SUNITA DEVIversusSTATE OF BIHAR AND ORS.

                              SUNITA DEVI                                      A
                                     v.
                     STATE OF BIHAR AND ORS.

                          DECEMBER 6, 2004

             [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]
                                                                               B

     Code of Criminal Procedure, 1973:

     Sections 438 and 439-Distinction between-Held: Order under
S. 438 is passed in anticipation of arrest and becomes effective at the very   C
moment of arrest whereas the order under S. 439 is passed after arrest.

     Section 438-Anticipatory bail-High Court granted blanket protection
for unlimited duration-Correctness of-Held : Anticipatory bail can be
granted for a limited during only-Grant of unconditional protection is         D
clearly untenable and is liable to be set aside.

       Section 439-"Custody"-Meaning of-Held: The expression "custody"
 must be taken to be a compendious expression referring to the events on
 the happening of which the Magistrate can entertain the bail petition of
 the accused-Hence, a person who is under the control of the court or          E
 is in the physical hold of an officer with coercive power is in "custody"
for the purpose of S. 439.

     Section 439-Bail-Application for-Maintainability-Held: Unless a
person is in custody an application for bail is not maintainable.              F
      Sections 207 and 208-Supply of police report and other documer.ts
to the accused-Supervision notes of supervisory police officers-Entitlement
to-Held: Supervision notes are not parts of the papers supplied to the
accused-Only those documents which are sought to be utilized against an
accused are to be supplied to him-Non-supply of documents is not               G
necessarily prejudicial to the accused-Court has to give a definite finding
about the prejudice or otherwise-Supervision notes cannot be. utilized by
the prosecution as a piece of material or evidence against the accused-
Accused also cannot make any reference to them-If any reference thereof
is made before any court they are not to be taken note of-Directions to        H
                                    707
    708                 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   ensure confidentiality of supervision notes issued

          Words & Phrases:

          "Per incuriam "-Meaning of

B        "Custody' '-Meaning of-In the context of S. 439 of the Code of
    Criminal Procedure, 1973.

          "Move"-Meaning of-Comprises all things necessary to be done by
    a litigant to obtain an order of the court direczing the relief sought.
c
         The appellant filed a complaint against the respondent who filed
    an application before the High Court for anticipatory bail under Section
    438 of the Code of Criminal Procedure, 1973, which was allowed. Hence
    the appeal.

D        On behalf of the appellant, it was contended that the blanket
    protection given by the High Court was contrary to the scheme of the
    Code and the legislative intent: that the protection could be given only
    for a limited period in order to enable the accused to apply for bail
    under Section 439 of the Code and that the accused must be in custody
E   for moving such an application.

          Allowing the appeal, the Court

         HELD: I. There is no question of bail unless a person is arrested
    in connection with a non-bailable offence by the notice. The distinction
F   between an order in terms of Section 438 and that in terms of Section
    439 of the Code of Criminal Procedure, 1973 is that the latter is passed
    after arrest where the former is passed in anticipation of arrest and
    becomes effective at the very moment of arrest. [713-E-F)

G        Bal Chand Jain v. State of MP., [1978) 4 SCC 572 and Gur Baksh
    Singh v. State of Punjab, (1980) 2 SCC 565,. relied on.

         2. The view taken in K.L. Verma's case the anticipatory bail may
    be granted for a duration which may extEnd to the date on which the
H   bail application is disposed of or even a few days thereafter to enable
                        SUNITA DEVI v. STATE                          709

  the accused persons to move the higher court is to by treated as having     A
. been rendered per incuriam. (714-G]

       K.L. Verma v. State, (1996) 7 SCALE 20, held per incuriam.

      State v. Ratan Lal Arora, [2004) 4 SCC 590 and State of U.P. v.         B
 Synthetics and Chemicals Ltd., [1991) 4 SCC 139, relied on.

       Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All ER 293, referred
 to.

