- (1.) THIS is a reference by the learned Additional Sessions Judge, Tonk recommending that the order of the City Magistrate, Tonk dated the 15th April, refusing to issue copies of statements of prosecution witness before the Police during the course of investigation to the accused under sec. 162 of the Criminal Procedure Code.
(2.) THE facts are that a case under secs. 452, 325 and 324 of the Indian Penal Code is Pending against the accused Goria, Chotia and Bansi before the City Magistrate, Tonk. After the charge had been framed against the accused, a date was fixed for further cross-examination of the prosecution witnesses under sec. 256 of the Criminal Procedure Code. THE accused applied to the City Magistrate a week before the date fixed for grant of copies of the statements of prosecution witnesses before the police for the purpose of further cross-examination. Learned Magistrate refused to grant such copies holding that copies could be furnished only when the witness is in the witness box and is under examination. Against this order of learned Magistrate, the three accused went in revision to the court of the Additional Sessions Judge, Tonk who has made this reference and has recommended that the order of the City Magistrate be set aside and he be directed to issue copies to the accused as requested. Parties have not appeared. I have gone through the record of the case and have also perused the explanation of the learned City Magistrate submitted under Rule 80 of the High Court Rules (Criminal ). Learned Magistrate has said in his order that copies could be issued while the witness was under examination and in the witness box. He has not referred to any authority in his order, but in his explanation under Rule 80 of the High Court Rules (Criminal), he has cited a ruling in the case of Emperor vs. Nga Lun Thaung (1) (AIR 1935 Ran. 370. ). In that case it was held that "if, and so soon as any prosecution witness gives evidence in support of the charge against him the accused is entitled to request the court to refer to that witness's statement to the police and unless the court is of opinion that any part of the statement falls within the second proviso of sec. 162, the court must direct that the accused be furnished with a copy of the entire statement of the witness to the police/whether or not in the opinion of the court there is anything in the statement which is inconsistent with the evidence that the witness has given in the course of the inquiry of trial; and the statement in whole or in part as the case may be, may then be used in the manner prescribed in the first proviso to sec. 162. " Even according to this ruling, copies of the statement of the prosecution witnesses who had been examined before the charge ought to have been supplied to the accused. The words used in first proviso to sec. 162 are however, "when any witness is called for the prosecution in such an inquiry or trial whose statement has been reduced into writing. " The words "called for the prosecution" are not the same as "examined by the prosecution". They relate to a stage before the witness is actually put into the witness box. It has been held by a Division Bench in the case of Emperor vs. Ajit Kumar Ghosh and others (2) (AIR 1946 Cal. 169.) that "the proper time to make the application is as soon as possible after suitable steps have been taken to secure the attendance in court of the prosecution witnesses. " As regards the view that the copies should be furnished while the witness is in the witness box, it has been observed that "if the application for copies is postponed until after a witness has entered the witness box it is not unlikely that the court's duties in connection with this matter may be performed in a hurried and perfunctory fashion, and in any case, the examination of the witnesses will often be interrupted and in jury trials the attention of the jury may be distracted by legal discussions with which they are not directly concerned. In the case of Murtiza Khan vs. Emperor (3) (AIR 1934 Nag. 138.), it was observed that it was clear that "the accused is entitled as of right to obtain a copy, not when the witness has been examined, but as soon as he is called for the prosecution. " I respectfully agree with the view of those High Courts which have held that the accused is entitled to get copies as soon as steps have been taken by the prosecution for the attendance of a witness in court. The words "call for the prosecution" under proviso to sec. 162 cannot be restricted to the time when the witness is actually put into the witness box. If that were so, the legislature would have used some more appropriate word like "examined" or "is being examined. " The word "call" has been used in sec. 162 so that before a witness is actually examined the accused might have opportunity to prepare for cross-examination in the light of the statements made before the police. Unless a copy of the statement before the police is in possession of the accused at the time when the prosecution witness is tendered for examination, it would be difficult for him to find out whether the witness had made any statement before the police contradictory to his statement before the court. I do not think the Magistrate was justified in refusing to the accused the copies of the statements of those prosecution witnesses before the police who were called for examination before the court by the prosecution. The reference is accepted, the order of the learned Magistrate is set aside and he is directed to issue copies to the accused of the statements before the police of those prosecution witnesses who were called by it for examination before the court. .;