by the Railway Protection Police and ordinary police, general principles of fair hearing and natural justice demand production.
The fundamental right under Article 22(1) — the right to consult and be defended by a legal practitioner of choice — requires the Court to compel production so the defence counsel can obtain instructions and properly defend the accused.
The petitioner indicated he would be satisfied if the statements were made available for inspection in Court (rather than supplied as copies to defence).

Prosecution's Arguments (Mr. Bhonsale)

The contention that production must be ordered has already been negatived by a decision of Rege J. in The State of Maharashtra v. Vishwanath Rajaram Mourya (Criminal Revision Application No. 156 of 1973, decided July 10, 1973, unreported).
The issue is pending reference to a Division Bench of the High Court (notice issued to the Attorney General), and therefore this matter should be kept back pending the Division Bench's decision.
The prior decisions on which he relied were said to deal with supply of copies to the defence (for which no provision exists in Cr.P.C. or under the R.P.U.P. Act), whereas the present application sought production in Court; notwithstanding this distinction, Mr. Bhonsale urged delay pending higher court consideration.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
The State of Maharashtra v. Vishwanath Rajaram Mourya (1973) Criminal Revision Application No. 156 of 1973 (Rege J., decided July 10, 1973, unreported)	Authority relied on by prosecution to argue against compelling production/supply of witness statements (as previously negatived by Rege J.).	The High Court noted this decision had been referred to a Division Bench and was relied upon by the prosecution, but distinguished it on the facts because that case concerned supply of copies to defence rather than production for inspection in Court; the Court therefore refused to keep the present matter pending the Division Bench decision.
Dallison v. Caffery [1964] 2 All E.R. 610	Principle that a prosecuting counsel or solicitor who knows of a credible witness whose evidence tends to show the prisoner to be innocent must either call that witness or make his statement available to the defence; withholding such evidence from the court or defence is reprehensible.	The Court relied on Lord Denning M.R.'s and Diplock L.J.'s observations in Dallison to support the ethical/moral duty of the prosecutor to produce or make available witness statements where they are relevant to defence, and used those observations to reinforce the duty to produce statements in Court for inspection.
R. v. Horace Henry Bryant; Victor Richard Dickson (1946) 31 Cr. App. R. 146	Cited (by Diplock L.J. in Dallison) for the proposition that a prosecutor should make a witness available to the defence if the witness's evidence is inconsistent with guilt or helpful to the accused.	Referenced indirectly through the Dallison judgment to demonstrate established common-law authorities supporting the proposition that prosecutors should make available evidence helpful to the defence; the High Court treated these authorities as persuasive on the moral and ethical duty of the prosecution.

Court's Reasoning and Analysis

The Court's analysis proceeded through a sequence of constitutional, procedural and evidentiary considerations, rooted in both statute and principles of fair trial:

Constitutional protection and fair trial necessities: The Court emphasized Article 22(1) of the Constitution, which guarantees the right of an arrested person to consult and be defended by a legal practitioner of his choice. The judge reasoned that this guarantee would be hollow unless the accused is given reasonable assistance by the State—specifically, access to material necessary for counsel to obtain instructions and prepare an effective defence.
Practical necessity for access to statements: The Court observed that a defence lawyer cannot meaningfully cross-examine witnesses or construct a defence without studying the record and receiving instructions from the client, which requires access to the statements on which the prosecution intends to rely. The criminal trial should not be a “game of blind-man's-buff”; natural justice and fair play require that particulars of the charge and the evidence be available to the accused when reasonably sought.
Ethical and moral duty of prosecutor — persuasive authorities and editorial support: The Court referred to an editorial in the New Law Journal and to the Dallison judgment (including remarks of Lord Denning and Diplock L.J.) to underline a prosecutorial moral/ethical duty to make available information favourable to the defence or to produce statements of witnesses the prosecution proposes to call.
Statutory power under s. 165, Indian Evidence Act, 1872: The Court held that the learned Magistrate had overlooked s. 165 of the Evidence Act, which gives a Judge power to order the production of any document or thing in order to discover or obtain proper proof of relevant facts. The Court noted that the only statutory restrictions on that plenary power are contained in ss. 121–131 and ss. 148–149 of the Evidence Act, and that those sections did not apply to the facts of this case.
Distinction from statutory regimes that mandate supply: The Court acknowledged that s. 173(4) Cr.P.C. (police prosecution) contains mandatory provisions for supply of copies in that context, but held that the absence of a similar mandatory provision under the R.P.U.P. Act does not mean the prosecution may withhold statements altogether or that the Court is powerless to compel production when needed for defence under s. 145 Evidence Act.
Duty to scrutinize reasons for withholding: The Court held it is the duty of the Court to inquire whether any particular reason exists for withholding copies from inspection by the defence and whether injustice would result from the defence being taken by surprise. In the absence of such justifying reasons, production should be ordered.
Conclusion from statutory and ethical considerations: Combining the constitutional right to defence, the ethical duty of prosecutors (as reflected in Dallison and commentary), and the statutory power under s. 165, the Court concluded that the prosecution should be required, in the circumstances of this case, to produce the witness statements in Court for inspection by defence counsel.

