Delhi High Court
State vs Gian Singh on 13 October, 1980
JUDGMENT Charanjit Talwar, J.
1. The facts, so far as they are relevant for the decision of this petition, are stated in my order of July 29, 1980, by which I had referred the case to a larger Bench. Before analysing the rival contentions, the two questions, which were formulated for considerations, may be noted :
"First - Whether the post-mortem reports and the medico legal examination report are public documents, and, Second - Whether the accused are entitled to receive copies of the public documents on which the prosecution is relying during investigation of the case."
2. Bawa Gurcharan Singh, learned counsel for the respondent, has fairly conceded before us that the accused would be entitled to copies of those documents during investigation of the case only if the documents are held to be public documents. He, therefore, limited his arguments to the first question. Mr. Dinesh Chand Mathur learned counsel for the petitioner, besides controverting the submission on that question, urged that even if the documents are held to be so, the accused-respondent is not entitled to receive copies of the same till such time a report under S. 173 of the Code is filed by the prosecution. He further submitted that in any case the learned Magistrate was incompetent to direct the Investigating Agency to supply copies of those documents as he was not the custodian of the original three reports, two post-mortem reports and one medico-legal examination report, which contain the observations as well as the opinion of Dr. Bharat singh, the police surgeon who performed the autopsy. It is the admitted case of the parties that the original reports were forwarded by the police surgeon to the Investigating Officer and they continue to be in his custody. According to Mr. Bawa, the reports of Dr. Bharat Singh squarely fall within the purview of S. 74 of the Evidence Act. The post-mortem was conducted by Dr. Bharat Singh in his capacity as a public officer and his reports recording his findings or observations are a record of that official Act. The documents are thus covered by Clause (iii) of sub-section (1) of S. 74 which reads as under :-
"74. The following documents are public documents :-
(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 any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents."
The contention of Mr. Bawa is that the investigation of the case is supervised under the Code by the Magistrate and therefore, the above reports, which are ex facie public documents as per Section 74, are within his overall control and custody. He is, therefore, empowered to direct supply of certified copies of the same.
3. To appreciate the submissions made by the learned counsel for the parties, the provisions enabling the Investigating Officer to seek post-mortem report may be noticed.
4. Under S. 174 of the Code an officer in charge of a police-station or some other police-officer specially empowered by the State Government in that behalf, on receipt of information that a person has died under suspicious circumstances, is duty bound to give intimation of this fact to the nearest Executive Magistrate empowered to hold the inquest, and on reaching the spot he is obliged to draw up a report describing the injuries found on the body. The report, which is to be made in the presence of two or more inhabitants of the neighborhood, has also given apparent cause of death and the weapon or instrument by which the injuries were caused. This report is to be submitted in a prescribed form as per the provisions of Rule 25.35 of Chap. XXV of the Punjab Police Rules, 1934 (Vol. III).
5. The object of S. 174 of the Code is merely to ascertain the cause of death. The inquiry at that stage is to be confined for that purpose. Under sub-section (3) of S. 174 of the Code when there is a doubt as to the cause of death or where the police-officer otherwise considers it expedient to do so, the body is to be forwarded for post-mortem examination to the nearest Civil Surgeon or other qualified officer appointed in this behalf by the State Government. The authorised medical officer, after examining the body and conducting the autopsy, is to fully record the result of his external as well as internal observations. The observations have to be recorded in the form prescribed by the State Government. As per Punjab Police Rule 25.47 the duty is cast upon the Medical Officer to give his detailed opinion. The rule reads as under :
"25.47. (1) The medical officer having completed his examination of the person, body, or article shall record in full the result arrived at, and in the case of a post-mortem examination, his opinion as to the cause of death. He shall also record a list of any articles which he may intend to send to the Chemical Examiner. The report shall be written on the back of, or attached to, form 25.39 (1) and shall contain such reference to the person or object examined as will leave no possible doubt as to which case the remarks apply.
The report shall be placed with the police file of the case and may be used by the medical officer to refresh his memory when giving evidence."
6. Mr. Mathur submits that the post-mortem report, which has been prepared by Dr. Bharat Singh in the present case, was merely a step in investigation to enable the Investigating Officer to ascertain the cause of death. The above quoted Punjab Police Rule clearly shows that the report is to be kept on the police file, the intent being that it is confidential as long as the investigation is in progress. The argument is that only in the event of it being relied upon by the prosecution, a copy of it is mandatory to be supplied to the accused as per the provisions of S. 207 of the Code. The learned counsel further submits that the reports of Dr. Bharat Singh are not admissible in evidence except for the purpose of contradicting him, although under sub-rule (2) of the Punjab Police Rule 25.47 he is permitted to use it for refreshing his memory while giving evidence. Another aspect put forth is that as the post-mortem report is not covered by the provisions of S. 293 of the Code, it cannot, therefore, be tendered in evidence. Section 293 relates to reports of certain Government Scientific Experts obtained by the Investigating Agency during the course of investigation which reports can be used as evidence in any inquiry or trial under the Code. Sub-section (4) of that Section confines (to) the report made by :
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
Dr. Bharat Singh the Police Surgeon, admittedly does not fall in any of the above categories. His report, therefore, cannot be used in evidence in any inquiry, trial or other proceedings under the Code, so urges Mr. Mathur.