      3. Unless a person is in custody, an application for bail under
                                                                              c
 Section 439 of the Code would not be maintainable. [715-D-E)

     Abdulsamad Shaikh v. State ofMaharashtra, AIR (1996) SC 1042 and
 Nirmal Jeet Kaur v. State of MP., JT (2004) 7 SC 161, relied on.
                                                                              D
      4. A person who is under the control of the court or is in the
 physical hold of an officer with coercive power is in custody for the
 purpose of Section 439 of the Code. The expression "custody" as used
 in Section 439, must be taken to be a compendious expression referring
 to the events on the happening of which a Magistrate can entertain a         E
 bail petition of the accused. [715-F-G; 716-B-C]

      5. The term "move" comprehends all things necessary to be done
 by a litigant to obtain an order of the Court directing the relief sought.
 Unless the applicant is in custody his making application only under
 SectiOn 439 of the Code will be confer jurisdiction of the Court to which    F
 the application is made. The view regarding extension of time to "move"
 the higher Court as culled out from the decision in K.L. Verma 's case
 shall have to be treated as having been rendered per incuriam, as no
 reference was made to the prescription in Section 439 requiring the
 accused to be in custody. [716-G; 717-A-B-C)                                 G

       K.L. Verma v. State, (1996) 7 SCALE 20, held per imcuriam.

      Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996)
  SC 1042, relied on.
                                                                              H
    710                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A         Henry Campbell Black- Black's Law Dictionary, (6th Edn.), referred
    to.

         6. The protection in terms of Section 438 is for a limited duration
    during which the regular Court has to be moved for bail. Therefore, the
B   order of the High Court granting unconditional protection is clearly
    untenable and is set aside. [717-G; 718-B-C]

          K.L. Verma v. State, (1996) 7 SCALE 20, held per incuriam.

        Salauddin Abdulsamad Shaikh v. State of Maharashtra, AIR (1996)
C   SC 1042, relied on.

         7.1. The supervision notes are not parts of the papers, which are
    supplied to the accused in terms of Sections 207 and 208 are of the Code.
    The documents in terms of Sections 207 and 208 are supplied to make
D   the accused aware of the material, which are sought to be utilized
    against him. Non-supply of documents is not necessarily prejudicial to
    the accused. The Court has to give a definite finding about the prejudice
    or otherwise. The supervision notes cannot be utilized by the prosecution
    as a piece of material or evidence again3t the accused. At the same time
    the accused cannot make any reference to them for any purpose. If any
E   reference is made before any court to the supervision notes, they are not
    to be taken note of by the concerned court. (720-B-C-D-E-F)

        Noor Khan v. State of Rajasthan, AIR (1964) SC 286 and Shakila
    Abdul Gafar Khan v. Vasant Raghunath Dhoble, [2003] 7 SCC 749, relied
F   on.

         7.2. The Chief Secretary of each State and the Union
    Territories and the concerned Director General of Police are
    directed to ensure that the confidentiality of the supervision notes is
    protected. [720-F-G]
G
        CRIMINAL APPELLATE JURISDICTION                Criminal Appeal No.
    1424 of 2004.

         From the Judgment and Order dated 4.7.2003 of the Patna High Court     i•

H   in Crl. M. No. 14464 of 2003.
               SUNITA DEVI v. STATE [PASAYAT, J.]                      711

    Vijay Kumar, Sunil Verma and Aniruddha and P. Mayee for the                A
Appellant.

    Mrs. Sunita, R. Singh, B.B. Singh, Sumit Kumar, Ajay Amritraj and
D.K. Sinha for the Respondents.

     The Judgment of the Court was delivered by
                                                                               B

     ARIJIT PASAYAT, J.: Leave granted.

     Protection to the respondent no. 2-Anuj Kumar under Section 438 of
the Code of Criminal Procedure 1973 (in short the 'Code') is assailed by       C
the appellant.

