Statement U/S 164 CrPC Is A Public Document, But Third Party Has To Establish Direct Interest To Get A Copy: Kerala High Court In Saritha's Plea

In a significant decision, the Kerala High Court on Thursday held that a statement recorded under Section 164 of the Code of Criminal Procedure is a public document falling under Section 74(1)(iii) of the Indian Evidence Act since it is the record of an act of a public officer done in the discharge of his duty.

However, Justice Kauser Edappagath also clarified that no person is entitled to a copy of the 164 statement until the final report in the case has been filed and cognizance is taken in the matter. The Judge emphasised that in the case of a stranger seeking such copies, they are bound to furnish genuine and tangible interest in the document. 

"No person (be it accused, victim or a third 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 Court was adjudicating upon a petition filed by Saritha S. Nair, the prime accused in the solar panel scam seeking copies of the Section 164 statement given by Swapna Suresh, an accused in the diplomatic gold smuggling case.

The Enforcement Directorate registered an Investigation Report against three accused in 2020 under the Unlawful Activities (Prevention) Act. After investigation, a prosecution complaint under the Prevention of Money Laundering Act was filed at the Special Court. The Special Court took cognizance of the offence and numbered the case. While the further investigation was in progress, Swapna Suresh gave a statement under Section 164 before the Chief Judicial Magistrate, Ernakulam.

The petitioner who is alleged to be a witness in this case filed an application at the Special Court seeking a copy of the 164 statement contending that Suresh had made certain imputations against her in the statement for which she intends to pursue a legal remedy. The Special Court turned down the prayer holding that the petitioner being a third party to the proceedings is not entitled to the copy at this stage. It was against this decision that Nair moved the High Court.

Two significant legal questions were raised in this case: 

• 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?

Advocate K.K Dheerendrakrishnan was appointed as amicus curiae to assist the court answer these questions. Advocate B.A. Aloor appeared for the petitioner while Advocate Jaishankar V.Nair appeared for the Enforcement Directorate. 

Upon hearing the rival contentions, the Court recalled that to be a public document, it should be a record of the act of the court. It was found that 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 only the record of the acts of the court that is a public document."

Therefore, it was held that the deposition of witnesses recorded by a judge is a public document since they are records of acts of court. Moreover, it was found that a Magistrate recording a statement under Section 164 performs a duty imposed on him by statute, which is a public duty and a judicial act.

This implied that the statement so recorded is the record of the act of a Magistrate discharging his judicial function.

"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 the Indian Evidence Act."

The Court further noted that every person has the right to inspect public documents in which he is interested in the protection of such interest. This was a common law right and right created by the Evidence Act.

However, the Evidence Act was silent regarding the right of inspection. The Court held that 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.

After examining a set of precedents on the issue, Justice Edappagath concluded that most of the decisions dealt with the right of the accused and the victim to get the statement recorded under S.164. None of the decisions dealt with the right of a third party/stranger to the proceedings.

"The right to obtain copies of public documents depends on the applicant's 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."

Therefore, the Single Judge 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. However, so far as a third party/stranger is concerned, he would be entitled to inspect and have the certified copy only if he has made out sufficient interest showing that such inspection is reasonable and necessary for the protection of his interests.

Nevertheless, it was found that the apprehensions projected by the petitioner were not substantiated sufficiently and therefore 'speculative'. As such, the petition was dismissed.