7. Mr. Bawa, the learned counsel for the respondent, however, submits that an Executive Magistrate, a judicial officer, is empowered to hold inquest as contemplated under S. 174 of the Code. The inquest report drawn up by the police-officer and the report of the post-mortem which is either to be written on the back of that report or is to be attached with it, vide Punjab Police Rule 25.47, have to be produced before him. The inquest proceedings, according to him, are judicial proceedings and the accused, therefore, is entitled to the inspection of the inquest report as well as the post-mortem report. As such, he has a right of obtaining a copy thereof on payment of requisite fee even during the investigation of the case. He has referred to various provisions of the Code under which the Investigating officer is to submit to the Magistrate the result of his investigation. The contention is that the report, made pursuant to the issuance of search warrants, forms part of the judicial file and, therefore, is a public document as envisaged under Section 74 of the Act. Similarly, he says that post-mortem report since it is to be produced before a magistrate ought to be deemed to be a public document. It is further submitted that it is not the mode of proof of a document which makes it a public document. The mode of proof is not a test to determine whether the document is a public document. If the document is a public document as provided in Section 74 of the Evidence Act, the accused are, ex facie, entitled to its inspection and as such can get a copy of the same. The authority cited on behalf of the petitioner , State of Madras v. G. Krishnan) in support of the contention that the accused is not entitled to a copy of a public document on which the prosecution is relying during investigation, is sought to be distinguished by Mr. Bawa on the ground that the said case is to be confined only to the statements recorded by a Magistrate under S. 164 of the Code. Mr. Bawa submits that keeping in view the policy of the Legislature that the statement of a witness recorded under S. 161 of the Code can only be used to contradict a witness when he appears in the witness-box, and for no other purpose and that the accused are entitled to its copy only if the prosecution cites the maker of it as a witness, the statement recorded under S. 164 of the Code, which has been recorded by a Magistrate while performing his judicial functions, cannot also be made public during investigation of the case. The Investigating Agency may or may not rely on the statement of that witness. Mr. Bawa, however, submits that on the petitioner's own showing a copy of the injury report including the post-mortem report are to be provided on payment of requisite fee to the Insurance Companies, or the victims or the dependents of the deceased, as the case may be, as per the order of Commissioner of Police passed on August, 14, 1980. The plea is that by virtue of the said order the dependents of the deceased can get a copy of the post-mortem report during investigation of the case, the accused ought not to be deprived of the same. According to him, he said order (A copy of which has been placed on the record by the learned counsel for the State), makes it clear that the post-mortem and/or the injury report are public documents.
8. In my view, the plea being put forth on behalf of the respondent that the post-mortem report and the injury report are public documents is misconceived. A bare reading of the provisions of S. 174 of the Code and the relevant Punjab Police Rules shows that the post-mortem report is obtained by the investigating Officer during investigation of the case to find out the cause of the death. The inquiry as contemplated under S. 174 of the Code so not to be extended for the purpose of finding out the person who caused the death. The post-mortem report is to form a part of the police file. Although this file is to be produced before the Magistrate at the time of remand, yet the report of the Medical Officer forming part of it cannot be made public by the Magistrate. The contention of Mr. Bawa that as the post-mortem report is to be shown to the Magistrate, it, therefore, becomes a part of the judicial record and as such he is empowered to permit inspection of the same is without any merit.
9. As a rule the post-mortem report is bound to contain the opinion of the Medical Officer. He is to opine whether the injuries were post-mortem or ante-mortem; he is to state the approximate time of death. Invariably he must mention the kind of weapon which was used in causing the injuries. In the printed form prepared as per Punjab Police Rule 25.39, three facts, on which the medical officer must give his opinion, have been enumerated in column 4. Those are :-
"(a) As to the means by which the injuries were caused.
(b) In the case of injuries, poisoning not causing death, the extent of the injuries or sickness, and, in the latter case, the nature of the poison ascertained or suspected.
(c) In the case of death - (1) whether death by violence is ascertained and cause of death, and (2) whether death is suspected from poisoning, the poison ascertained or suspected.' In my view the post-mortem report, as contemplated by the said Rule, is a report by an expert. I agree with the rule laid down in Abdul Halim Khan v. Saadat Ali Khan, AIR 1928 Oudh 155, wherein it is observed that "when a Civil Surgeon reports to a Magistrate he is merely giving his expert opinion and is not making a record of his 'Act' in official capacity for the use of the public. It is only his act of making a record in such a capacity that would be considered to be an 'Act' within the meaning of S. 74." In the present case the opinion of the Medical Officer contained in the post-mortem report is only to aid the Investigating Officer in investigation. The report cannot be held to be a record of Medical Officer of his official "Act" for the use of the public. It is well settled that the post-mortem report or an injury report is not substantive evidence. It has to be proved by the maker of it. It cannot, therefore, be termed as a public document as envisaged under S. 74 of the Evidence Act.
10. I hold that the respondent is not entitled, during the investigation of the case, to either inspect or obtain copies of the said post-mortem reports or the injury report. The order of the Commissioner of Police referred to by Mr. Bawa is of no help to the respondent as by virtue of the same it cannot be held that the documents referred to in that order are public documents within the meaning of S. 74 of the Evidence Act. The underlying idea of the said order appears to be to make it easier for the Insurance Companies or the victims or the dependents of the deceased to obtain the copies of those documents without undue delay. The concession has not been made available to the accused by the Cr.P.C.
11. Accordingly, the petition is allowed and the order of the learned Magistrate passed on June 30, 1980, is set aside.
12. Petition allowed.