SARRAF, J. - (1.) THIS criminal misc. petition under section 482 Cr. P. C. is directed against the order dated 14. 3. 2007 passed by Additional Sessions Judge No. 1, Deeg in sessions case No. 20/2007 whereby he has rejected the application filed by the petitioner under Section 91 read with Sections 173, 207 Cr. P. C.
(2.) A perusal of the copy of the application filed by the petitioner in the trial Court shows that the petitioner has prayed for furnishing a copy of the statement of Pooja recorded on 4. 7. 2006 and a copy of the affidavit of Suresh allegedly submitted before S. H. O. Deeg and it has been further prayed that statements of certain other witnesses who were examined by the Investigating Officer during the investigation be directed to be produced in the Court as the same have not been submitted with the report filed u/s. 173 Cr. P. C. and copies of such statements be provided to the petitioner. Heard learned counsel for the petitioner, learned public prosecutor and learned counsel for the complainant. As regards the affidavit of Suresh allegedly submitted before S. H. O. Deeg, learned counsel for the petitioner does not press his prayer for providing a copy thereof. As regards the statement of Pooja allegedly recorded on 4. 7. 2006 if Pooja was examined on that date during investigation a copy of such statement is required to be supplied to the petitioner. Clause (b) of sub-section (5) of Section 173 Cr. P. C. provides that the statements recorded under Section 161 Cr. P. C. of all persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate alongwith the report under Section 173 Cr. P. C. subject of course to the provisions of sub-section (6) of Section 173 Cr. P. C. The object of supplying the copies of statements recorded under Section 161 Cr. P. C. is to enable the accused to defend himself properly against the charge framed/to be framed against him. I am therefore of the opinion that if Pooja cited as a prosecution witness in the report submitted by the police under Section 173 Cr. P. C. was examined more than once then the copies of all the statements of Pooja should be supplied to the petitioner in accordance with Clause (b) of sub-section (5) of Section 173 Cr. P. C. So far as the question of supplying of the copies of statement of persons other than those who were cited as prosecution witnesses in the report submitted under Section 173 Cr. P. C. is concerned, strictly speaking sub-section (5) of Section 173 Cr. P. C. does not require the prosecution to supply the copies of the statements of such persons recorded under Section 161 Cr. P. C. But it does not mean that there can be no case in which the necessity of production of statements of such persons who have not been cited as prosecution witnesses, cannot arise. It is conceivable that one or more of these persons who were examined under Section 161 Cr. P. C. but who are not proposed to be cited as prosecution witness might be the persons acquainted with the facts and circumstances of the case and their statements might be relevant for the purpose of deciding the question whether the petitioner is guilty or is innocent. In such cases, if a material witness is withheld by the prosecution a question may arise whether adverse inference should be drawn against the prosecution for withholding a material witness. The trial Court may, therefore, direct the prosecution to produce the copies of the statements of those persons who appear to be acquainted with the facts and circumstances of the case or, in other words, who appear to be the material witnesses but have not been cited as prosecution witnesses. The Court may examine such witnesses if for a just decision in the case the Court considers the examination of such witnesses to be necessary under Section 311 Cr. P. C. read with Section 165 of the Evidence Act. In appropriate cases, the accused may also be supplied the certificate copies of the statements of such witnesses so that the accused may consider whether the witness should be called as a defence witness or the Court should be requested to draw adverse inference for withholding a material witness.
(3.) FOR the above reasons the petition is partly allowed in the following terms:- (a) The prayer for providing a copy of the affidavit of Suresh allegedly submitted before S. H. O. Deeg is dismissed as not pressed. (b) If Pooja was examined more than once during investigation (including re-investigation and further investigation) the copies of all such statements recorded under Section 161 Cr. P. C. shall within a period of one month from the date of passing of this order be supplied to the petitioner. (c) Learned trial Court shall peruse the case diary in order to find out whether any material witness who may be said to be a person acquainted with the facts and circumstances of the case was examined under Section 161, Cr. P. C. and, if so, whether such person has been withheld by the prosecution by not citing him as a prosecution witness. If so, learned trial Court will consider whether it is necessary in the interest of justice to direct the prosecution to produce the statements of such person recorded under Section 161 Cr. P. C. (d) In case learned trial Court directs production of the statements recorded under Section 161, Cr. P. C. of any person (other than those cited as prosecution witnesses) in the Court the petitioner may be supplied a copy of the statements on payment of necessary fee according to the rules applicable for the supply of copies. The petition stands disposed of as above. .;