1. In this case a question of procedure has been raised by Mr. Taleyarkhan, who appears on behalf of the Crown, and it is, whether the prosecution is bound to supply the defence with a copy of the statement of a witness who has not been examined before the committing Magistrate and whom the prosecution propose to examine for the first time in the Sessions Court. The Clerk of the Crown has also requested me to give a considered ruling on the point.
2. I do not think it will be disputed that the prosecution can examine witnesses in the Sessions Court, who were not previously examined before the committing Magistrate. There is nothing in the Criminal Procedure Code which in terms would prevent them from doing so. Apart from the question which I have now to determine, there is one principle which I should like to stress and that is, that when the prosecution proposes to examine new witnesses, the prosecuting counsel should always mention in his opening address the names of the new witnesses and the purpose for which they are being called, and the Court should always insist upon this being done.
3. The practice in sessions cases is that the committing Magistrate sends four copies of the depositions of witnesses examined before him in the course of the preliminary inquiry. Of these, one is reserved for the Judge; one is sent to the Public Prosecutor; one is sent to the Translator's Department for the use of the Court Interpreters; and the fourth is reserved for the accused, if applied for. When the accused person applies for a copy, it is given to him on his paying the prescribed charge; but the Clerk of the Crown has a discretion in the matter, and in proper cases, as, for instance, where the accused is poor, he gives a copy free of any charge. Similarly, he also supplies a free copy to the counsel who is engaged by the Crown to defend an accused person on a charge of murder.
4. Under Section 219 of the Criminal Procedure Code the committing Magistrate has the power to examine any supplementary witnesses after the commital order has been made, and when such witnesses have been examined, the section provides that where the Magistrate is not a Presidency Magistrate,, a copy of the evidence of such witnesses shall be given to the accused free of cost. That some importance is attached to this is clear from the fact. that under Section 35 of the Court-fees Act (VII of 1870) such copies are-exempt from Court-fees. Why the legislature excluded the Presidency Magistrates from the operation of this rule it is difficult to see. Under Section 548 of the Criminal Procedure Code an accused person is-entitled to any part of tHe record in a criminal Court provided he pays for the same, unless the Court for some special reason thinks it fit to furnish the same free of cost, and where that is the case, such copies are also-exempt from Court-fees under Section 35 of the Court Fees Act.
5. The position then is, that under the provisions of the Criminal Procedure Code and our practice, an accused person before he is called upon to stand his trial in the Sessions Court has always the opportunity of obtaining copies of depositions of witnesses examined on behalf of the prosecution and of knowing exactly the case which is proposed to be made out against him. That obviously is not possible when new witnesses are being examined in the Court of Session for the first time.
6. Unfortunately, there has been no ruling on the question now raised. It was, however, to my knowledge, specifically raised before Mr. Justice-Marten, as he then was, and that eminent and learned Judge held that, the defence was entitled to free copies of the statements of witnesses proposed to be examined for the first time in the Court of Session. I am told, since then the practice has not been uniform. But my investigations of the records of the office of the Clerk of the Crown have not resulted in establishing any particular case of departure from the old practice.
7. Recently, however, about a year ago, the question came up before Mr. Justice Shingne, and I am told by Mr. Taleyarkhan that the learned Judge held that the defence was not entitled to such copies. The learned. Judge, however, gave no judgment. I am also told by Mr. Taleyarkhan that this ruling was followed by two other Judges, but this on enquiry from the office of the Clerk of the Crown I find to be absolutely incorrect-Mr. Taleyarkhan further stated that Mr. Justice Shingne thought that as the statements of the new witnesses were taken by the police, copies of such statements could not be given under the provisions of Section 63 of the-City of Bombay Police Act, 1902, which corresponds to Section 162 of the Criminal Procedure Code. Mr. Taleyarkhan also referred to a passage in the judgment of the well known Meerut Conspiracy case decided, by the Allahabad High Court, viz., Emperor v. Jhabwala A.I.R.(1933) All. 1040.
