State of Punjab vs Madan Singh

Jawahar Lal Gupta, J.—The respondent was charged with the offence punishable u/s 420 of the Indian Penal Code. It was alleged that he had received a cash deposit of Rs. 11,000/- from Gian Singh. He had made an entry in the pass-book, but, had failed to deposit the cash with the Bank. As such he had misappropriated the amount.

The trial Court after examination of the evidence, has acquitted the respondent. It has found as a fact that the Investigating Agency had not recorded the statements of the prosecution witnesses u/s 161, Cr.P.C. These were not "filed along with the final report u/s 173, Cr.P.C., submitted by the Police in the Court." On this basis the Court has come to the conclusion that "a material prejudice stands caused ..... to the accused." Thus, the respondent has been acquitted.

The State of Punjab has filed this application for the grant of leave to appeal.

We have heard Mr. M. C. Berry, Deputy Advocate General, Punjab. It is contended by the learned counsel that the statements of all the witnesses had been recorded u/s 161, Cr.P.C. These had been produced along with the final report submitted to the Court u/s 173, Cr.P.C.

The original record was sent for. We have examined it. The contention, as raised by the counsel, is not borne out from the record. Still further, even in the grounds of appeal, as filed by the Public Prosecutor, we find that a categorical assertion that the statements of all the 17 witnesses, who were produced at the trial, had been actually recorded u/s 161, Cr.P.C., or that any of these had been supplied to the respondent and the Court has not been made. In fact, in ground No. 4 it has been averred that the statements of "P.W. 2 and Mukhtiar Singh were recorded on 2-9-95 and are on the Police file and there is no entry to this effect in Zimni No. 3 dated 2-9-95. Further the statements of M. S. Makkar, Manager, Punjab and Sind Bank, Khiala Kalan, Surta Singh Cashier, Ashwani Kumar Clerk were also recorded by the Investigating Officer and their statements u/s 161 of the Cr.P.C. are also on the police file ..... ...." There is no assertion that the statements of the remaining 11 witnesses were recorded or produced before the Court.

The law authorises the police to call and question a person ''supposed to be acquainted with the facts and circumstances of the case.'' It can record the statements. Such evidence, as recorded during investigation, has to form a part of the charge-sheet that is filed u/s 173, Cr.P.C. The obvious purpose is to ensure that the accused should know exactly what he has to meet. That is an essential pre-requisite for a fair trial. When the copies of statements are not filed in Court and the accused does not have any access thereto, the opportunity is not proper and adequate.

In view of the above, we find no ground to interfere with the view taken by the trial Court. The application for the grant of leave to appeal is, accordingly, dismissed.

Appeal dismissed.