Saritha S Nair vs Union Of India
2022 Latest Caselaw 9178 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                   CRL.MC NO. 4130 OF 2022
        AGAINST CRL.M.P.NO.1572/2022 IN SC NO.610/2020
                     (ECIR/KCZO/31/2020)
PETITIONER/PETITIONER/3RD PARTY:

          SARITHA S NAIR
          AGED 43 YEARS, OCC:-BUSINESS, D/O INDIRA NAIR,
          INDEEVARAM,VILAVOORKAL,MALAYIKEEZHU,
          THIUVANANTHAPURAM DISTRICT, PIN - 695571

          BY ADVS.
          BIJU ANTONY ALOOR,K.P.PRASANTH
          VISHNU DILEEP, T.S.KRISHNENDU
          ARCHANA SURESH, MOHAMED AMEER M.
          SHEHALLA M. BASHEER



RESPONDENT/RESPONDENT/COMPLAINANT:

    1     UNION OF INDIA
          REPRESENTED ASSISTANT SOLICITOR GENERAL OF INDIA,
          HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031

    2     ASSISTANT DIRECTOR,DIRECTORATE OF ENFORCEMENT,
          COCHIN ZONAL OFFICE,
          ERNAKULAM- DISTRICT, PIN - 682011

          BY ADV.JAISHANKAR V. NAIR, SC, ENFORCEMENT
          DIRECTORATE,
          SRI.K.K.DHEERENDRAKRISHNAN, AMICUS CURIAE

     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 25.07.2022, THE COURT ON 10.08.2022 PASSED THE FOLLOWING:
 Crl.M.C.No.4130/2022

                                -:2:-

                                                                    "C.R."

                             O R D E R

Dated this the 10th day of August, 2022

Is a statement recorded under Section 164 of the Criminal

Procedure Code a public document falling under Section 74(1)

(iii) of the Indian Evidence Act?

Is a stranger to the proceedings entitled to a copy of the

same under Section 76 of the Indian Evidence Act?

These are the important questions that fall for consideration in

this Criminal Miscellaneous Case.

2. The Enforcement Directorate registered an

Enforcement Crime Investigation Report as ECIR/KCZO/31/2020

against three accused on 13/07/2020 under Sections 16, 17 and

18 of the Unlawful Activities (Prevention) Act 1967. After

investigation, a prosecution complaint under Sections 44 and 45

of the Prevention of Money Laundering Act, 2002 (for short

'PMLA') was filed at the Special Court (PMLA), Ernakulam on

6/10/2020 reserving the liberty to file a supplementary complaint,

if any. The Special Court took cognizance of the offence and

numbered the case as SC No.610/2020. After further Crl.M.C.No.4130/2022

investigation, a supplementary prosecution complaint was filed

against the accused No.4 reserving right to file additional

supplementary complaint as provided under Section 44(1)(d)(ii)

of PMLA. Further investigation is in progress. During its course,

the accused No.2 gave a statement under Section 164 of Cr.P.C

on 06/06/2022 and 07/06/2022 before the Chief Judicial

Magistrate, Ernakulam.

3. The petitioner herein who is alleged to be a witness in

the above case filed an application at the Special Court seeking a

copy of the statement under Section 164 of Cr.P.C given by the

accused No.2. According to the petitioner, the accused No.2, in

her statement had made certain imputations against her for

which she intends to pursue a legal remedy.

4. The Special Court vide Annexure 1 order turned down

the prayer holding that the petitioner being a third party to the

proceedings is not entitled to the copy at this stage. The said

order is under challenge in this Crl. M.C.

5. Considering the importance of the question of law

involved, Adv. Dheerendrakrishnan was appointed as amicus

curiae to assist the court.

Crl.M.C.No.4130/2022

6. I have heard Sri. B.A. Aloor, the learned counsel for

the petitioner, Sri.Jaishankar V.Nair, the learned counsel for the

Directorate of Enforcement as well as Sri.K.K.Dheerendrakrishnan,

the learned amicus curiae.

