Heard Sri Mukul Rakesh, learned counsel for the revisionist and Sri Bireshwar Nath, learned counsel for the Central Bureau of Investigation (C.B.I.).
Learned counsel for the revisionist has submitted that out of total 28 witnesses mentioned in the list of witnesses so given by the C.B.I., the copy of statements of the witnesses No.20 to 28 have not been provided to the revisionist, therefore, those witnesses cannot be examined, strictly in accordance with law. He has referred Section 173 (5) (b) of Cr.P.C., which provides that when such report in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report, the statements recorded under Section 161 Cr.P.C. of all the persons to whom the prosecution proposes to examine as its witnesses. He has further submitted that in the light of sub-clause 8 of Section 173 Cr.P.C., the statements of those witnesses can be recorded at this stage.
Per contra, learned counsel for the C.B.I., Sri Bireshwar Nath, has submitted that he has already apprised the learned court below that the C.B.I. has not recorded the statements of the witnesses No.20 to 28 and has filed the application before the trial court concerned apprising that those witnesses i.e witnesses No.20 to 28 would require to specific thing which is indicated in this letter itself. He has further submitted that since the C.B.I. has already disclosed that those witnesses i.e. witnesses No.20 to 28 would discharge specific assignment, therefore, no prejudice would cause to the revisionist. Therefore, he has submitted that on account of non-providing the copies of the statements of the witnesses No.20 to 28 would not vitiate the trial proceedings in any manner.
Sri Bireshwar Nath, learned counsel for the C.B.I. has also submitted that at this stage the revisionist may not request that the statements of all the witnesses be provided to him as this is the premature stage inasmuch as the instant revision has been filed at the stage of summoning order and till date the charges have not been framed and the learned counsel for the revisionist may raise this issue before the trial court at the stage of framing of charges and thereafter the trail may be proceeded in accordance with law but in any case the revision against the summoning order is not maintainable.
In reply to the aforesaid submission of learned counsel for the C.B.I., Sri Mukul Rakesh, learned counsel for the revisionist has placed reliance on the reported judgment of this Court in re: Mohammad Sayeed vs. State reported in 1977 Cri.L.J. 902, wherein this Court has held in para-4 as under:-
"Under law the duty is cast on the prosecution to supply the documents which include statements recorded under Section 161 Criminal P.C. by the investigating agency with the object of affording an opportunity to the applicant to know as to what is the evidence against him which the prosecution at the trial could adduce. There is no doubt that if the nature of the evidence and the persons who are likely to come in witness box is known to the applicant he would be in a better position to prepare his defence after taking proper legal advice. A cross examiner would also be in a position of advantage. The court itself also, who holds the trial will find great facility if it knows from before-hand the nature of the case, nature of the evidence, and other things connected with particular prosecution. The provisions of the Code of Criminal Procedure which require the supply of documents and statements, prepared at the investigation; stage, cannot be treated as mere superfluity; or an empty formality. Those provisions have been enacted by the Legislature with a definite object and that is why a duty is cast upon the prosecution. I am not prepared to accept the argument that failure by the prosecution to comply with the mandatory provisions of the Code in this regard would not vitiate the trial unless the applicant establishes actual prejudice. To my mind, an omission to follow any mandatory provision! of law would result in prejudice which is inherent in the situation. Thus the prejudice would he presumed. The accused loses a valuable right to contradict the prosecution witnesses on the basis of any statement given by them to the investigating agency. That by itself is a factor causing prejudice, In the case of Indal Singh v. State (1972 All Cri.L J 188) a similar view has been taken. That was also a case under Railway Property (Unlawful Possession) Act and in somewhat similar circumstances this court acquitted the accused in exercise of its revisional jurisdiction. The learned Government Advocate has not been able to satisfy me that the decision requires re consideration. He has not placed before me any valid reason why should I not follow the same course as this Court followed in Indal Singh's case (Supra)".
Placing reliance upon the aforesaid judgment, learned counsel for the revisionist has submitted that if the statements of the aforesaid witnesses are recorded by the C.B.I. at this stage and copies thereof are provided to the revisionist, the revisionist shall participate in the trial proceedings and if the statements of those witnesses are not recorded, the C.B.I. will have to give specific statement that those witnesses shall not be produced. He has vehemently submitted that the revisionist is not avoiding the trial proceedings but he is only submitting that there is prescribed procedure of law as indicated in Section 173 (5) (b) of Cr.P.C., it should be followed in its letter and spirit so that fair and impartial trail could be conducted.
The learned counsel for the revisionist, Sri Mukul Rakesh, has further submitted that this stand of C.B.I. is not correct in the light of the provisions of Section 207 Cr.P.C., which categorically mandates that in any case where the proceeding has been instituted on the police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following, wherein sub-clause (iii) provides that the statements recorded under-section 3 of Section 161 Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the Police Officer under Section (6) of Section 173 Cr.P.C.
Learned counsel for the revisionist has also submitted that since the C.B.I. does not record the statement of I.O., who are the witnesses No.26, 27 and 28, so those may be exempted, but the statements of the remaining witnesses i.e. witnesses No.20 to 25 should have been recorded and copies thereof should be provided to him so that the charges could be framed properly and trail could be proceeded strictly in accordance with law.
Learned counsel for the opposite party i.e. C.B.I., Sri Bireshwar Nath, prays for and is granted a week's time to seek instructions in the matter in the light of what has been discussed here-in-above.
List this case on 30.08.2018.
Since this matter is of the year 2002, therefore, it shall not be adjourned on the next date and shall be decided, if possible, on the next date fixed.
Order Date :- 20.8.2018 Suresh/ [Rajesh Singh Chauhan,J.]