Indian Kanoon - Search engine for Indian Law

16. We are not impressed by the argument of Shri Mittal that if his interpretation is not accepted, Rule 16(iii) of the Rules would become redundant. A plain reading itself clearly shows the distinction between sub-rule (3) of Rule 15 and Rule 16(iii) of the Rules. Sub-rule (3) of Rule 15 is relevant only with respect to the preliminary enquiry. It provides that there shall be no bar to the Inquiry Officer bringing on record any other document to the file of the preliminary enquiry if he considers it necessary after supplying copies to the accused. It further clearly provides that the file of preliminary enquiry does not form part of a formal departmental record but statements can be brought on record when witnesses are no longer available. Thus if there was a preliminary enquiry and witnesses are no longer available, only then the statements recorded in the preliminary enquiry can be brought on the record. As against this sub-rule (iii) to Rule 16 is a general provision. This Rule postulates examination of all the witnesses in the presence of the accused, who is also to be given an opportunity to cross examine them. However, in case, the presence of any witness cannot be procured without undue delay, inconvenience or expenses, his previous statement could be brought on record subject to the condition that the previous statement was recorded and attested by a police officer superior in rank than the delinquent. If such statement was recorded by the Magistrate and attested by him, then also it could be brought on record. The further requirement is that either the statement should have been signed by the person concerned, namely, the person, who has made that statement, or it was recorded during an investigation or a judicial inquiry or trial. The Rule further provides that unsigned statement shall be brought on record only through the process of examining the officer or the Magistrate, who had earlier recorded the statement of the witness, whose presence could not be procured. The Supreme Court in Kuldeep Singh v. The Commissioner of Police JT 1999 (8) SC 603 explained that Rule 16(iii) is almost akin to Sections 32 and 33 of the Evidence Act. Before the Rule can be invoked, the factors enumerated therein, namely, that the presence of the witness cannot be procured without undue delay, inconvenience or expense, have to be found to be existing as they constitute the condition precedent for the exercise of jurisdiction for this purpose. In the absence of these factors, the jurisdiction under Rule 16(iii) cannot be exercised. The two Rules clearly operate in different situations.