Gurbachan Singh vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 24 April, 1957

Coram: Govinda Menon

Gurbachan Singh versus State of Punjab was decided on 24 April 1957 by the Supreme Court of India. The judgment was delivered by Justice Govinda Menon. The case involved a petition for special leave to appeal, which the Court granted on the limited question of whether statements obtained from witnesses under section 161 of the Criminal Procedure Code, during the investigation of a case connected with the Arms Act, should have been disclosed to the accused for the purpose of his defence, and whether the trial’s result was materially affected by that disclosure. The special leave was granted on 19 November 1956 in response to an application filed against the judgment and order dated 26 September 1956 of the Punjab High Court in Criminal Appeal No. 407 of 1956. Consequently, the present appeal was scheduled for final disposal.

The factual background began on 12 December 1955 when the deceased Mukhtiar Singh borrowed a mare from Wazir Singh, identified as plaintiff 5, in order to travel to Lakhewali Mandi. That night his body was discovered on the boundary of a field in Nand Garh, indicating that he had been murdered, and the mare was missing. The father of the deceased lodged a report at the Muktsar Police Station, and the complaint was recorded at six o’clock in the morning on the following day. Pritam Singh, identified as plaintiff 26 and serving as the Station House Officer at Muktsar, assumed responsibility for the investigation. He proceeded to the scene and found near the body a bottle containing a small quantity of liquor and a spent cartridge. Subsequent evidence presented by Kalia (plaintiff 10) and Bhag Singh (plaintiff 11) established that on the evening of Mukhtiar Singh’s disappearance they had observed the appellant drinking liquor in a field near Nand Garh and had been invited by him to join the drink. Further testimony of plaintiff 14 placed the appellant at about two p.m. on 12 September 1955 riding the mare that had been lent to the deceased. On 14 September, at approximately five p.m., the appellant, still riding a saddle‑less mare, arrived at the shop of Labh Singh (plaintiff 20) in the village of Ghanga Kalan and requested the shopkeeper to prepare some food for him. At that time a village Panchayat was in session at Ghanga Kalan, with the Sarpanch and other members assembled. While proceeding to the house of Gian Chand, the Sarpanch (plaintiff 19), Ujagar Singh (plaintiff 23 saw the appellant seated outside Labh Singh’s shop holding the reins of the mare. This sight aroused suspicion concerning the presence of an unfamiliar person in the village under those circumstances. The observation was reported to the other Panchayat members, prompting Gian Chand Sarpanch (plaintiff 

After the Panchayat members – Resham Singh (P. W. 24) and Ujagar Singh (P. W. 23) – arrived at the shop of Labh Singh, they questioned the appellant on the suspicion that the mare in his possession had been stolen. In response, the appellant attempted to withdraw an object from the fold of his trousers, but the Panchayat members prevented him from causing any harm and promptly seized him. A country‑made pistol, identified as P. 16, together with a twelve‑bore shotgun cartridge and four live cartridges, was recovered from the appellant. Following the seizure, the appellant confessed that he had stolen the mare after shooting a Mazhabi of Nand Garh. The capture of the accused was recorded in the Panchayat’s official register, after which the witness escorted the appellant to the Jalalabad Police Station. There, the report of Gian Chand (P. W. 19) was entered, and a case was registered against the appellant under Section 19(f) of the Arms Act at approximately 8:30 p.m. on 14 September 1956. On the following day, 15 September, information regarding the arrest was communicated to the Sub‑Inspector of Muktsar, who learned that the appellant had already been placed in the judicial lock‑up. During the murder investigation conducted by the Sub‑Inspector of Muktsar, the cartridge recovered near the location of the deceased’s body was sent, together with the seized pistol, for forensic examination. Dr. D. N. Goyal (P. W. 3) opined that the recovered cartridge had been fired from the pistol seized from the appellant.

