Valibhai Omarji v. State

J.M. SHELAT

(1) Mr. Barot contended that the learned trial Judge was in error in admitting the Panchnama Ex. 7 in evidence and in relying upon it and contended that the Panchnama Ex. 7 was inadmissible and was hit by the provisions of sec. 162 of the Code of Criminal Procedure. In support of his contention he relied upon the decision of a Division Bench of this Court in Naginlal Nandlal v. The State of Gujarat 1961 G. L. R. 664. Mr. Barot in particular relied upon a passage in that decision occurring at page 673 of the report where it has been stated:- -

For similar reasons a Panchnama made by the police cannot be regarded as a statement made by one Panch witness to another. It can be regarded as a statement made by the Panch witness to the police officer and if so it would be hit by sec. 162 Cri. Pro. Code. If the Panchnama was not made during the course of the investigation. then it would not be hit by sec. 162 Cri. Pro. Code. But we are not dealing with such a Panchnama.

(2) Though these observations and certain other observations in that decision might at first sight appear to assist Mr. Barots contention even Mr. Barot had to concede that in that judgment it has nowhere been laid down that a Panchnama made in a corruption case is necessarily a statement communicated to a police officer and therefore is hit by sec. 162 of the Code of Criminal Procedure. Certain observations in that judgment were evidently made in the context of the Panchnama which was relied upon by the prosecution in that case which as we find from a perusal of that Panchnama did in fact contain several statements which fell under sec. 162 of the Code and which were obviously inadmissible. A Panchnama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them. Panchas are taken to the scene of the offence to see and hear certain things and subsequently they are examined at the trial to depose to those things and their evidence is relied upon in support of the testimony of an Investigating Officer. A Panchnama recorded on such a occasion is in its turn relied upon in support of the evidence of the Panchas as a statement previously made by them under sec. 157 of the Evidence Act.

(3) In Emperor V. Mohanlal Bababhai 43 B. L. R. 163 Beaumont C. J. and Sen J. observed thus:- -

A panchnama is merely a record of what a panch sees. The only use to which it can properly be put is that when the panch goes into the witness box and swears to what he saw the panchnama can be used as a contemporary record to refresh his memory.

(4) As has been held in several cases sec. 157 of the Evidence Act is controlled by sec. 162 of the Code of Criminal Procedure and therefore if a statement though falling under sec. 157 of the Evidence Act were also to fall under sec. 162 of the Code it would be sec. 162 of the Code that would prevail and such a statement would be inadmissible. Reading sec. 157 of the Evidence Act and sec. 162 of the Code of Criminal Procedure together it is clear that the word statement in sec. 157 of the Evidence Act has a wider connotation than the same word used in sec. 162 of the Code. But in order that a previous statement of a witness falls under sec. 162 of the Code two conditions have to be fulfilled viz. (1) that it is a statement to a police officer and (2) that it is made in the course of investigation under Chapter XIV Criminal Procedure Code. The question therefore is whether a Panchnama is a record of a statement which falls within the ban of sec 162 of the Code In a case falling under sec. 161 of the Penal Code or under sec. 5(1) (d) of the Prevention of Corruption Act an offence thereunder is complete when an illegal gratification is accepted by an accused person. Generally a Panchnama produced in such a case falls into two parts viz. (1) the recording of what occurred before the acceptance of an illegal gratification and (2) what occurred at the time of the acceptance and subsequently. The first part of such a Panchnama obviously would not fall under sec. 162 of the Code even if it were a statement to a police officer because it cannot be said to have been made in the course of investigation of a cognizable offence no such offence having yet taken place. Does then the second part of the Panchnama fall under sec. 162 of the Code As stated before a previous statement of a witness complying with the conditions laid down in sec. 157 of the Evidence Act is admissible. The exception is that if it fulfills the two conditions laid down in section 162 of the Code it becomes inadmissible thereunder except for the limited purpose therein stated. The important words in section 162 of the Code are No statement made by any person to a police officer . Therefore the statement must be one to a police officer and unless it is to a police officer it does not fall within the mischief of section 162 of the Code. Therefore it is necessary that the statement in question must have the element of communication to a police officer. If a Panchnama is merely a record of facts which took place in the presence of panchas and of what the Panchas saw and heard as observed in Emperor v. Mohanlal Bababhai but is not a record of a statement communicated to a police officer it would be admissible under section 157 of the Evidence Act and would not fall within the ban of section 162 of the Code of Criminal Procedure. As its very name signifies it is a document recording what the Panchas saw and heard. At the same time if a Panchnama does contain a statement which amounts to a statement communicated to a police officer during the course of his investigation it would fall within section 162 of the Code. Therefore every time when a Panchnama is tendered in evidence it would be the duty of the Court to ascertain whether any part of it falls within the mischief of section 162 of the Code of Criminal Procedure and if it does fall the Court should take out that portion from being admitted in evidence.

(5) It was urged however by Mr. Barot that in the instant case the Panchnama was not recorded by the panchas themselves but its contents were dictated by them and it was the police officer investigating this case who wrote it out and kept the Panchnama in his custody until it was produced in the trail Court. The fact however that it was written out by the officer as dictated to him by the panchas would not in our view make any difference for that is merely a mode in which the Panchnama is recorded nor would the officer keeping that document with him make any difference. As held in Santa Singh v. State of Punjab A. I. R. 1956 S. C. 526 the mere presence of a police officer when a statement is made does not by itself render such a statement inadmissible. So long as a Panchnama is a mere record of things heard and seen by panchas and does not constitute a statement communicated to a police officer in the course of investigation by him it would not fall within the mischief of section 162 of the Code. This very distinction appears to have been made in Naginlals case at page 673 of the report. Mr. Barot in fact was not able to point out any particular statement in the Panchnama which according to the above test would fall within the mischief of section 162 of the Code. That being so the learned trial Judge was not in error in admitting the same in evidence and the contention raised by Mr. Barot must consequently fail.

(6) Appeal dismissed.