7. Sri. B.A. Aloor, the learned counsel for the petitioner,

submitted that the statement of the accused No.2 recorded under

Section 164 of Cr. P.C is a public document and therefore the

petitioner is entitled to get a copy. He placed reliance on the

decision of the Division Bench of the Allahabad High Court in

Raju Janaki Yadav v. State of Uttar Pradesh and Others

(2013 Crl LJ 78) and of the Division Bench of the Andhra Pradesh

High Court in Guruvindapalli Anna Rao and Others v. State

of A.P (2003 KHC 2656). Sri. Dheerendrakrishnan, the learned

amicus curiae, submitted that the statement under Section 164 of

Cr.P.C gets the status of a public document only after cognizance

is taken by the court. The learned amicus curiae further

submitted that only a person who can show that he has a

substantial interest in the public document is entitled to a copy of

the same. He relied on the decision of the Full Bench of the

Madras High Court in State of Madras v. G. Krishnan (AIR Crl.M.C.No.4130/2022

1961 Mad 92), of the Apex Court in State of Karnataka by

Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014

KHC 4321) and in Miss 'A' v. State of Uttar Pradesh and

Another (2020 (5) KHC 441), of the Division Bench of the Madras

High Court in Murugasami v. State and Another (2017 KHC

5630), and of the Single Benches of this Court in Shakkeer M.K

v. State of Kerala (2014 (3) KHC 759), Varghese M.U v. CBI,

Cochin (2015 (3) KHC 417) and Athulya v. State of Kerala

(2019 (5) KHC 920) in support of his submission. Sri. Jaishankar

V.Nair, the learned counsel for the Directorate of Enforcement,

submitted that the further investigation is in progress and as

such, the statement of the accused No.2 recorded under Section

164 of Cr.P.C must be kept confidential till supplementary

complaint is filed. He further submitted that the petitioner being a

stranger to the proceeding is not entitled to the copy at all.

Question No:1

8. The petitioner's right to obtain certified copies has to

be adjudged in terms of the provisions of Sections 74 and 76 of

the Indian Evidence Act. "Document" means any matter

expressed or described upon any substance by means of letters, Crl.M.C.No.4130/2022

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 (S.3 of the Evidence Act). Documents are divided into

two categories: Private Documents and Public Documents. Public

documents are (1) documents forming the acts or records of the

acts (i) of the sovereign authority, (ii) of official bodies and

tribunals, and (iii) of public officers, legislative, judicial, and

executive, of India or of a commonwealth or of a foreign country,

and (2) public records kept in any State of private documents

(S.74 of the Evidence Act). Documents that do not fall within the

above description are private documents (S.75 of the Evidence

Act).

9. Documents which are records of acts of public officers,

legislative, judicial, and executive are public documents going by

Section 74(1)(iii). 'Public Officer" has been defined under Section

2(17) of the Code of Civil Procedure which includes every judge

and every officer of a court of justice. To be a public document, it

should be a record of the act of the court. The record itself would

not be a public document. There is a distinction between the

record of the court and the record of the acts of the court. It is Crl.M.C.No.4130/2022

only the record of the acts of the court that is a public document.

Thus, deposition of witnesses recorded by a judge/an officer of

the court, judgment, and decree are public documents as they

are records of acts of court. But pleadings, affidavits, and

petitions filed in court, cannot be said to form such acts or

records of acts, and are, therefore, not public documents.

10. Section 164 of Cr.P.C. confers power on Magistrates

specified in Sub-section (1) thereto to record any statement or

confession made to them during an investigation by the police

before the commencement of the enquiry or trial. The statement

may be made by an accused, or by one who may ultimately

become an accused, or by a witness capable of giving useful

information. Interests of justice require that such statements

should be recorded in a manner which would be above cavil and

not open to objection under Sections 25 and 20 of the Evidence

Act. Section 164 Cr.P.C. provides the machinery for the record of

such confessions and statements. The section prescribes the

mode in which the confession or statement of an accused/person

is to be recorded. Precautions should be taken to see that it is

voluntarily made and that what he says is carefully recorded and Crl.M.C.No.4130/2022

then read over to him to ensure accuracy. Recording of confession

or statement is a solemn act and the Magistrate must see that

the formalities prescribed in Sections 164 and 281 are strictly

complied with. No doubt, the Magistrate recording it performs a

duty imposed on him by statute, a public duty. It is a judicial act.

The statement so recorded is the record of the act of a Magistrate

discharging his judicial function.