Separate investigations were pursued by Diwan Chand (P. W. 25) and Pritam Singh (P. W. 26) concerning the offenses registered at their respective police stations. Diwan Chand (P. W. 25) examined the violation of Section 19(f) of the Arms Act, while Pritam Singh (P. W. 26) investigated the murder and robbery charges. In the course of his inquiry, Diwan Chand (P. W. 25) examined several witnesses, including Labh Singh (P. W. 20), Ujagar Singh (P. W. 23), Resham Singh (P. W. 24) and an additional individual named Kashmir Singh, who is not examined in the present case. By contrast, Pritam Singh (P. W. 26) did not examine these witnesses while pursuing the murder investigation. As a result of the inquiries, charge‑sheets were filed against the accused before the First‑Class Magistrate of Muktsar by the respective police officers. The proceeding under Section 19(f) of the Arms Act was instituted on 30 January 1956, whereas the committal proceedings for the offense under Section 302 of the Indian Penal Code began with the examination of P. W. 1, Dr. M. L. Sethi, on 3 December 1955. The trial for the Arms Act violation concluded with the conviction of the appellant on 16 March 1956, resulting in a sentence of nine months’ rigorous imprisonment. The committal proceedings for the murder charge concluded on 3 April 1956, although the prosecution’s first witness had been examined as early as 3 December 1955.

In this case, the Court noted that an appeal against the conviction under Section 19 (f) of the Arms Act was pending before the Additional Sessions Judge of Ferozepore when the murder trial began. The learned Sessions Judge subsequently found the appellant guilty of murder and imposed the highest penalty prescribed by law on 1 August 1956. The appellant then appealed to the High Court of Punjab, raising a reference under Section 374 of the Code of Criminal Procedure. The High Court confirmed the death sentence but altered the punishment imposed for the lesser offences, reducing them to a lesser term of imprisonment. Throughout the proceedings, the appellant maintained his innocence and insisted that the prosecution’s version of events was false. He asserted that he had been taken into custody at his maternal uncle’s house in connection with a different murder case and later transferred to the judicial lock‑up at Ferozepore after a detention at Jalalabad. The prosecution’s case claimed that the appellant had been arrested at the police station of Jalalabad and presented there as part of the Arms Act investigation. The appellant contested this narrative, alleging that the police had fabricated the circumstances of his arrest and subsequent production before the authorities. He further maintained that no opportunity had been given to the defence to examine the statements of the prosecution witnesses during the Sessions trial.

The Court observed that the special leave granted was limited to the question presented at the beginning of the judgment, and therefore the credibility of the prosecution witnesses could not be examined at this stage. It further noted that under Article 136 of the Constitution, this Court ordinarily does not entertain appeals that are based on factual matters. When leave was granted, a direction required that the statements of witnesses examined under Section 161 by the Sub‑Inspector of Police of Jalalabad be produced and made available for the hearing. The parties complied with the direction by placing copies of those statements before the Court for consideration in the record. The question then was whether the failure to provide the statements to the defence during the Sessions trial amounted to a breach of law or procedure. If a breach was found, the Court had to consider whether any prejudice caused could not be remedied under Section 537 of the Code of Criminal Procedure. Counsel for the appellant described witnesses PW‑19, PW‑20, PW‑23 and PW‑24 as “stock witnesses” clearly employed by the prosecution. He said they were called to testify about facts they had not personally observed, but merely to repeat whatever the police wanted recorded. The counsel argued that the statements recorded by the Sub‑Inspector of Police of Jalalabad concerning the alleged confession to the Panchayat and circumstances of the appellant’s apprehension had not been made available to the defence. He further maintained that, had the defence been allowed to cross‑examine, the inconsistencies would have been exposed, thereby casting doubt on the witnesses’ trustworthiness. The Court observed that no application on behalf of the appellant had been filed during the Sessions trial requesting the production of copies of the statements of the witnesses recorded in the Arms Act case.