       A brief reference to the factual aspects would suffice. On 13.2.2002
the appellant (hereinafter referred to as the 'informant') lodged a written
complaint before the officer-in-charge, Sirdala P.S. Nawadah that on           D
13.2.2002 at about I 0.00 p.m. respondent No. 2 Anju Kumar, headman of
Londh Panchayat armed with revolver, Anil Kumar armed with lathi. Sunil
Kumar with lathi and others armed with weapons entered into her house and
the said Anuj Kumar demanded Rs. I 000 from her elder brother Suresh
Vishwakarma. When Suresh Vishwakarma refused to give the same showing
his inability to arrange such a huge amount, Anuj Kumar Assaulted him by       E
the butt ofrevolver on his head and below his eye. When the informant came
for his rescue, she t9o was assaulted by fists and legs and the said Anuj
Kumar demonstratinF the revolver said that since her brother has not given
the money, therefore outraged the modesty of his sister in the presence of
 all. Saying this, the headman Anuj Kumar pulled the informant-Sunita Devi,    F
put her on the ground and lifting her petticoat and saree lied down on her
and attempted to commit rape on her. Further, when seeing the entire
incident the informant's sister Usha Devi came to rescue her, Anil Kumar
hit her on her left thumb and legs with lathi. Thereafter, Anil and Sunil
assaulted the sons of the brother Suresh Vishwakarma, namely Amarjit and
Sujit and her mother with lathi on their faces. Then the informant's family    G
started crying and hearing this the villagers namely Chhotey Lal Pandit,
Puran Singh and others came and have seen the incident. However, because
 of the fear of revolver they could not apprehend accused persons. The
 accused Anuj Kumar thereafter fired thrice in the air from his revolver and
 exhorted his men to loot the shop of Suresh Vishwakarma and then all of       H
    712                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   them looted the articles worth Rs. 10,000 from his shop which included
    watches, radio loudspeakers etc.

          On the basis of the said complaint of the informant, FIR was lodged
    on 15.2.2002 which w~s registered as Sirdala P.S. Case No. 15/2002 under
B   Sections 384/376/511 read with Section 34 of the Indian Penal Code 1860
    (in short the IPC). It appears that on the same day, an FIR was lodged by
    Apuj Kumar alleging commission of offences punishable under Sections
    3411323 read with Section 34 IPC against the informant's brother Suresh
    Viswakarma and Chhotey Lal Pandit. The respondent No. 2 filed an
    application for protection in terms of Section 438 of the Code before the
C   Patna High Court and the same was numbered as Criminal Misc. 14464 of
    2003. By the impugned Order dated 4.7.2003 the protection was granted,
    inter-a/ia, on the following terms:

             "Considering all the fact and circumstances of the case the prayer
             for anticipatory bail is allowed. In the event of arrest/surrender
D
             Petitioner Anuj Kumar shall be enlarged on bail on furnishing bail
             bond of Rs. 10,000 with two sureties of the like amount each to the
             satisfaction of the ChiefJudicial Magistrate Nawadah in connection
             with Sirdala P.S. Case No. 15/2002; subject to the condition laid
             down under Section 438(2) Cr.P.C."
E
         In support of the present appeal, it has been contended that the blanket
    protection given is contrary to the scheme of the Code and the legislative
    intent. The protection if any can be given for a limited period in order to
    enable the a~cused to apply for bail in terms of Section 439 of the Code
F   before the appropriate Court. The ~pplicant has to be in custody for moving
    such application.

          Per contra, learned counsel for respondent No. 2 submitted that in view
    of what has been stated in K. L. Verma v. State and Another, ( 1996) 7 SCALE
    20, protection given by the High Court is clearly in order. It was submitted
G   that for the purpose of making an application in terms of Section 439 of the
    Code, when the same is pursuant to an order passed on application under
    Section 438 of the Code, it is not necessary that the applicant should be in
    custody.

