SHEO RAJ Vs. STATE

JUDGEMENT

(1.) This case has been laid before this Bench for decision of the question whether "the memorandum of identification proceedings held by a Magistrate acting under Section 164, Cr. P. C. is admissible without proof". The question arose before Kailash Prasad, J., during the hearing of the appeal and he referred it to a Full Bench because of a conflict between Asharfi v. State, 1960 All LJ 595 : (AIR 1961 All 153) and the State v. Chandrapal Govt. Appeal No. 1931 of 1961, DA 18-8-1962 (All). In the latter case Uniyal and Gyanendra Kumar, JJ., without noticing the decision in Asharfi's case 1960 All LJ 595 :(AIR 1961 All 153) held, contrary to what was held in that case, that Section 80 of the Indian Evidence Act does not apply to a memorandum of identification proceedings prepared by a Magistrate and that it cannot be presumed to be genuine and must be proved to be so by evidence. Criminal Appeal No. 766 of 1962 is connected with this appeal. In Criminal Revision No. 1291 of 1963 the only question raised on behalf of the applicant was whether a memorandum of identification proceedings was admissible in evidence on being presumed to be genuine under Section 80 of the Evidence Act and our brother Bishambhar Dayal doubting the correctness of 1960 All LJ 595 : (AIR 1961 All 153) referred the case to a larger Bench, Criminal Appeal No. 1889 of 1963 being with Criminal Revision No. 1291 of 1963 has been referred to a larger Bench alone with it. (1a) Section 80 of the Evidence Act reads as follows:- "Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence.........given by a witness in a judicial proceeding or before any officer authorised by Law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to he signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume that the document is genuine that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken." There are bewildering numbers of "and" and "or", but the section can be split up into two parts, one relating to a record or memorandum of evidence whether given in a judicial proceeding or before an officer authorised by law to take such evidence and the other relating to a statement or confession by a prisioner or accused person. A record or memorandum of evidence or a statement or confession can be presumed to be genuine if it is taken in accordance with law and purports to be signed by a Judge, Magistrate or an officer authorised by law to take such evidence. In these cases we are concerned with documents purporting to be memoranda of statements made by persons to Magistrates to the effect that they would identify the persons who committed certain offences and of their pointing out certain persons as the offenders. The memoranda show that the persons pointed out the offenders when standing mixed with other persons in what is known as identification parade; they simply pointed them out and did not orally state that they were the persons who committed the offences. But a statement can be made by signs also and their pointing out certain persons after saying orally that they would point out the offenders amounts to their saying that the persons pointed out were the offenders. In effect, therefore, the memoranda are of statements made by persons before Magistrate to the effect that certain persons had committed certain offences. If Section 80 applies to them it applies to them only on the ground that they are memoranda of evidence given by witnesses in judicial proceedings or before officers authorised by law to take such evidence. They are not statements or confessions by prisoners or accused persons. It was not contended before us that tha words "by any prisoner or accused person" occurring in Section 80 govern only the word "confession" and not also the word "statement". The documents purport to be statements, but not of prisoners or accused persons. The words "by any prisoner or accused person" govern also the word "statement", because if they governed only the word "confession" the word "statement" would be left all alone and would be too vague to make any sense. Further the fact that the article "a" is not repeated before the word "confession" indicates that the phrase "a statement or confession" is to be taken as one indivisible phrase and that the words "by any prisoner or accused person", which immediately follow it, must govern the whole of it and not a part of it. The only way in which the four phrases, "a statement by any prisoner", "a statement by any accused person", "a confession by any prisoner" and "a confession by any accused person" can be joined together in a concise phrase is the way employed in Section 80. This view finds support in Ram Sanehi v. State, 1963 All U 61 : (AIR 1963 All 308).

(2.) In order that the memoranda under consideration may be governed by Section 80 they must fulfil the following three requirements: (1) they are memoranda of evidence, (2) the evidence was given by a witness, and (3) it was given in a judicial proceeding, or before an officer authorised by law to take it. It is not in dispute that if these requirements are fulfilled the other requirements that the evidence was taken in accordance with law and that the memoranda purport to be signed by a Magistrate or an officer authorised by law to take the evidence are also fulfilled.

(3.) Generally while the police investigate art offence committed by unknown persons and arrest persons suspected of having committed it they get identification proceedings held so that the eye-witnesses are confronted with them. Only the eye-witnesses can say whether they committed the offence or not and in order to make their statements acceptable as true the suspects are mixed up with other persons and the eye-witnesses are asked whether they can point out any of the offenders among them. These proceedings are known as identification proceedings and the police get them conducted before a Magistrate so that whatever statements are made by the eye-witnesses and are recorded by the Magistrate can be placed before the Court when the suspects are placed on trial. Generally identification proceedings are held while the police are still investigating the offence: i.e. before they send a report under Section 173, Cr. P. C. to a Magistrate on the basis of which he can under Section 190 of the Code take cognizance of the offence. A statement made by a person to a police officer in the course of an investigation cannot be used for any purpose at any enquiry or trial in respect of the offence under investigation (except for contradicting him), vide Section 162; it is open to any person to make a statement cr confession before a Magistrate (of a certain class) in the course of an investigation, or at any time thereafter, but before the commencement of an enquiry or trial and the statement or confession will be recorded by the Magistrate under Section 164 and is not subject to the bar imposed by Section 162. Such a statement, being a previous statement, may be used only to contradict the person when he appears as a witness at the enquiry or trial of the offence or to corroborate him. A statement made by a person before a Magistrate of the required class holding an identification proceeding and recorded by him is a statement governed by Section 164: there is no dispute on this point. It is to be noted that Section 164 simply mentions "any statement or confession made to him in the course of an investigation" and not "any statement or confession made to him in the course of art investigation by any witness or accused person". It does not state whose statement or confession is to be recorded by him. Actually at this stage, whan the offence is still under investigation, there are no witnesses and no accused persons (except in the sense of persons against whom a charge of having committed the offence is levelled and is under investigation), it is only after the investigation has been completed that the police can decide who is to be the accused cf the offence before a Magistrate and who are to be the witnesses in the case. Till then there can be no decision about the status of a person as an accused person or as a witness and all persons examined by the police during the investigation are mere interrogatories or informants or statement-makers. The provisions in the Code relating to investigation do not refer to any person as a witness. Though "witness" is not defined in the Evidence Act, Sections 118, 119 and 120 of it make it clear that a witness is a person, who testifies before a Court. Under Section 59 all facts may be proved by oral evidence and "oral evidence" is defined in Section 3 to mean and include all statements made by witnesses before a Court. The definition of "proved" shows that the question of proof of a fact arises only before a Court, so long as there is no Court there is no question of a fact being proved and consequently no question of oral evidence and witnesses. Evidence can be given only in respect of the existence or non-existence of a fact in issue or a relevant fact, vide Section 5. Which is a fact in issue or a relevant fact is a matter that arises only before a Court because only before a Court there can arise the question whether a certain fact is proved or not. These provisions of the Evidence Act make it clear that no person can claim the status of a witness except in relation to a proceeding before a Court. It follows that while an offence is still under investigation there is nobody who can be called "witness" and there is no statement that can be called "evidence",