Harun Rashid alias Haroun Al Rashid vs State

Amakesh Roy, J.—This Rule was issued upon an application for Revision made in this Court on behalf of the two accused persons who have been prosecuted for, an alleged offence u/s 366/34 of the Indian Penal Code. The charge-sheet was submitted by police on March 2, 1960 against three persons but one of them has remained absconding and an enquiry under Chapter XVIII. Code of Criminal Procedure was being proceeded with against the Petitioners. Copies of some documents including copy of the report of the Radiologist were given to the accused persons u/s 173(4) of the Code of Criminal Procedure and that fact was noted in the order-sheet on April 28, 1960. Examination of witnesses commenced on May 27, 1960. On May 30, 1960, Radiologist of Calcutta Police Hospital was examined as P.W. 4 and he proved that X'' ray photograph of the girl was taken and the X'' ray plates were proved as Exts. I and II. On the same date Dr. S.K. Roy, the Professor of Forensic and State Medicine of Calcutta Medical College was examined as P.W. 5 and he deposed to his opinion about the age of the girl and mentioned as reasons in support of his opinion the particulars with reference to what appeared from the X'' ray plate.

He said:

In view of the X'' ray findings, general consideration and other clinical data-all considered together-I am of opinion that Gouri Mukherjee alias Kama Debi was aged between 16 years and 17 years at date of her X'' ray examination, viz., 16-11-59. Cross-examination of both these witnesses P. Ws. 4 and 5 were declined by defence on May 30, 1960. But on May 30, 1960, the two Petitioners made an application stating that no copy of the two X'' ray photo plates had been supplied to the accused persons and prayed for direction on the prosecution to furnish the copies of those two documents. That application was directed to be put up on the next date of hearing that is June 7, 1960, and the application was heard on June 8, 1960. On that date an application was filed by the special Public Prosecutor, raising the contention that X'' ray films are material exhibits and they were not documents within the meaning of Section 3 of the Indian Evidences Act and, therefore, copies thereof need not be given u/s 173, Code of Criminal Procedure. It was also stated in that petition:

Unlike negatives of photographs, no copies can be made out of X'' ray films and no question of supplying of copies of such films can arise and also that the petition of accused was related one when the enquiry was coming to an end and almost all the prosecution witnesses had been examined in chief and their cross-examinations declined. No prayer for copies was made at the commencement of the enquiry as in required u/s 207A(c). "Prosecution, therefore, contended that the prayer of copy should be refused.

On the back of that application the learned Magistrate made the following order:

Order dated 8-6-60-Seen petition of the Police Prosecutor. X'' ray films are material exhibits. The defense had seen the X'' ray films when the doctor witnesses were examined. The witnesses were at this stage not cross-examined by the defence. No question of prejudice arises. In my opinion supply of copies of the material exhibits, viz., X'' ray plates is not mandatory. The prayer for supply of copies is rejected.

Against that order the Revision application under Sections. 439 and 561A, Code of Criminal Procedure, was moved in this Court and a Rule issued and further proceedings in the enquiry was stayed.

The learned Advocate Mr. S.S. Mukherjee appearing in support of the Rule has contended that X'' ray photographs or skyagrams are documents within the definition in Section 29 of the Indian Penal Code and copies of those documents can be made. In evidence the prosecution did rely on those documents which were very important evidence in the case. Although the copy of the report of the Radiologist had been given to the defence, without a copy of a skyagram on which that report and the testimony. of the Radiologist Dr. Mukherjee P.W. 4 and Dr. S.K. Roy were based, that report was useless to enable the defence to cross-examine those witnesses effectively and the defence would seriously be prejudiced in that respect if the copies were not given as required u/s 173(4) and Section 207A(3), Code of Criminal Procedure.

At the first hearing of the ease the State was represented by the learned Advocate Mr. Rabindra Narayan Chakravarty and contention was raised on behalf of the State as a matter of law, that copies of material exhibits. like skyagrams were not required to be given under those sections of the Criminal Procedure Code.

The respective contentions of the parties raised an important question of first impression and the point of law required serious consideration. At my invitation the learned Deputy Legal Remembrancer appeared in the case with Mr. Rabindra Narayan Chakravarty for the State. On April 26, 1961. the learned Deputy Legal Remembrancer intimated to court that lie would contest the point of law but in view of the evidence of the expert that copies can be made of X'' ray plates Mr. Banerjee very fairly stated that he would advise the prosecution to make copies of the X'' ray plates and give them to the learned Advocate for the accused persons. To enable the State to make copies, the X'' ray plates were given to the learned. Deputy Legal Remembrancer Mr. Banerjee who had the copies made and related the X'' ray plates. Copies of the skyagrams by photo print were given. by Mr. Banerjee to the learned Advocate Mr. S.S. Mukherjee who was appearing for the accused persons and also two such copies were filed in this Court by Mr. Banerjee for keeping them on the record of the case. Although the copies have been made available to the defence Mr. Banerjee has argued the matter at length contending that as a matter of law prosecution had no duty to furnish such copies and pressed the matter for a decision. As the question raised two pure questions of law not only of importance but of extensive general application, I heard both Mr. Mukherjee and Mr. Banerjee in support of their view points. Mr. Mukherjee first referred to the definition of document in Section 29 of the Indian Penal Code which is in these terms:

The word "document" denotes any matter expressed or described upon amy substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation (1): It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Explanation (2): Whatever is expressed By means of letters figures or mark as explained by mercantile or other usage shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be actually expressed.