Holding and Implications

Holding: Rule made absolute. The Court ordered that the statements shall be produced by the prosecution in Court for inspection by the defence counsel.

Implications (direct effect):

The prosecution is required to produce the statements of P.W. 1 in Court so that defence counsel may inspect them.
The Court expressly stated that nothing in the order should be construed as reflecting adversely on the conduct of the Prosecutor or the Investigating Officer in the particular case; the Judge noted that the prosecutors appeared to have misunderstood the effect of Rege J.'s judgment.
When the statements are produced in Court, the Magistrate is to deal with them in accordance with law, having regard to the observations made in the judgment (including considerations of fairness, the accused's right to defend, and any statutory constraints where applicable).
The Court refused to await the Division Bench's consideration of the Rege J. decision because it considered the facts distinguishable (production for inspection in Court as opposed to supply of copies to the defence), and therefore proceeded to decide and make the rule absolute in the present matter.

No broader declaration of law beyond the above directions was made in the opinion; the ruling addresses the specific relief sought in the revision application and instructs the Magistrate to act in accordance with law when the statements are produced.

Show all summary ...

Vaidya, J.:— The petitioner in the above revision application is accused No. 7, in Case No. 914.P/71, which is pending in the Court of the Presidency Magistrate at Victoria Terminus, Bombay.

2. On November 5, 1973, an application was made on behalf of the petitioner for production in Court for furnishing to him the copies of the statements of a prosecution witness in the case, P.W 1, Ranganathan. Admittedly, statements of the said witness were recorded by the Railway Protection Force Officer, S.I Kakade, on December 30, 1970 and also by a police officer, at Kurla Police Station. The accused stated in the application that the copies of the statements required should be ordered to be produced in Court or furnished to him for the purpose of contradicting P.W 1 Ranganathan, under s. 145 of the Evidence Act. The application was opposed on behalf of the prosecution. The learned Presidency Magistrate upheld the objection, making the following order:

“These cases under R.P.U.P Act involve the procedure u/s. 252 Cr. P.C and onwards and not u/s. 251(A) Cr. P.C and hence copies of documents referred to U/sec. 373(4) Cr. P.C cannot be claimed as of right by the accused. As the accused cannot claim the copy as of right, there is no provision to direct the Prosecution to furnish the copy of statement of P.W 1, even for purposes of section 145 Evidence Act. Hence the application is rejected. Prosecution cannot be further ordered to place the original or copy of the statement of P.W 1 as there is no provision in Cr. P.C to give such direction for these cases, under the R.P.U.P Act.”

3. The said order is challenged in the above revision application.

4. Mr. Adik, the learned counsel appearing for the petitioner, submitted that even though there was no provision in the Railway Property Unlawful Possession Act or the Criminal Procedure Code, making it obligatory on the prosecution to supply copies of statements of witnesses recorded by the Railway Protection Police and the ordinary police, general principles of fair hearing and natural justice and the fundamental right of the citizen to be defended by a legal practitioner under art. 22(1) of the Constitution required the Court to compel the prosecution to produce the documents in Court.