H         Sections 438 and 439 operate in different fields. Section 439 of the
                SUNITA DEVI v. STATE [PASAYAT, J.]                          713

·Code reads as follows :                                                            A

         "439. (l) A High Court or Court of session may direct -

         (a)  that any person accused of an offence and in custody be
         released on bail, and ifthe offence is of the nature specified in sub-     B
         section (3) of Section 437, may impose any condition which it
         considers necessary for the purposes mentioned in that sub-section;

         (b) that any condition imposed by the Magistrate when releasing
         any person on bail be set aside or modified."
                                                                                    c
                                                    (underlined for emphasis)

      It is clear from a bare reading of the provisions that for making an
application in terms of Section 439 of the Code a person has to be in custody.
Section 438 of the Code deals with "Direction for grant of bail to person           D
apprehending arrest". In Bal Chand Jain v. State ofMP., [ 1976] 4 SCC 572,
it was observed that the expression "anticipatory bail" is really a misnomer
because what Section 438 contemplates is not an anticipatory bail, but
merely an order directing the release of an accused on bail on the event of
his arrest. It is, therefore, manifest that there is no question of bail unless
a person is arrested in connection with a non-bailable offence by the police.       E·
The distinction between an order in terms of Section 438 and that in terms
of Section 439 is that the latter is passed after arrest whereas former is passed
in anticipation of arrest and becomes effective at the very moment of arrest.
(See Gur Baksh Singh v. State of Punjab, [1980] 2 SCC 565).
                                                                                    F
      In Salauddin Abdulsamad Shaikh v. State ofMaharashtra, AIR ( 1996)
 SC l 042 it was observed as follows :

         "Anticipatory b:>il is granted in anticipation ofarrest in non-bailable
         cases, but that does not mean that the regular court, which is to try
         the offender, is sought to be bypassed and that is the reason why          G
         the High Court very rightly fixed the outer date for the continuance
         of the bail and on the date of its expiry directed the petitioner to
         move the regular court for bail. That is the correct procedure to
         follow because it must be realised that when the Court of Sessions
         or the High Court is granting anticipatory bail, it is granted at a        H
    714                   SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A            stage when the investigation is incomplete and, therefore, it is not
             informed about the nature of evidence against the alleged offender.
             It is, therefore, necessary that such anticipatory bail orders should
             be of a limited duration only and ordinarily on the expiry of that
             duration or extended duration the court granting anticipatory bail
B            should leave it to the regular court to deal with the matter on an
             appreciation of evidence placed before it after the investigation has
             made progress or the charge-sheet is submitted".

                                                             (Emphasis supplied)

C         In K.L. Verma's case (supra) this Court observed as follows :

                   "This Court further observed that anticipatory bail is granted
             in anticipation of arrest in non-bailable cases, but that does not
             mean that .the regular court, which is to try the offender, is sought
D            to be bypassed. It was, therefore, pointed out that it was necessary
             that such anticipatory bail orders should be of a limited duration
             only and ordinarily on the expiry of that duration or extended
             duration the court granting anticipatory bail should leave it to the
             regular court to deal with the matter on an appreciation of evidence
             placed before it after t~e investigation has made progress or the
E            charge-sheet is submitted. By this, what the Court desired to convey
             was that an order of anticipatory bail dol!s not ensure till the end
             of trial but it must be of limited duration as the regular court cannot
             be bypassed. The limited duration must be determined having
             regard to the facts of the cases and the need to give the accused
F            sufficient time to move the regular court for bail and to give the
             regular court sufficient time to determine the bail application. In
             other words, till the bail application is disposed of one way or the
             other the court may allow the accused to remain on anticipatory
             bail. To put it differently, anticipatory bail may be granted for a
             duration which may extend to the date on which the bail application
G            is disposed of or even a few days thereafter to enable the accused
             persons to move the higher court, if they so desire. "

                                                              (Emphasis supplied)

