Full Judgment
Bennet, J.
1. This is an application on behalf of Tahal Saithwar in criminal revision dealing with a point of procedure. Tahal is being tried tinder Sections 148 and 325, I. P. C, in the Court of a Magistrate of Gorakhpur District. After the witnesses for the prosecution had been examined and before cross-examination began, the counsel for the defence made an application under Section 162, Criminal P.C., for copies of the statements of those prosecution witnesses recorded under Section 161, Criminal P. C, by the investigating police officer. The Magistrate and the Additional Sessions Judge have both held that the accused is not entitled to receive these copies, because they consider that that right would only arise in case the defence is able to show by cross-examination that there is some suggestion of contradiction by the witness of what he stated in the police inquiry. I find that this idea is supported by Madari Sikdar v. Emperor : AIR1927 Cal514 where it is stated:
But the cross-examination must lay the foundation for the suggestion that the evidence given by the witness in Court is contradicted by his statement recorded under Section 161, Criminal P.C. and it is only then that the accused is entitled to ask the Judge to refer to the writing and grant him copies. Section 162 does not impose the duty upon the Judge of granting copies of the statement recorded under Section 161, before the cross-examination has been opened.
2. I cannot find anything in Section 162, Criminal P.C., to support this view, and the first proviso which deals with the subject appears to me to be clearly contrary to the view laid down by the Calcutta High Court. This proviso states that the request should be made at the stage when the witness for the prosecution has been called. I understand this to mean before the cross-examination of this witness. The purpose for which the statement shall be used is further laid down in the proviso with the condition that the statement must be duly proved. But there is nothing in this portion of the proviso to indicate that there should be any cross-examination previous to granting the copy. Further I am unable to understand what kind of procedure is suggested by the ruling of the Calcutta High Court. It would, in my opinion, be manifestly impossible for a defence counsel to establish some kind of contradiction in regard to a statement of the nature of which he was not aware. I consider that to impose a condition Such as is suggested by the Calcutta High Court on a defence counsel would be to hinder him in performing a duty to his client for which provision has been made in Section 162, Criminal P.C. Accordingly I allow this application in revision and I direct that the Magistrate should furnish copies of the statements of witnesses called for the prosecution to the defence unless he finds any parts of those statements which should be excluded under proviso 2, Section 162, in which case he may exclude that part. When these copies have been furnished then the stay order will come to an end and the trial will proceed.