1. In this case the prosecution are calling one Ismail Amin Golandas, one of the panchas, to prove a panchnama prepared on August 12, 1941. This particular panch was not examined either before the Committing Magistrate or before Mr. Justice Blackwell in the earlier trial.
2. Mr. Pardivala on behalf of the accused takes an objection that he is handicapped in his defense by reason of the fact that the statement of the evidence that this witness is going to give has not been furnished to him by the prosecution.
3. My attention has been drawn to the considerable inconvenience to which panchas are being put. The prosecution has drawn my attention to the fact that, as it is, it is difficult to get members of the public to come forward to act as panchas. In view of the recent decision of the Court of Appeal [Emperor v. Mohanlal Bababhai(3)], panchnamas have now to be proved not by the investigating police-officer but by one or other of the panchas who have signed the panchnama. This entails the panch witnesses having to remain in Court while the trial of the accused in which they have to give evidence is going on till they are called. If, besides this, the prosecution have to furnish statements of these witnesses to the defense, it would mean that these panchas would have to be called to the office of the Public Prosecutor and their statements taken in order to supply copies to the defense.
4. It has been an old, invariable, and, I think, a salutary practice in the Sessions that whenever the prosecution want to call additional witnesses they should supply to the defense statements of what they are going to depose. It is the duty of the prosecution to give every facility to the accused, and I should be most reluctant in any way to depart from so salutary a practice which has existed for so many years in the past. This practice was given judicial recognition by Mr. Justice Rangnekar in Emperor V. Dhondiba(1). But in this particular case, as far as the evidence of panchas is concerned, there is nothing in the evidence which they are likely to give which the accused does not know. A copy of the panchnama is furnished to the accused. It contains the names of the panchas, and all that the panchas come to depose to in this Court is what is recorded already in the panchnama to which they have put their signatures. It would be entirely unnecessary and superfluous to furnish statements of evidence of these witnesses to the defense. It is impossible for me to understand how the accused or his defense could be in the slightest degree handicapped by a statement not being furnished to his counsel. There is no element of surprise in the evidence that these panchas are going to give, and the accused knows perfectly well what to expect when the panchnama is sought to be proved and the panchas are called to give evidence.
5. I, therefore, see nothing in the objection raised by Mr. Pardivala, and I rule that, as far as panch witnesses are concerned, it is not necessary for the prosecution to supply their statements to the defense provided copies of panchnamas have already been furnished.