H         The reference to this Court's observation as quoted above was to
                SUNITA DEVI v. STATE [PASAYAT, J.]                         715

Sa/auddin 's case (supra).                                                         A

     The grey area according to us is the following part of the judgment
in KL. Verma 's case (supra) "or even a few days thereafter to enable the
accused persons to move the Higher Court, if they so desire".
                                                                                   B
     Obviously, the requirement of section 439 of the Code is not wiped
out by the above observations. Section 439 comes into operation only when
a person is "in custody". In KL. Verma's case (supra) reference was made
to Salauddin 's case (supra). In the said case there was no such indication
as given in KL. Verma 's case (supra), that a few days can be granted to the
accused to move the higher Court if they so desire. the statutory requirement
                                                                                   c
of Section 439 of the Code cannot be said to have been rendered totally
inoperative by the said observation.

      In view of the clear language of Section 439 and in view of the decision
of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote              D
and Ors., AIR (1980) SC 785, there cannot be any doubt that unless a person
is in custody, an application for bail under Section 439 of the Code would
not be maintainable. The question when a person can be said to be in custody
within the meaning of Section 439 of the Code came up for consideration
before this Court in the aforesaid decision.
                                                                                   E
      The crucial question is when a person is in custody, within the meaning
of Section 439 of the Code? When he is in duress either because he is held
by the investigating agency or other police or allied authority or is under
the control of the court having been remanded by judicial order, or having
offered himself to the court's jurisdiction and submitted to its order by          F
physical presence. No lexical dexterity nor precedential profusion is needed
to come to the realistic conclusion that he who is under the control of the
court or is in the physical hold to an officer with coercive power is in custody
for the purpose of Section 439. The word is of elastic semantics but its core
meaning is that the law has taken control of the person. The equivocatory          G
quibblings and hide-and-seek niceties sometimes heard in court that the
police have taken a man into informal custody but not arrested him, have
determined him for interrogation but not taken him into formal custody
and other like terminological dubieties are unfair evasions of the
straightforwardness of the law.
                                                                                   H
    716                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A        Since the expression "custody" though used in various provisions of·
    the Code, including Section 439, has not been defined in the Code, it has
    to be understood in setting in which it is-used and the provisions contained
    in Section 43 7 which relates to jurisdiction of the Magistrate to release an
    accused on bail under certain circumstances which can be characterized as
B   "in custody" in a generic sense. The expression "custody" as used in Section
    439, must be taken to be a compendious expression referring to the events
    on the happening of which Magistrate can entertain a bail petition of an
    accused. Section 437 envisages, inter alia, that the Magistrate; may release
    an accused on bail, if such accused appears before the Magistrate. There
    cannot be any doubt that such appearance before the Magistrate must be
c   physical appearance and the consequential surrender to the jurisdiction of
    the Court of the Magistrate.

         In Black's Law Dictionary by Henry Campbell Black, M.A.
    (Sixth Edn.), the expression "custody" has been explained in the following
D   manner:

                  " ........ The term is very elastic and may mean actual
            imprisonment or physical detention ... within statute requiring that
            petitioner be 'in custody' to be entitled to federal habeas corpus
            relief does not necessarily man actual physical detention in jail or ·
E           prison but rather is synonymous with restraint of liberty .....
            Accordingly, persons on probation or parole or released on bail or
            on own recognizance have been held to be 'in custody' for purposes
            of habeas corpus proceeding."

F        It is to be noted that in KL. Verma's case (supra) the Court
    only indicated that time may be extended to "move" the higher court.
    In Black's Law Dictionary the said expression has been explained as
    follows :

            "Move: to make an application to a Court for a rule or order, or
G           to take action in any matter. The term comprehends all things
            necessary to be done by a litigant to obtain an order of the Court
            directing the relief sought."