Although the records of the Arms Act case must have been before the court at the time of the trial, the Sessions Judge disposed of the appeal against the conviction in that case at the same time as he convicted the appellant for murder, and both disposals were entered on 1‑8‑1956 by the same Sessions Judge. The judgment of the 1st Class Magistrate that is placed on record shows that PW‑19 and PW‑24, identified as Gian Chand and Resham Singh, were examined before him, but there is no evidence that PW‑20 (Labh Singh) and PW‑23 (Ujagar Singh) were examined in that proceeding. Before the Committing Magistrate, in addition to PW‑19 and PW‑24, Labh Singh also testified as a witness, while Ujjagar Singh was offered for cross‑examination. The same Magistrate, Sri I. P. Anand, who had acted as 1st Class Magistrate in Muktsar, convicted the appellant of the offence under the Arms Act on 16‑3‑1956 and passed the order of committal on 3‑4‑1956; consequently, it is clear that the complete investigation records prepared by Sub‑Inspector Jalalabad were available to the Committing Court at the time of its enquiry. Counsel for the appellant argued that the defence had not been aware, at the commencement of the Sessions trial, of the content of the testimonies of PW‑19, PW‑20, PW‑23 and PW‑24, and therefore the principle that an accused must be informed in advance of the case he has to meet was violated. The Code of Criminal Procedure contains no specific provision requiring that copies of statements taken under Section 161 in a related case be furnished to the defence, although nothing in the Code prohibits such disclosure, and in the present case it would have been advisable to provide them, particularly because the statements of these witnesses were not taken by the Sub‑Inspector of Muktsar but only before Sub‑Inspector Jalalabad, whose copies could have been supplied to the defence. The Judicial Committee, in Pulukuri Kotayya v. Emperor I L R (1948) Mad 1 : (A I R 1947 P C 67) (A), held that when a trial is conducted substantially in accordance with the procedure prescribed by the Code but some irregularity occurs, the defect may be remedied under Section 537 of the Code, even if the irregularity breaches a comprehensive provision of the Code. Accordingly, where it was established that the police statements were made available only at a late stage of the trial, no prejudice was found to have been caused to the accused, despite the defence not receiving them earlier.

In the judgment the Court referred to the authority reported in Nag 151 (A I R 1945 Nag 1) (B) and the earlier decision in Emperor v. Bansidhar, where the respective courts had refused to provide the accused with copies of witness statements that had been taken by the police. Those courts had characterised such a failure to furnish the statements as a serious breach of the proviso to Section 162. However, in the present matter before the Judicial Committee it was found that the delayed production of the police‑recorded notes of examination of the witnesses had not caused any prejudice to the defence. The Court also cited the decision in Willie (William) Slaney v. The State of Madhya Pradesh, which examined in detail the relevance of Section 537. That case concluded that when assessing whether prejudice has been inflicted, the courts must adopt a broad perspective, focusing on the substance of the trial rather than on procedural technicalities. The principal concern, according to that authority, is to ascertain whether the accused received a fair trial: whether he understood the nature of the charges, whether the essential facts alleged against him were presented to him in a clear and comprehensible manner, and whether he was afforded a full and reasonable opportunity to defend himself. The Court noted that those discussions appear at pages 1153, 1183 and 1189 of the Supreme Court Reports and at pages 122, 134‑135 and 137 of the All India Reporter, and therefore need not be repeated. The Court expressed no doubt that, in the facts of the present case, the accused was entitled to a fair trial. After reviewing the statements that had been given to the police officer in the Arms Act proceeding, the Court could not identify any material inconsistencies between those statements and the testimony that was offered during the present trial.

The counsel for the accused, Mr Sethi, compared the various witness statements and pointed out that some of the later statements were verbatim repetitions of earlier testimony. He argued that, had the defence been aware of this, it could have cross‑examined the four named witnesses and exposed the fact that they were members of the police. The Court observed that the Code of Criminal Procedure does not contain a special rule or directive that governs how police officers should record witness statements. It is generally understood that when a subsequent witness provides a narrative that is practically identical to that of a prior witness, the police officer’s recorded wording will naturally be similar or even identical. Consequently, the fact that the counsel conducting cross‑examination in the Sessions trial did not possess copies of the statements from the related Arms Act case could not have altered the outcome. The record shows that the committal proceedings, which commenced on 3‑December‑1955, concluded only in April 1956, whereas the Arms Act case began on 31‑January‑1956 and its judgment was rendered on 16‑March‑1956, with both matters being before the same Magistrate. The Court therefore concluded that the witness statements recorded by the Sub‑Inspector of Jalalabad were already in the court’s possession during the Sessions trial, and that, had the defence requested them, they would have been provided. As a result, the Court found no prejudice having been caused to the accused.