Mr. Mukherjee contended that the skyagrams are certainly marks formed on chemically treated celluloid film by effect of light or image passed through lense and, therefore, by the substantive part of Section 29 and Explanation (1) a skyagram or photograph is a document. In support of his contention Mr. Mukherjee relied on the decisions in A.V. Joseph v. King Emperor (1924) ILR 3 Rang. II, Emperor Vs. Krishtappa Khandappa, . and The King v. Daye (1908) 2 K.B, 333.

Against this argument the learned Deputy Legal Remembrancer has referred to the definition of document in Section 3 of the Indian Evidence Act which is in these terms:

Document means any matter expressed or described upon any substance bs means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

He also pointed out that similar is the definition of word "document" in General Clauses Act Section 3(16) Mr. Bauerjee also contended that a skyagram or photo plates do not answer the definition of document in the Indian Evidence Act, although Mr. Banerjee is alive to the fact that there is not much difference between the two definitions given in the Indian Evidence Act and Indian Penal Code. It may at once be pointed out, however, that by Section 4(2) of the Criminal Procedure Code.

All words and expressions used herein and defined in the Indian Penal Code -and not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that code.

Therefore, the Code of Criminal Procedure has adopted the definition as in Section 29 of the Indian Penal Code and as we are concerned with the "document" appearing in the, section of the Code of Criminal Procedure the definition in the Indian Penal Code is the only definition that we can look to as if that definition is in Code of Criminal Procedure itself. In my view the mark made on the celluloid film by the scientific process of X'' ray photography would clearly come within the definition in Section 29 of the Indian Penal Code and Expl. (1) to that section. Therefore, I have no hesitation in holding that an X'' ray photo plate or a skyagram is a document''. Mr. Banerjee''s contention to the contrary must, therefore, be rejected.

Mr. Banerjee next contended that even if the skyagrani is a document, it is only a copy of the original subject, in the present case of the human body, of which X'' ray photograph is taken and it is not possible to have more than one X'' ray plate by skyagram at a time of that original subject. Therefore according to Mr. Banerjee it is not possible to supply copy of that original because copies made by photo print would be copy of a copy. For that reason Mr. Banerjee contends that copy of such a document is not contemplated in Section 173(4), Code of Criminal Procedure and for the matter of that Section 207(3), Code of Criminal Procedure. This argument of Mr. Banerjee cutsrather fine but cannot be accepted because Section 173(4), Code of Criminal Procedure speaks of "All other documents or relevant "extracts thereof on which the prosecution proposes to rely" and a document so relied on by prosecution may very well be a copy, If prosecution proposes to rely on such a copy, the words in Section 173(4) Code of Criminal Procedure, clearly includes copy of such a copy.

Next contention of Mr. Banerjee was that prosecution really relies on the opinion of the expert and although that opinion is based on the material provided by the skyagram and reading of that material has reflected in the report of the expert, which report is the relevant extract of the opinion. Therefore, it is contended, the requirement of Section 173(4), Code of Criminal Procedure, has been satisfied when the copy of the report was given to the accused. This contention is very ingenuous but does not stand the test of examination in the background of the nature of the evidence that is proposed to be relied on by prosecution. True nature of that evidence in my view is that prose caution relies on the opinion of the expert which opinion has been obtained from several factors of the special knowledge of the expert including his capability of reading and interpreting a skyagram. But like all opinion evidence the bland opinion if not of such evidentiary value unless that is supported by the reasons for that opinion. In giving those reasons the expert relies on the skyagram. The skyagram, therefore," is no more than corroboration if at all of the reasons of the expert. In my view the opinion of the expert does not consist of the report of the skyagram as Mr. Banerjee contends. Clearly, therefore, the report cannot be said to be relevant extract of the opinion nor the skyagram the other part of that opinion. The rendering of Mr. Banerjee of the relationship between the report of the skyagram does not appear to me to be sound.