        In Salauddin 's case (supra) also this Comt observed that the regular
H   Court has to be moved for bail. Obviously, an application under Section 439
                SUNITA DEVI v. STATE [PASAYAT, J.]                     717

·of the Code must be in a manner in accordance with la and accused seeking     A·
 reJUedy under Section 439 must ensure that it would be lawful for the Court
 to deal with the application. Unless the applicant is in custody his making
 application only under Section 439 of the Code will not confer jurisdiction
 on the Court to which the application is made. The view regarding extension
 of time to "move" the higher Court as culled out from the decision in K.L.    B
 Verma 's case (supra) shall have to be treated as having been rendered per
 incuriam, as no reference was made to the prescription in Section 439
 requiring the accused to be in custody. In State through S.P. New Delhi v.
 Ratan Lal Arora, [2004] 4 SCC 590 it was held that where in a case the
 decision has been rendered without reference to statutory bars, the same
 cannot have any precedent value and shall have to be treated as having been   C
 rendered per incuriam. The present case stands at par, any precedent value
 and shall have to be treated as having been rendered per incuriam. The
  present case stands at par, if not, on a better footing. The provisions of
  Section 439 do not appear to have been taken note of.
                                                                               D
      "lncuria" literally means "carelessness". In practice per incuriam is
taken to mean per ignoratium. English Courts have developed this principle
in relaxation of the rule of stare decisis. the "quotable in law", as held in
Young v. Bristol Aeroplane Co. Ltd., (1944] 2 All E.R. 293, is avoided and
ignored if it is rendered, "in ignoratium of a statute or other binding .E
authority." Same has been accepted, approved and adopted by this Court
while interpreting Article 141 of the Constitution of India, 1950 (in short
the 'Constitution') which embodies the doctrine of precedents as a matter
of law. The above position was highlighted in State of U.P. and Another
v. Synthetics and Chemicals Ltd. and Another, [1991] 4 SCC 139. To
perpetuate an error is no heroism. To rectify it is the compulsion of the F
judicial conscience.

     For making an application under Section 439 the fundamental
requirement is that the accused should be in custody. As observed in
Salauddin 's case (supra) the protection is terms of Section 438 is for a
limited duration during which the regular Court has to be moved for bail.      G
Obviously such bail is bail in terms of Section 439 of the Code, mandating
the applicant to be in custody. Otherwise, the distinction between orders
under Sections 438 and 439 shall be rendered meaningless and redundant.

     If the protective umbrella of Section 438 is extended beyond what was     H
    718                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   laid down in Salauddin 's case (supra) the result would be clear bypassing
    of what is mandated in Section 439 regarding custody. In other words, till
    the applicant avails remedies upto higher Courts, the requirements of Section
    439 become dead letter. No part of a statute can be rendered redundant in
    that manner.
B         These aspects were recently highlighted in Nirmal Jeet Kaur v. The
    State ofMadhya Pradesh and Arn., JT (2004) 7 SC 161. Therefore the order
    of the High Court granting unconditional protection is clearly untenable and
    is set aside. However the petitioner is granted a month's time from today
    to apply for regular bail after surrendering to custody before the concerned
C   Court which shall deal with the application in accordance with law. We
    express no opinion about the merits of the case.

         Respondent no. 2 would surrender to custody as required in law so that
    his application under Section 439 of the Code can be taken for disposal.

D         Before saying omega, a few factors need to be noted.

          From the petition filed in this Court and the counter affidavit filed by
    Respondent no. 2 some baffling features are noticed. Both the appellant and
    respondent no. 2 have referred to the supervision notes of the supervisory
E   police officers. When asked as to how they could know about contends of
    supervision notes, evasive replies were given. Many instances have come
    in light when reference to the supervision notes have been made by the
    accused persons while seeking bail and also during trial.