5. Mr. Bhonsale, the learned Assistant Government Pleader, submitted that this contention has been negatived by Mr. Justice Rege in The State of Maharashtra v. Vishwanath Rajaram Mourya . 1973 Criminal Revision Application No. 156 of 1973, decided by Rege J., on July 10, 1973 Unrep..; and the matter has been referred to a Division Bench of this Court, which has issued notice to the Attorney General. Mr. Bhonsale therefore submitted that this matter should also be kept back till the Division Bench decided the matter, which arises in some matter other than the matter decided by Rege J. But the facts of those cases are distinguishable. In those cases, the application was not for production of the documents “in Court”, but only for supply of copies to the defence, for which there is no provision in the Criminal Procedure Code or under the R.P.U.P Act or under any other Act. In the present case Mr. Adik says that he will be satisfied if the statements are allowed to be inspected in Court by the defence counsel. I, therefore, do not think it necessary to keep back this matter till the Division Bench decides the matter.

6. In my judgment, the protection given to a citizen under art. 22(1) of the Constitution, which says:

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”,

will be a hollow protection if the accused is denied reasonable assistance by the State to defend himself. A legal practitioner cannot defend an accused person without instructions. He is not a computer who can merely imagine defences and question witnesses all of a sudden in Court. He has to study the record and take instructions from his client with respect to such record before he can cross-examine witnesses or build up a defence against the prosecution case. A criminal trial is not like a game of ‘blind-man's-buff’. Whenever the accused is not in a position to know what he is being tried for and on what basis he is tried, natural justice and fairplay require that if he reasonably seeks assistance of the Court for particulars of the charge or particulars of the evidence on which the charge is framed, which ought in all fairness to have been supplied by the prosecution, the Court should, as far as possible, help him in getting those particulars from the prosecution, unless such a course is prohibited by some express provisions of law or undesirable in public interest.

7. In this connection, it is worthwhile taking into consideration the views expressed in an editorial, under the title “Injustice … In Practice”, of a renowned British publication, the “New Law Journal”, Volume 123, No. 6009 dated August 9, 1973. In that legal magazine it has been rightly pointed out (p. 733):

“Injustice is not just about the big cases. Nor is it always about those cases which raise great issues of social principle. Often it is what happens in a relatively small case because, for one reason or the other, our legal system cannot cope with a situation which leaves a mark on an individual”.

8. The editorial article explains what happened to one Phillip Jones and points out how great injustice was done to him by the prosecution denying him a document.

9. The editorial then discusses the principle which ought to have been followed by the Court as follows (p. 734):

“The first and most important principle raised by Mr. Jones' case is that of the supply of information to the defence by the prosecution. It may be recalled that the Law Society in their statement, ‘Pretrial Discovery’ which appeared in the Annual Report for 1965/66 recommended that ‘whilst the defence should not initially be entitled to be supplied with statements by prosecution witnesses, they should be entitled, on request, to a sight of any statements made by a prosecution witness relevant to the proceedings, and where the statement contains no other information rendering its production undesirable, they should be entitled to a copy…’. The objection was made at that time that the defence should be entitled not only on request but otherwise automatically to receive such statements.”

10. The editorial also refers to the judgment of Lord Denning M.R, in Dallison v. Caffery . [1964] 2 All E.R 610. where Lord Denning observed (p. 618):

“Next, counsel for the plaintiff pointed out that, at the committal proceedings, the evidence of Mr. and Mrs. Stamp and Mrs. Lansman was not made available to the magistrates. I do not see that this should be taken against the defendant. He did not conceal these statements. He put them before his superior officers and also before the solicitor for the prosecution. It was not his fault that the solicitor did not think it necessary to put them before the magistrates; nor do I think that the solicitor need have done. The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish. Here the solicitor, immediately after the court proceedings, gave the solicitor for the defence the statement of Mr. and Mrs. Stamp; and thereby he did his duty”.

11. In view of these remarks the editorial rightly concluded (p. 735):

“…We would accept that while there would appear to be no statutory or technical reason why the prosecuting police authority should have advanced the information required to Mr. Jones' solicitor there is a very firm moral and ethical reason why this should have been done.”

12. Even in the present case, it is true that there is no statutory or technical reason why the prosecuting police authority should suo motu supply copies to the accused or produce them before the Court. But I think that in protecting and enforcing the fundamental right of defence under art. 22(1) of the Constitution of India and the ordinary principles of natural justice, which is nothing else but fairplay in action, it is the moral and ethical duty of the prosecutor at least to produce before the Court the statements of the witnesses, whom he wants to examine in the Court, when the accused applies for such production.