But from what I have said above it appears to me that the skyagram does nol come within the phrase "Document..." "which the prosecution proposes to rely" that occurs in Section 173(4), Code of Criminal Procedure. It is no doubt true that the skyagram is a document which prosecution intends to use in evidence but in my view what Section 173(4), Code of Criminal Procedure means when it says that "prosecution proposes to rely" is prosecution proposes to rely as evidence of substantive nature and that phrase does not include documents which are used in evidence only to corroborate substantive evidence or opinion of experts. To hold otherwise would be not only creating a very unreal situation in many stages of enquiry or trial but also to cut down several important sections of the Code of Criminal Procedure to narrowness at which practical use of those are reduced almost to nil. One illustration I mention to depict that picture. A witness who has asserted in his examination-in-chief that he was present at a particular place on the date of occurrence when challenged in cross-examination to produce any writing in support of that assertion produces during cross-examination a document, say a cash-memo or a hotel-bill of an establishment of that place bearing that date and made out in his name. That document is certainly a document of great use to the prosecution but even at that it only corroborates the testimony of that witness that he was present on the date at that place. This statement of this witness recorded u/s 161(3), Code of Criminal Procedure, might not have mentioned that cash-memo or that hotel bill and prosecution very probably would not be aware of its existence until it is produced by the witness while being cross-examined in the witness box. Could not such a document be taken in evidence before copy thereof had not been given u/s 173(4) or Section 207(5)? I am definitely of the view that it could and there will be no necessity of even postponing the cross-examination of that witness until copy of that document has been given to the defence as a matter of law, unless of course the matter is such that the court to give the defence a fair opportunity of cross-examination directs that such steps should be taken to ensure fair, trial. In such situation a consencious prosecutor may, as a step of fair prosecution, offer to give a copy to the defence. That would not be a duty enjoined by law but a proper step for fair prosecution. To mention another instance, as it often happens, by over-done cross-examination defence counsel brings out from a prosecution witness under cross-examination a document which the prosecution was not aware of (may be due to faulty investigation) yet when brought in evidence it is very valuable document, in support of the prosecution case. Can it be said that in that situation the evidence will be shut out because copy of that document had not been given to the defence at the proper stage? Such instances could be multiplied and the power of the court to put any question to the witness and also the power under Sections 244(3), 257(1) and 540, Code of Criminal Procedure, would be reduced to the narrowness almost of non-existence if that power is circumscribed by the necessity of copies having been given of documents which are revealed by such question or examination by the court and which documents appear to be of great use to prosecution. I have said enough to show that in my view to give the wide meaning to the words in, Section 173(4), Code of Criminal Procedure, as sought to be done by Mr. Mukherjee leads to absurd results and defeats the avowed purpose of the amending Act XXVI of 1955 by which Section 173(4) was introduced with the ramifications in Sections 207A(3) and 251A(1), Code of Criminal Procedure. I, therefore, hold that the phrase "On which the prosecution proposes to "rely" occurring in Section 173(4) does not include documents which are not substantive evidence and are only of corroborative use.

Mr. Mukherjee has relied on the decision of the Supreme Court in the case of Gurbachan Singh Vs. State of Punjab, and contended that the purpose of giving copies being to acquaint the accused with what he has to meet in the enquiry or trial the Parliament has directed that all documents on which prosecution proposes to rely must be given under Sections 173(4) and 207A(3) Code of Criminal Procedure. On behalf of the State the learned Deputy Legal Remembrancer has also relied on that decision of the Supreme Court in support of his argument that only copies of those documents which prosecution relies on as substantive evidence of the occurrence itself at that stage of the enquiry need and can be given and not of all documents that may be produced as corroborative matters during the enquiry or trial. For deciding on the true meaning of the phrase "all documents on which "prosecution proposes to rely" occurring in Section 173(4), Code of Criminal Procedure, it is necessary to remember the state of the proceeding at which supply of copies has been enjoined. It is it the time of or soon after the investigation has been completed and a report u/s 173, Code of Criminal Procedure, is sent to the Magistrate. It has also to be noticed that the Parliament has" said proposes to rely and not will or does rely. The proposal to rely must bear direct reference to the stage at which necessity to supply copies has been enjoined, and the purpose at that stage of submission of charge-sheet is to enable the Magistrate to frame a charge u/s 207A(7),Code of Criminal Procedure, There is no further purpose at that stage, because by a report which is not for proceeding to frame a charge but to discharge he accused, obviously no copy of any document need be applied. At that stage for framing a charge the Magistrate need take evidence not of all witnesses named in the charge-sheet hut only of those "as may be produced by the prosecution "as to the actual commission of the offences alleged", as provided in Section 207A(4), Code of Criminal Procedure. Under the corresponding provision in Chap. XXI, that even is not necessary because Section 251A, Code of Criminal Procedure does not enjoin examination of any witness at all at that stage.