         Sections 207 and 208 of the Code deal with documents which are
F   commonly known as police papers, which are to be supplied to the accused.
    The said sections read as follows :

                  "Section 207 - Supply to the accused of copy of police
             report and other documents : In any case where the proceedings
             has been instituted on a police report, the Magistrate shall without
G            delay furnish to the accused, free of cost, a copy of each of the
             following :-

                  (i)    the police report;
                                                                                     .
                  (ii)  the    first   information    report   recorded    under
H            Section 154;
       SUNITA DEVI v. STATE [PASAYAT, J.]                         719

     (iii) the statements recorded under sub-section (3) of Section       A
161 of all persons whom the prosecution proposes to examine as
its witnesses, excluding therefrom any part in regard to which a
request for such exclusion has been made by the police officer
under sub-section (6) of section 173;
                                                                          B
     (iv) the confessions and statements, if any, recorded under
Section 164;

     (v)   any other document or relevant extract thereof forwarded
to the Magistrate with the police report under sub-section (5) of         C
Section 173 :

     Provided that the Magistrate may, after perusing any such part
of a statement as is referred to in clause (iii) and considering the
reasons given by the police officer for the request, direct that a copy
of that part of the statement or of such portion thereof as the           D
Magistrate thinks proper, shall be furnished to the accused :

     Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) is voluminous, he shall, instead
of furnishing the accused with a copy thereof, direct that he will        E
only be allowed toinspect it either personally or though pleader in
Court.

Section 208 - Supply of copies of statements and documents to
accused in other cases triable by Court of Session - Where, in a
case instituted otherwise than on a police report, it appears to the      F
Magistrate issuing process under Section 204 that the offence is
triable exclusively by the Court of Section, the Magistrate shall
without delay furnish to the accused, free of cost, a copy of each
of the following : -
                                                                          G
     (i)    the statements recorded under Section 200 or Section
202, or all persons examined by the Magistrate;

     (ii)  the statements and confessions, if any, recorded under
Section 161 Section 164;                                                  H
    720                    SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A                  (iii) any documents produced before the Magistrate on which
              the prosecution proposes to rely :

                    ·Provided that if the Magistrate is satisfied that any such
             · document is voluminous, he shall, instead of furnishing the. accused
B              with a copy thereof, direct that he will only be allowed to inspect
               it either pc;:rsonally or through pleader in Court."

          The supervision notes can in no count be called. They are not a part
    of the papers which are supplied to the accused. Moreover, ~he informant
    is not entitled to the copy of the supervision notes. The supervision notes
C   are recorded by the supervising officer. The documents in terms of Sections
    207 and 208 are supplied to make the accused aware of the materials which
    are sought to be utilized against him. The object is to enable the accused
    to defend hi self properly. The idea behind the supply of copies is to put him
    on notice of what he had to meet at the trial. The effect of non-supply of
D   copies has been considered by this Court in Noor Khan v. State ofRajasthan,
    AIR ( 1964) SC 286 and Shakila Abdul Gafar Khan (Smt.) v. Vas ant Raghunath
    Dhoble and Anr., [2003] 7 SCC 749. It was held that non-supply is not
    necessarily prejudicial to the accused. The Court has to give a definite
    finding about the prejudice or otherwise. The supervision notes cannot be
    utilized by the prosecution as a piece of material or evidence against the
E   accused. At the same time the accused cannot make any reference to them
    for any purpose. If any reference is made before any court to the supervision
    notes, as has noted above they are not to be taken note of by the concerned
    court. As many instances have eome to light when the parties, as in the
    present case, make reference to the supervision notes, the inevitable conclusion
F   is that they have unauthorized access to the official records. We, therefore,
    direct the ChiefSecretary of each State and Union Territory and the concerned
    Director General of Police to ensure that the supervision notes are not made
    available to any person and to ensure that confidentiality of the supervision
    notes is protected. If it comes to light that any official is involved in enabling
    any person to get the same appropriate action should be taken against such
G   official. Due care and caution should be taken to see that while supplying
    police papers supervision notes are not given.

           The appeal is allowed to the aforesaid extent.

H   V.S.                                                            Appeal allowed.