13. The learned Magistrate appears to have lost sight of s. 165 of the Indian Evidence Act, 1872, which runs as follows:

“The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:”

14. The only restriction on this plenary power conferred on Court is to be found in ss. 121 to 131 and 148 and 149 of the Evidence Act. Those sections do not apply to the facts of this case.

15. It seems to me that nobody drew the attention of the learned Magistrate to the provisions of s. 165 of the Evidence Act which confer powers on every Court to compel any party to produce any document to meet the ends of justice subject to the restrictions mentioned in that section. So, apart from the ethical and moral duty mentioned above, the learned Magistrate appears to have lost sight of his own lawful power to compel the prosecution to produce the documents in Court.

16. It is also necessary to bear in mind the weighty observations made by Dip-lock L.J at p. 622 in the above Dallison's case:

“Next, counsel for the plaintiff contends that there was evidence fit to be left to the jury that the defendant did not honestly believe that the credible evidence known to him raised a case against the plaintiff fit to go to a jury. This contention seems to me to be based on the erroneous proposition that it is the duty of a prosecutor to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person. A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or although not inconsistent with his guilt is helpful to the accused, the prosecutor should make such witness available to the defence (see R. v. Horace Henry Bryant. Victor Richard Dickson . 1946 31 Cr. App. R. 146.). It is not the prosecutor's duty to resolve a conflict of evidence from apparently credible sources: that is the function of the jury at the trial. The prosecutor's knowledge that there is such a conflict does not of itself constitute lack of reasonable and probable cause for the prosecution, nor is it inconsistent with the prosecutor's honest belief that there is a case against the accused fit to go to a jury. In the present case the information known to the defendant which supported the plaintiff's alibi was not inconsistent with his guilt, for it left time enough for him to get to Dunstable, commit the theft and return to Clapton. Furthermore, the prosecuting solicitor acted with more than necessary propriety in that not only the relevant witnesses but also their statements were made available to the plaintiff's solicitor immediately on the plaintiff's committal.” (Italics supplied).

17. I, therefore, think that either it would be the duty of the prosecutor to supply copies or at least to produce them in Court in the facts and circumstances of the present case. It would be the right of the accused to insist upon those copies being produced in Court in any event. It is the duty of the Court to find out from the facts and circumstances whether any particular reason exists for withholding copies from inspection by the defence and whether injustice would be done to the accused in a particular case, if the defence is taken by surprise and statements recorded of witnesses are not available in advance to the accused when the witnesses are being cross-examined.

18. I really fail to understand why the Railway Protection Police and the Prosecutor should feel shy of producing the statements in Court. If they are honest statements honestly recorded by honest officers, it would be dishonest to conceal them from the Court. If they are dishonest statements recorded by dishonest officers, it would be still more dishonest to conceal them from the Court. In my opinion, it is wholly wrong on their part to withhold these documents. As Lord Justice Diplock has pointed out, it is but fairness on the part of the prosecuting machinery to supply all information to the defence counsel so as to enable the defence counsel to defend the accused in the real sense of the term.’

19. The defence of an accused is not merely a technical or formal matter or ritual matter. It has to be real. It must be backed by proper and adequate instructions from the client, which can be taken only if the prosecuting machinery enables the counsel appearing for the defence to know in advance what they have against the accused.

20. That is why in respect of prosecution by the Police under s. 173(4) of the Criminal Procedure Code, special provisions have been made, making it mandatory on the prosecuting machinery to supply the copies. Merely because such a mandatory provision is not made in respect of other prosecutions, it does not mean that even though the accused wants to defend himself with the assistance of counsel and even though the counsel feels that it is necessary to have statements of the witness for cross-examining the witness under s. 145, Evidence Act, the prosecution can withhold the production of the statements in Court and the Court should feel powerless and impotent to compel the production of the statements.

21. The rule is, therefore, made absolute. The statements shall be produced by the prosecution in Court for the inspection of the defence counsel. Nothing stated herein above shall be construed as reflecting in any manner on the conduct of the Prosecutor or the Investigating Officer, in this particular case, who as stated by Mr. Bhonsale, appears to have misunderstood the effect of the judgment of Rege J. When the statements are produced in Court, the Court shall deal with them in accordance with law in the light of the observations made hereinabove.

22. Rule made absolute.