Evidence of witness whose statement is not recorded during investigation

Though there cannot be a general prohibition for examining 
the   witness   whose   statement   had   not   been   recorded   during   the 
course of investigation,   propriety   requires that the statement of 
such a person should be recorded atleast before he is permitted to 

enter  the witness box.  If the statement of the said Chaskar has not 
been recorded or, at any rate, is not available, it was necessary for 
the investigating agency to have recorded his statement even at the 
stage of trial by seeking  permission of the Court for the same.   It is 
only after his statement would be recorded, the Court would be in a 
position to form an opinion as to whether the evidence of such a 
witness would be necessary,   desirable or even essential for a just 
decision of the case.  Without knowing what the witness is likely to 
say,   no   proper   opinion   could   have   been   formed   by   the   learned 

7.
Special Judge.
The procedure of recording the statement of a person by the 
investigating agency, before he is examined as a witness, though his 
statement  was   not   recorded   earlier  during   the   investigation,   also 
ensures that the accused is made aware as to what the witness is 
likely to depose.   This would be necessary for providing a proper 
opportunity to the accused of defending himself. 
CRIMINAL APPLCATION NO.346 OF 2012
IN THE  HIGH COURT OF JUDICATURE AT BOMBAY


 CRIMINAL APPELLATE JURISDICTION
Kishore Singnapurkar and others

  versus
The State of Maharashtra and ors


CORAM : ABHAY M. THIPSAY, J.
   
DATED : July 9, 2012



2. By consent, admitted and taken up for hearing forthwith.
3. The applicant is one of the accused in Special Case No.48/00, 
pending   before   the   Special   Judge,   Bombay.     The   said   case   is   in 
respect of offences punishable under the Prevention of Corruption 
Act, apart from the offences punishable under section 120B of the 
IPC   read   with409,   420,   468   and   471   of   the   IPC.     The   trial   has 

progressed   substantially.       In   the   midst   of   trial,   the   prosecution 
made  an   application  for  calling one  Mr.Chaskar   as  a  witness.    It 
appears that initially the application was styled as “for recalling” but 
later on, the relevant prayer was corrected  by saying that the said 
Mr.Chaskar should be called as a witness 'under the provisions of 
section 311 of the Code of Criminal Procedure.'  The learned Special 
Judge, after hearing the parties, allowed the said application.  Being 
aggrieved thereby, the applicant has approached this Court invoking 
Admittedly, the said Chaskar was not cited as a witness in the 

4.
its inherent powers.
5.
list of witnesses contained in the charge­sheet.
It is not necessary to go into the question whether it would 
just  and  proper   to  permit  the  said   Chaskar   to  be  examined  as  a 
witness, at this stage.  What, however, needs to be observed is that 
no statement of Mr.Chaskar recorded in the course of investigation 
i.e.   under   the   provisions   of   section   161   of   the   Code   of   Criminal 
Procedure,   is   on   record.     It   is   suggested   before   me   that   the 
statement had been recorded in the course of investigation but, that 
the same is not available.  In any case, admittedly, even an ordinary 
copy of the said statement is not available and certainly it is not in 
the charge­sheet.
6.
Though there cannot be a general prohibition for examining 
the   witness   whose   statement   had   not   been   recorded   during   the 
course of investigation,   propriety   requires that the statement of 
such a person should be recorded atleast before he is permitted to 

enter  the witness box.  If the statement of the said Chaskar has not 
been recorded or, at any rate, is not available, it was necessary for 
the investigating agency to have recorded his statement even at the 
stage of trial by seeking  permission of the Court for the same.   It is 
only after his statement would be recorded, the Court would be in a 
position to form an opinion as to whether the evidence of such a 
witness would be necessary,   desirable or even essential for a just 
decision of the case.  Without knowing what the witness is likely to 
say,   no   proper   opinion   could   have   been   formed   by   the   learned 

7.
Special Judge.
The procedure of recording the statement of a person by the 
investigating agency, before he is examined as a witness, though his 
statement  was   not   recorded   earlier  during   the   investigation,   also 
ensures that the accused is made aware as to what the witness is 
likely to depose.   This would be necessary for providing a proper 
opportunity to the accused of defending himself. 
8.
Under   the   circumstances   and   in   view   of   the   aforesaid 
discussion, the learned counsel for the parties do not object to the 
following order being passed:
O R D E R
9. Application is allowed.  The impugned order is set aside.
10. The   prosecution/investigation   agency   shall   be   at   liberty   to 
record the statement of the said Chaskar under the provisions of 

Section 161 of the Code of Criminal Procedure and supply a copy 
It is after the copy of the statement of the  said Chaskar is 
11.
thereof to the Court, as well as to the accused persons.
furnished to the Court and supplied to the accused persons, that the 
prosecution   may   press   the   application   for   examining   the   said 
Chaskar as a witness and such prayer, it is needless to say, shall be 
considered by the Court on merits and in accordance with law.  
Application is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY,J)
    

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