It was observed that the statements taken by the Sub‑Inspector of Jalalabad were already in the possession of the court while the Sessions trial was proceeding, and that, had a formal request been made, copies of those statements would inevitably have been supplied to the accused. After the hearing of the present appeal concluded, the complete record of the proceedings was called for from the Sessions Judge, and the court verified that the documents in the Arms Act case were indeed before the Sessions Court at the time the murder trial was underway. Consequently, the court held that the accused’s counsel could have obtained copies of those statements if desired, and therefore no prejudice could be said to have been caused to the accused.

The appellant’s counsel argued that, even in the absence of a specific request, the court should have furnished the copies before the trial began, relying on various provisions of the Code of Criminal Procedure as amended. The court noted that sub‑clause (3) of Section 161 authorises a police officer conducting an investigation under Chapter XIV to reduce to writing any statement made to him, and to keep a separate record of each person’s statement. The amendment of 1945 that introduced this sub‑clause remained unchanged in 1955, whereas Section 162 had been substantially altered. Earlier, the unamended provision contained two provisos; the current version retains only one proviso to sub‑section (1). The essential effect of the change is that, now, with the court’s permission, the prosecution may employ a recorded statement to contradict a witness in the manner prescribed by Section 145 of the Evidence Act. Previously, the prosecution was barred from using such statements for contradiction and could only rely on portions of the statement not used by the defence to challenge a witness during re‑examination. Moreover, before the amendment, the accused had to petition the court to refer to the statements made to the police officer and to obtain a copy for the purpose of contradiction. The present amendment eliminates that requirement because a new provision now mandates that copies be supplied earlier. Section 173, which deals with the police report, has been supplemented by a new sub‑section (4) and an added sub‑section (5). Sub‑section (4) stipulates that after forwarding a report under this section, the officer shall, before the commencement of the inquiry or trial, provide the accused, free of cost, with a copy of the forwarded report, the initial information report recorded under Section 154, and any other relevant documents or extracts on which the prosecution intends to rely, including statements and confessions under Section 164 and the statements recorded under Section 161(3) of all persons proposed as prosecution witnesses.

In the amended code, the charge of the police station is required, before the inquiry or trial begins, to provide the accused, at no cost, with several specific materials. The accused must receive a copy of the report that the police officer forwards under Sub‑section (1), a copy of the first information report recorded under Section 154, and any other documents or relevant extracts on which the prosecution intends to rely. This duty also includes furnishing any statements and confessions recorded under Section 164, as well as the statements recorded under Sub‑section (3) of Section 161 of every person whom the prosecution proposes to call as a witness. The Court noted that this provision makes it clear that once the investigating officer completes his investigation and sends his report to the Magistrate, copies of all referenced statements and documents must be supplied to the accused. The purpose of the provision, according to the Court, is to place the accused on notice of the material he will have to confront during the inquiry or trial. By contrast, the earlier version of Sub‑section (4) required only that a copy of the report forwarded to the Magistrate be given to the accused upon his application, and it did not mandate the provision of any statements, documents, or other evidentiary material.