11. A Full Bench of the Madras High Court in G. Krishnan

(supra) has elaborately considered the definition of 'public

documents', and the question as to whether the statements

recorded under Section 164 of Cr. P.C are public documents and

finally the right to obtain the certified copy thereof. It was

contended on behalf of the State that a confession or statement

made under Section 164 Cr.P.C was in substance nothing more

than a statement of the deponent, a private individual; the

recording of the same under Section 164 is done with the object

of perpetuating the testimony, so as to pin down the parties

making statements from going behind them and thus the record

of such confessions or statements cannot give what essentially is

an individual's statement, the status of a public act. Repelling the Crl.M.C.No.4130/2022

contention, it was held that a Magistrate recording a statement

under Section 164 of Cr.P.C is performing a judicial act and

therefore the record is a public document within the meaning of

Section 74(1). A Division Bench of the Allahabad High Court in

Raju Janaki Yadav (supra) held that recording statement under

Section 164 of Cr. P.C indicates the performance of an official and

judicial function by a Magistrate and, as such, the statement so

recorded assumes the character of a public document. The same

view was reiterated by the Division Bench of the Madras High

Court in Murugasami (supra) and the Division Bench of the

Andhra Pradesh High Court in Guruvindapalli Anna Rao

(supra). This court in Shakkeer M.K (supra), Varghese M.U

(supra) and Athulya (supra) considered the question whether the

accused/victim is entitled to copies of the statement recorded

under Section 164 of Cr. P.C on the premises that the said

statement is a public document.

12. Thus, I answer the first question in the affirmative that

the record of a statement recorded under Section 164 of Cr. P.C,

being the record of an act of a public officer done in the discharge

of his duty, is a public document falling under Section 74(1)(iii) of Crl.M.C.No.4130/2022

the Indian Evidence Act.

Question No:2

13. The right to obtain a certified copy of a public

document presupposes the right to inspect it. S.76 of the Indian

Evidence Act clothes any person who has a right to inspect a

public document in the custody of a public officer, with a right to

obtain on demand a copy thereof on payment of the legal fee

therefor. Every person has the right of inspecting public

documents in which he is interested in the protection of such

interest. This is a common law right and right created by the

Evidence Act. The Evidence Act is silent as to the right of

inspection. The extent of the right depends upon the interest

which that person has in the document and on what is reasonably

necessary for the protection of such interest.

14. The learned counsel for the petitioner heavily relied on

the decision of the Full Bench of the Allahabad High Court in Raju

Janaki Yadav (supra). It is true that in the said decision it was

held that statement of the witnesses recorded under S.164 of the

Code indicates the performance of the official and judicial

function by a Magistrate as an official and as such, it is a public Crl.M.C.No.4130/2022

document and the accused is entitled to get the certified copy of

the same. But prior to this, the Full Bench of the Madras High

Court in G. Krishnan (supra) has held that though the statement

recorded under S.164 of a witness is a public document, the

accused would have no right to obtain copies of the same before

a charge - sheet is filed, notwithstanding S.76 of the Indian

Evidence Act. It has been observed that the accused will be

entitled to copies of the statements under S.164 Cr.P.C as a

person interested, but his right to obtain such copies, before the

filing of the charge - sheet has been taken away by implication by

the provisions of S.173(4) of Cr.P.C (S.207 of the present Code) and

he will be entitled to the copies only in accordance therewith. In

Shivanna (supra), the Apex Court has issued various directives

in the form of mandamus to all police stations in the entire

country. One of the directions was that a copy of the statement

under S.164 of the Cr.P.C. should be handed over to the

investigating officer immediately with a specific direction that the

contents of such statement should not be disclosed to any person

till the final report/charge sheet is filed under S.173 of the Cr.P.C.

A Division Bench of the High Court of Bombay in Maria Monica Crl.M.C.No.4130/2022

Susairaj v. State of Maharashtra (2009 KHC 5545) agreed

with the view taken by the High Court of Madras in G. Krishnan

(supra). It was held that an accused is not entitled to get a copy

of even his own confession statement recorded under S.164

Cr.P.C before the final report is filed. The Division Bench of the

Madras High Court in Murugasamy (supra) reiterated the same

view and held that the statement or confession recorded under

Section 164 of Cr.P.C, dying declaration, and test identification

parade report are documents which cannot be shared with the

accused until the final report is filed. A Single Bench of this Court

in Shakkeer (supra) held that statement of a prosecutrix in a

rape case recorded under Section 164 of Cr.P.C has to be kept

secret till the final report is filed. Another Single Bench of this

court in Varghese M.U (supra) held that the copy of the

statement under Section 164 of Cr. P.C shall not be given to

anyone other than the Investigating Officer, until and unless it is

made public by him by making it part of the records of the case

without any reservation. In Athulya (supra), a Single Bench of

this Court considered the right of the victim to get a copy of her

own statement recorded under Section 164 of Cr.P.C. Relying on Crl.M.C.No.4130/2022

Shivanna (supra) it was held that the victim is not entitled to the

copy till the final report is filed under Section 173 of Cr.P.C.

