Is statement recorded under Section 164 CrPC public document; If yes, who can access it? Kerala High Court answers

The Kerala High Court on Wednesday held that a statement recorded under Section 164 of the Code of Criminal Procedure (CrPC), 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 [Saritha S Nair v Union of India & Anr.]..Justice Kauser Edappagath held so while dismissing a plea moved by the prime accused in the solar panel scam, Saritha S Nair, seeking a copy of the statement given under section 164 CrPC by prime accused in the gold smuggling case, Swapna Suresh. "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 said in its order..However, the Court also held that for a stranger to inspect these documents, the final report in the case has to be filed, cognisance must be taken, and he/she must show that he/she has a genuine interest in the document. "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.....It can safely be concluded that 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 order stated..The petition before the Court which threw up these questions was moved by Saritha Nair, the prime accused in the solar panel scam which involved swindling over ₹70 lakh from several influential persons under the guise of making them business partners or as advance payments for installing solar panels. Nair approached the Court seeking directions to provide her with copies of the Section 164 statement given by Swapna Suresh, as she was a witness in the gold-smuggling case. Nair claimed that Suresh may have made allegations against her and denying her access to the 164 statement would cause irreparable injury and hardship to her..Adv BA Aloor, counsel for the petitioner, submitted that the statement of the accused recorded under Section 164 of CrPC is a public document and, therefore, the petitioner is entitled to get a copy.Central Government Counsel Jaishankar V Nair, appearing for the Enforcement Directorate (ED) , submitted that the further investigation in the case is in progress and as such, the Section 164 statement of Suresh must be kept confidential till the supplementary complaint is filed. He further submitted that the petitioner being a stranger to the proceedings is not entitled to the copy at all..Considering the legal questions involved, the Court had appointed advocate KK Dheerendrakrishnan as amicus curiae. He submitted that a 164 statement becomes a public document only after cognizance is taken by the concerned court and that it cannot be handed over to anyone, including the accused, before the final report is filed..The Court concurred with the amicus on these aspects and further held that the statement recorded by a Magistrate is public document since it is a record of the acts of the Court. It also held that the right to inspect public documents is a common law right and is also recognised by the Indian Evidence Act provided the concerned person can show that he has an interest in it and that inspection of the document is necessary to protect the said interest. .In the instant case, the Court held that Nair was unable to show any real or substantial interest to receive the copy of the statement made by Suresh and, therefore, dismissed the plea..[Read Order]