8. Now, it is true that the new witnesses whom the prosecution may examine may fall into two groups : some, whose statements have been recorded by the police in the course of investigation but who were not-examined before the committing Magistrate; and others, whose statements-may have been taken by the police after the investigation was at an end. As regards the latter, Section 63 would raise no bar, because it is clear that when an accused person is put on his trial before a Magistrate, the investigation of the police comes to an end. On enquiry, however, from the office of the Clerk of the Crown, I find that Mr. Justice Shingne thought that there would be no objection to give copies of the statements to the defence after eliminating from them the portion showing that the statements were taken before the police, and the learned Judge was prepared to order copies being supplied to the defence if the words. 'Before Me.&c;' over the signature of the police-officer were removed from such statements.
9. As to the Meerut Conspiracy case, the point which has been raised before me was not dealt with, and, as far as I can see, not even raised in that case. The learned Judges say as follows (p. 1048):
We think that the prosecution can place before the court all the evidence on which they wish to rely, but after evidence has been taken which is sufficient to make out a Prima facie case, it is not necessary to call further evidence. Similarly if there is a mass of evidence tending to prove the same point, it is not necessary that all such evidence should be produced in the Magistrate's court before the charge is framed. Notice of all evidence to be produced in the sessions court ought, however, to be given to the accused at the trial, otherwise he would be prejudiced.
10. Now, if by this the learned Judges meant that all that the prosecutor need do is to give a notice to the accused that he proposes to call new witnesses without stating what the new witnesses are going to prove or the purpose for which they are called, then, with all respect to them, I do not agree, because in my opinion merely mentioning the fact that new witnesses are proposed to be called is of no practical use to the accused. It is difficult to see how an accused in those circumstances would be expected to know who the witnesses are, what they are' going to say, and how he is going to meet the case which may be established by such new evidence. I do not, however, think that the learned Judges of the.Allahabad High Court meant this.
11. The law and procedure in England is clear, and it is stated by Halsbury in Vol. IX, 2nd Edn., para. 233, in the terms following:
The prosecution may call witnesses who were not examined before the committing; justices and whose names are not on the back of the indictment. Notice of intention to call such witnesses should be given to the defendant, and copies of their proofs should be supplied to the defendant and to the Court.
12. To the same effect is the rule laid down by Archbold in his Criminal Pleading, Evidence & Practice, 28th Edn., at p. 505:
Witnesses may be called for the Crown whose depositions were not taken before the committing magistrate, and whose names are not on the back of the indictment, Rule v. Ward, 2 C. & K. 759. But notice of intention to call such additional witnesses with a copy of the evidence which it is proposed that they should give, ought to be given to the prisoner and sent to the Court.
13. Then at p. 506 the learned author in discussing the cases on this point proceeded to observe as follows:
In Rule v. Flannagan, 15 Cox 403, Butt, J., offered the defence an adjournment on a trial of murder to give time to rebut new evidence, of which notice had not been given, and in Rule v., Cent. Crim. Ct., Oct, 1893, Charles, J., refused to admit new evidence unless the prosecution could prove service of the proof on the defence. In Re v. Hawkins, 1896 Q.B.D, Russell, C.J., also required proof of notice of new evidence.
14. As far as my experience-now extending over a quarter of a century-goes, the practice has always been to provide free copies for the use of the defence in a case where new witnesses are examined.
15. As far as I can see, there is nothing in the provisions of the Criminal Procedure Code which is inconsistent with the English practice, and our old practice, which is based upon the spirit and the fundamental principle of the system of criminal jurisprudence. It has been our boast that our criminal trials are conducted in the same manner as in England and that we follow the same system. If that boast is to be justified, then, in my opinion, nothing should be done by the prosecution which would in any way prejudice the defence, embarrass the accused, or take him by surprise.
16. Accordingly, I direct that copies of the proofs only, or at least a summary of the evidence, which.a new witness is expected to give, should be furnished by the prosecution within a reasonable time to the accused free of cost before a new witness is examined.
17. I would also like to refer to another point of practice. Formerly, when it was proposed to examine new witnesses in the Sessions Court, the Public Prosecutor used to send their statements to the Clerk of the Crown for being supplied to the presiding Judge. In recent years this practice has been changed and the Public Prosecutor now hands over copies of the statements of new witnesses to the Judge in Court, and that sometimes when the case is called on for hearing. In ray opinion it will tend to speedier disposal of cases if the old practice is restored, and it is to be hoped that copies of statements of new witnesses would be sent to the Clerk of the Crewn so as to enable that officer to send the same to the Judge along with other papers in the case.