Finally, the Apex Court in Miss 'A' (supra) held that filing of the

charge - sheet by itself, does not entitle an accused to copies of

any of the relevant documents including a statement under S.164

of Cr. P.C and it is only after taking of the cognizance and

issuance of the process that the accused is entitled, in terms of

S.207 and S.208 of the Code, to copies of the documents referred

to in said provisions. It was specifically observed in para 17 of the

judgment thus:

"As a logical extension of the directions passed by this Court in Shivanna (supra), no person is entitled to a copy of the statement recorded under S.164 of the Code till the appropriate orders are passed by the Court after the charge

- sheet is filed. The right to receive a copy of such a statement will arise only after cognizance is taken and at the stage contemplated by S.207 and S.208 of the Code and not before."

All the decisions stated above deal with the right of the accused

and the victim to get the statement recorded under S.164 of

Cr.P.C. None of the decisions deal with the right of a third

party/stranger to the proceedings. As stated already, the right to

obtain copies of public documents depends on the applicant's Crl.M.C.No.4130/2022

right to inspect them. The legislature intended to recognise the

right generally (i. e, the right to inspect) for all persons who can

show that they have an interest for the protection of which it is

necessary that liberty to inspect such document should be given.

(vide R v. Arumugam, 20 Mad. 189). In the eye of the law, every

person has a right to inspect public documents, provided he

shows that he is individually interested in them. No doubt, an

accused or a victim is a person interested in the statement

recorded under Section 164 of Cr. P.C and as such, they would be

entitled to inspect and have copies of the same. But so far as a

third party/stranger is concerned, he would be entitled to inspect

and have the certified copy of the statement under Section 164 of

Cr.P.C only if he has made out sufficient interest showing that

such inspection is reasonable and necessary for the protection of

his interests. Thus, applying the reasoning in G. Krishnan

(supra) that the right of the accused to obtain copies of the

statement under S.164, before the filing of the charge - sheet has

been taken away by implication by the provisions of S.173(4)

Cr.P.C and the dictum laid down in Miss 'A' (supra), it can safely

be concluded that no person (be it accused, victim or a third Crl.M.C.No.4130/2022

party) is entitled to a copy of the statement recorded under S.164

of the Code till the final report is filed and cognizance is taken. In

the case of a third party/stranger, he must additionally show that

he has a genuine interest in the document. The said interest

should be direct and tangible. An interest which is illusory, or

imaginary is no interest whatsoever. The second question is

answered accordingly.

Conclusions and Relief

15. Coming to the merits, the petitioner alleges that the

accused No.2 in SC No.610/2020, in her statement under Section

164 of Cr.P.C, might have made certain imputations against her.

The learned counsel for the petitioner submitted that the

petitioner has compelling reasons to believe that the accused

No.2 in the statement has alleged her of having conspired with

the Chief Minister and others to trap the accused No.2 after her

remarks against the Government. These are only mere

apprehensions of the petitioner. The petitioner could not show

any factual basis for the said apprehensions. The petitioner could

not say how did she come to know that there were imputations

against her in the statement. She could not show any real or Crl.M.C.No.4130/2022

substantial interest in the document. The interest projected is

speculative and conjectural. That apart, further investigation is

still going on. The supplementary complaint is yet to be filed.

Therefore, the petitioner is not entitled to get the copies of the

statement sought. The impugned order, thus, does not warrant

any interference.

16. I place on record my appreciation for the extensive

research done and able presentation made by the learned amicus

curiae, Sri. Dheerendrakrishnan.

In the light of the above findings, the Crl.M.C stands

dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp Crl.M.C.No.4130/2022

APPENDIX OF CRL.MC 4130/2022

PETITIONER ANNEXURES

Annexure1 TRUE COPY OF ORDER IN CRL.MP NO.1572/2022 BEFORE THE HONB'LE DISTRICT AND SESSIONS COUT ERNAKULAM WAS DISMISSED ON 18.06.22