Prem Prakash, J. - (1.) THIS matter upon a reference made by a learned Single Judge of this Court arises from a conviction under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (to be hereinafter referred as the Act). The question 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 statements of persons examined by him under Section 173 (4) of the Old Code of Criminal Procedure (Corresponding to Section 207 of the Code of Criminal Procedure, 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 for 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 Bengal A.I.R, 1974 S.C. 393; State of U. P. v. Durga Prasad A.I.R. 1974 S.C. 2136 and The Assistant Collector of Customs. Bombay v. L. L. Melwant 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 Chap. 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 Prasad' case A.I.R. 1974 S.C. 393 the Supreme Court had the occasion to consider the relevant provisions of the Act and the nature and scope of the inquiry 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 attributes of an officer incharge 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 provisos 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 cognizance of the offence. On the conclusion 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 accused, 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 statements 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 statements 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 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. When a person is arrested for an offence punishable under the Act, the officers of the Force have the power to investigate into the offence and the statements recorded by them during the course of investigation do not attract the provisions of Section 162, Cr.P.C. It being not an investigation under Chapter XIV of the Code, the officer of the Force is under a duty, as provides the proviso (b) to Section 3(2) of the Act: to make a full report to his official superior who in his turn, to initiate the prosecution must file a complaint under Section 190(1) (a) of the Code to enable the Magistrate to take cognizance of the offence. In the consequence, 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. We are in respectful agreement with the decision in Premchandra v. State 1973 A.W.R. (H.C.) 403 and record our respectful dissent from the view taken by a learned Single Judge of this court in Indal Singh v. State 1972 A.C.J. 188. Before we turn to the second question, it would be relevant to consider what use the prosecution or the accused can make of such statements at the trial for an offence under the Act.
(3.) SECTION 9 of the Act empowers the officer of the Force to summon any person to give evidence or to produce a document or any other thing in any inquiry which he may be making for any of the purposes of the Act. Sub-section (4) provides that every such inquiry shall be deemed to be a "judicial proceeding" within the meaning of SECTIONs 193 and 228 of the Indian Penal Code. It is under the authority given by subsection (4) that the Officer of the Force can take evidence and record statements. If the statement, which is recorded by an officer of the Force in the exercise of his powers under this section, be an acknowledgment of guilt, it will be too much to say that the statement is made to police office since a police officer never acts judicially and no proceeding before a police officer is deemed under any provision, so far as we are aware, to be a judicial proceeding for purposes of SECTIONs 193 and 228, Penal Code or for any other purpose. The statement of a witness recorded during the course of the inquiry being a former statement made by the witness before an authority legally competent to investigate the fact regarding the alleged commission of the offence may be proved in order to corroborate his testimony at the trial: See SECTION 157 of the Indian Evidence Act. The prosecution may, with the leave of the court under SECTION 154 of the Evidence Act, cross-examine the witness with reference to the statement recorded by the inquiry officer in the event of the witness appearing to be hostile or exhibiting an interest "adverse" to the prosecution. And when the prosecution seeks to avail of the statement of the witness for the purposes aforesaid, the accused shall be entitled to the copy of such statement to enable him to lay foundation for impugning the credibility of the witness. What legitimate use the accused may have of the prior statement made by a witness in the course of inquiry is the question that next falls for our consideration. Learned Counsel for the revisionists has urged that unless he can get the copies of the statements, they will not be in a position to exercise the right under Section 145 of the Indian Evidence Act. We agree with the learned Counsel that the inconsistency or contradiction shown to exist between the statements made in the course of inquiry and what the witness has said in the examination-in-chief may affect his credit. But his previous statement cannot be used to get rid off the evidence which is giving unless it is read to him or is allowed to read it, the obvious reason being to give him an opportunity of explaining the apparent discrepency. "It is an elementary rule that the contents of a witten document, if they are to be proved, should be proved by production of the document and not by oral testimony. In Rescoe's Evidence in Civil Actions, 19th Edition, Page 160, it is stated: "In consequence of the general rule that the contents of a written document ought to be proved by the production of it, and not by oral testimony, it was held in The Queens case, 2 Br & B 287 that it was not competent to ask a witness, even on cross-examination about a statement formerly made by him in writing without showing to him the writing referred to and putting it in evidence as part of the case of the cross-examining party either immediately or in the ordinary course of the cause: and this opinion of the judges has been since constantly acted upon, whether the question be put merely to discredit the witness by contradicting him, or as conducive to proof of the matter in issue" (See Rex v. Anderson, The Law Times Reports Volume 142, page 580). This being so but the accused cannot have the right to see the statement of a witness examined by an "order of the force" when neither the Act bestows such right upon him nor does Section 145, Indian Evidence Act make an express provision for the issue of the copy. A statement recorded by an officer of the Force is not a public document within the meaning of Section 74 of the Evidence Act, (See Isab Mandal v. Queen Empress, I. L. R. 28 Cal. 348 and therefore the accused cannot claim to get copies of the statement in advance. There is no rule which in our opinion, touches such a case or which in any way recognise such a right. Accordingly we answer the second question in negative.;