The Court then turned to the newly inserted Section 207‑A, which governs the procedure for proceedings that originate on a police report in cases triable by a Court of Session. Sub‑clauses (3) and (4) of this section were examined. Sub‑clause (3) directs that, at the start of the inquiry, the Magistrate must verify that the accused has been furnished with the documents referred to in Section 173. If the Magistrate discovers that any of those documents have not been supplied, he must cause them to be furnished immediately. Sub‑clause (4) provides that, after this verification, the Magistrate shall proceed to take the evidence of those persons, if any, produced by the prosecution as witnesses to the actual commission of the alleged offence. Moreover, the Magistrate may, if he considers it necessary in the interests of justice, also take the evidence of any additional prosecution witnesses. The Court observed that Sub‑clause (4) represents a significant shift in the evidentiary process of the Committing Court because it limits the examination to witnesses who directly participated in the offence, while allowing discretionary examination of other prosecution witnesses only when justice requires it. Consequently, when read together, Sub‑section (4) of Section 173 and Sub‑section (3) of Section 207‑A ensure that the defence possesses all relevant statements and documents before the inquiry commences. However, the Court noted that neither Section 173(4) nor Section 207‑A(3) expressly requires the supply of statements that are part of connected cases.

The judgment noted that the law does not require the accused to be given statements from related cases. In support of this observation, reference was made to Section 2‑51 (A) introduced in Chapter XXI, which deals with the trial of warrant cases by magistrates. It was pointed out that Sub‑section (1) of Section 251 (A) is analogous to Section 207A (3), and even in that provision there is no mention of supplying statements from connected cases. The discussion then turned to Chapter XXIII, which governs trials before High Courts and Courts of Sessions beginning with Section 286. That chapter sets out the procedure for concluding trials for both prosecution and defence, but it contains no rule or direction that a Sessions trial must provide the defence with copies of statements taken under Section 161. The Court explained that, in its view, such statements should have been disclosed earlier, under Section 207‑A, at the stage of inquiry before the committing magistrate. Consequently, the Court concluded that there was no breach of any mandatory rule governing the conduct of the Sessions trial. The argument advanced by the petitioner—that the failure to comply with Section 207‑A at the committing stage would invalidate the subsequent Sessions trial—was considered and found to be untenable.

The Court then examined the effect of the Code of Criminal Procedure (Amendment) Act (26 of 1955). Section 116 of that Act contains savings provisions, and Sub‑section (3) (Sub‑clause (c)) states that Section 207‑A or Section 251‑A of the principal Act, as amended, shall not apply to or affect any inquiry or trial before a magistrate that began recording evidence before the commencement date of the amendment and was still pending on that date; such proceedings must continue as if the amendment had never been enacted. It was observed that the first prosecution witness in the committal stage was examined on 3 December 1955, which was before the amendment came into force on 1 January 1956. At the time the amendment became effective, the inquiry was still pending in the committal court. Because Section 207‑A was not yet on the statute book, it could not be applied to the case, making any invocation of that provision impossible. Although counsel for the petitioner argued that Sub‑clause (a) of Section 116 does not refer to Section 174, Sub‑section (4), and therefore a violation occurred, the Court rejected this contention, noting that the savings provision was not intended to have retrospective effect and that the deadline for sending the police report to the magistrate had already passed. Accordingly, the Court was of the opinion that none of the amended Code’s provisions concerning the supply of copies of statements recorded under Section 161 (3) were applicable to the present case. Even assuming hypothetical applicability, the Court affirmed that no prejudice resulted to the accused.

After reviewing the material before it, the Court concluded that the accused had suffered no prejudice, a conclusion that had already been indicated in the earlier discussion. Consequently, the Court held that it was unnecessary to render any further definitive statement on the matter. The Court then turned to a detailed examination of the case file and the evidence presented by the prosecution in the proceeding under the Arms Act. After this careful scrutiny, the Court expressed its satisfaction that the accused had not been prejudiced by the fact that he had not received the statements of witnesses that the police had recorded during the investigation of the Arms Act case while the Sessions Court trial was in progress. Because the Court found that the lack of supply of those witness statements did not disadvantage the accused in any material way, the Court determined that there was no ground for relief. Accordingly, the appeal was dismissed. The dismissal reflected the Court’s view that the procedural omission cited by the appellant did not affect the fairness of the trial or the rights of the accused, and therefore no further order was required.