Moreover, it has been now well settled in this Court as well as several other High Courts in India that prosecution may examine persons as witnesses at the trial whose statement u/s 161, Code of Criminal Procedure, had not been recorded and/ or copies of such statement had not been given to the accused u/s 173(4), Code of Criminal Procedure. If such a person when deposing as a witness at the trial produces and proves a document which prosecution relies on, can it be said that the document cannot be taken in evidence unless copy thereof has been given to the accused? I am clearly of the view that whether in such circumstances, the court will as a matter of fair trial direct that copy be given to accused and postpone cross-examination of that witness to give defence opportunity to consider that document before proceeding to cross-examine that witness, or whether the person conducting prosecution will as a matter of fair prosecution give the accused copy prior to its being proved in evidence are questions different from the duty as a matter of law to give such copy before it is proved in evidence.

These reasons have impelled me to the view that to hold that as a duty enjoined by Sections. 173(4) and 207A(3), Code of Criminal Procedure, copy of every document that prosecution may use at the inquiry or trial must have to be given at the stage of Sections 173(4) or 207A(3). Code of Criminal Procedure, will Incomplete negation of all sense of reality which is unpredictability of necessities that may arise during the inquiry or trial. To guard against such unreal and absurd result, the Parliament has used in Section 173(4) the words "prosecution proposes to rely"- that is at stage what they are able to foresee as matters to be relied on. Prosecution is not limited to or pinned down at their capacity of foresight even when an unforeseen situation arises either by better advice, of their lawyers or by effective cross examination by defence lawyer or by direction of court ex debite justice. Like all human affairs witness action at an inquiry or trial need not and in fact does not follow a pattern imagine-before-hand. It varies with skill in advocacy, which, in th words of Judicial Committee in the case of Sourendra Nath Mitra v. Srn. Tarubala Dassi (1930) 34 C.W.N. 453 (459), is largely the result of discrimination. The variation from the imagined pattern may be, again in words of the Judicial Committee in that case, "hour "by hour, almost minute by minute". To set a cast-iron pattern for such a variable battle of wits and legal. Acumen would be in my view to drown all practical ease. Yet that is the result that Mr. Mukherjee''s interpretation of Section 173(4), Code of Criminal Procedure, would clearly lead to. 1 have also to mention that Mr. Mukherjee in his learning and experience was fully aware of that result but he on behalf of his. Client emphasised the language of Section 173(4), Code of Criminal Procedure, introduced by the amending Act XXVI of 1955. According to him, the innovation of the procedure of giving copies was a guarantee and a justification for withdrawing the benefits under the old law and, therefore, the new section must ha strictly interpreted in favour of the accused. I have no hesitation in saying that the approach of Mr. Mukherjee to this subject is not without force or cogency but at the same time a provision in a statute cannot be interpreted so as to lead to impractical, if not absurd, results and only that consideration has lead me to take the view I have dome above.

There is another reason for that view of mine. The purpose of this provision introduced by the amending Act XXVI of 1955 is only to intimate to the accused what are the allegations against him a necessity consequent upon omission of examination of all witnesses before framing a charge either in Chap. XVIII or in Chapter XXI in cases governed by Section 207A and Section 251A. The new provision, therefore, has insisted that copies are given to the defence u/s 173(4) before the commencement of the enquiry or trial by Section 173(4) and has also enjoined that the Magistrate shall satisfy himself that such copies have been given "at the commencement of the enquiry" u/s 207(3), and "at the commencement of the trial" u/s 251A(1). All these provisions spell out that copies have to be given before the charge is framed. The meaning that clearly appears to my mind is that copies have to be given of all such documents on which the prosecution proposes to rely to enable the Magistrate to frame a charge and not of all documents which may be brought forth in evidence as corroborating or supporting evidence during the enquiry or during the trial after framing of the charge.

That being the meaning of Section 173(4), Code of Criminal Procedure, in the present case the skyagram, though a document of which there is very important use at the trial, is not one on which prosecution proposes to rely to enable the Magistrate to frame a. charge at the enquiry u/s 207A. What prosecution is relying in that respect is the opinion of the expert witnessed and the skyagram is no more than of corroborative use of the reasons mentioned by the expert witnesses P. Ws. 4 and 5 in support of the opinion that they have tendered. I hold, therefore, that as a matter of law there was no duty on the prosecution to furnish copies of the skyagram or X'' ray photo plate to the defence.

I have already mentioned the learned Deputy Legal Remembrancer in the present case as a step of fair prosecution provided photo print copies to the learned defence counsel. The expert witnesses were declined to be cross-examined but no prayer was made at that stage to postpone the cross-examination on the ground that it was not possible without the copy of the skyagram. The enquiry had proceeded almost to the end but has been held up for over a year by reason of the present Rule and order of stay made by this Court; I am satisfied that ho prejudice will be caused to the defence by the reasons that they had not the copies of the skyagram to which I have held they were not entitled as a matter of legal right. I, therefore, direct that the enquiry shall proceed from the stage at which it was stayed expeditiously.

The Rule is discharged.