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Mrs. Bayadabai Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1979CriLJ528
AppellantMrs. Bayadabai
RespondentThe State of Maharashtra
Excerpt:
- - in spite of this it appears that when a grievance was made on 31-3-1978 as per the application referred to above, the learned magistrate chose to rest satisfied with the so-called record of the police prosecutor showing that 'copies'1 were already furnished. the absence of record coupled with the absence of any entry in the roznama showing that the documents in question were in fact supplied to the accused clearly show that there is much substance in the accused's plea that in fact she was never supplied with the documents. both the conviction as well as the sentence of the accused will have therefore to be set aside and the matter will have to be remanded to the trial court for giving the accused an opportunity for her proper defence......learned metropolitan magistrate, 17th court, mazagaom, bombay. what happened in the court of the learned magistrate is relevant for the purposes of decision in this application.2. the record and the roznama of the learned magistrate show that on 13-1-1978 the accused was present. the copies (sic) were not supplied to the accused. summons was issued to the complainant and the case was adjourned to 9-2-1978. on 9-2-1978, the accused was present. again summons was issued to the complainant which was made returnable on 23-2-1978. on 23-2-1978, charge was framed under section 325 i. p. c. and explained to the accused. the accused pleaded not guilty. summons were issued to the prosecution witnesses returnable on 21-3-1978. on 21-3-1978, two witnesses were examined viz. deoram and his mother.....
Judgment:
ORDER

Sawant, J.

1. This is a revision application filed by the petitioner-accused against her conviction and sentence for the offence under Section 325 I. P. C. Briefly stated the facts leading to the prosecution of the accused are as follows : One Deoram aged about 10 years and his mother Laxmibai reside in the neighbourhood of the accused. On 17-3-1977 at about 7-00 p. m., Deoram's sister Tarabai had been to the common water tap when she was prevented from taking water by the members of the locality, Thereafter, Deoram's mother Laxmibai and Deoram went to the water tap when Laxmibai was caught by one lady by name 'Masterin'. Deoram's sister Tarabai tried to separate them. At that time Deoram also tried to separate them. It is alleged that it is at that time that the accused gave a fist blow on the face of Deoram on account of which blow, his one tooth from the upper jaw was broken and the same came out of its socket. The next day i. e. on 18-3-1977 Laxmibai took her son Deoram to the hospital, where he was treated and allowed to go. Deoram then reported the matter to Kalachowki Police Station at about 7-00 p. m. on the same day i. e. 18-3-1977. On account of this First Information Report, an offence was registered against the accused under sec-ton 325 of the Indian Penal Code and the accused was arrested on 19-3-1977 and subsequently released on bail. After the investigation, the Police filed a charge-sheet on 2-9-1977 for the said offence before the learned Metropolitan Magistrate, 17th Court, Mazagaom, Bombay. What happened in the Court of the learned Magistrate is relevant for the purposes of decision in this application.

2. The record and the roznama of the learned Magistrate show that on 13-1-1978 the accused was present. The copies (Sic) were not supplied to the accused. Summons was issued to the complainant and the case was adjourned to 9-2-1978. On 9-2-1978, the accused was present. Again summons was issued to the complainant which was made returnable on 23-2-1978. On 23-2-1978, charge was framed under Section 325 I. P. C. and explained to the accused. The accused pleaded not guilty. Summons were issued to the prosecution witnesses returnable on 21-3-1978. On 21-3-1978, two witnesses were examined viz. Deoram and his mother Laxmibai. The F.I.R. and the medical certificate were exhibited. One of the witnesses Deoram was cross-examined by the accused. The other witness Laxmibai was not cross-examined. The prosecution closed its case and the statement of the accused was recorded. Arguments were heard and the case was adjourned for judgment to 31-3-1978. On 31-3-1978, Mr. G. B. Tirodkar, Advocate filed his appearance for the accused and made an application supported by the affidavit of the accused. In the application it was pointed out that the accused was not supplied with copies of the charge-sheet, the statements of witnesses, medical certificate, etc., i.e. the documents enumerated in Section 207 of the Cr.P.C. 1973 (hereinafter referred to as the Code). It was therefore pleaded that no opportunity was given to the accused to meet the prosecution case. Hence it was prayed that the Court should, under the provisions of Section 311 of the Code, after supplying the accused with the relevant documents, recall the witnesses for cross-examination, and also issue summons to the medical officer, who issued the certificate in respect of the injuries sustained by the said Deoram, for cross-examination in the Court. This application was rejected by the learned Magistrate by endorsing reasons on the very same application. The said endorsement reads as follows.

Time was already given to accused to engage the lawyer. Even then she did not care to engage lawyer. P. P.'s record shows that copies are already fur-nised. There are no grounds for (sic) recall witnesses.

3. It appears that thereafter, the learned Magistrate proceeded to pronounce his judgment by which he convicted the accused of the offence under Section 325 I. P. C. and sentenced her to suffer S. I. till the rising of the Court and to pay a fine of Rs. 50/- and in default to suffer R. I. for one week. It is this order which is challenged in this revision application.

4. Mr. Tirodkar. learned Counsel appearing for the petitioner, submitted that the procedure followed by the learned Magistrate is patently erroneous and stands vitiated in law inasmuch as the mandatory provisions of Section 207 of the Code have not been complied with by the learned Magistrate and the accused has been seriously prejudiced in her defence. I find great force in this submission. It is not disputed by Mr. Barday, the learned Counsel appearing for the State, that the Roznama of the Court does not show that the documents mentioned in Section 207 of the Code were supplied to the accused at any time either before or after the framing of the charge. On the other hand the only mention which has been made with regard to the documents in the roznama is as per the entry dated 13-1-1978 which states that the copies were not supplied to the accused. There is no other reference to the documents in the roznama. In spite of this it appears that when a grievance was made on 31-3-1978 as per the application referred to above, the learned Magistrate chose to rest satisfied with the so-called record of the Police Prosecutor showing that 'copies'1 were already furnished. This matter was adjourned last time to enable the State to produce the said record before this Court. Mr. Barday, the learned Counsel appearing for the State fairly stated that in spite of telephonic calls and a written letter, no record has been received by him. The case had therefore to proceed in the absence of such record and on the assumption that no such copies were supplied to the accused as mentioned in the learned Magistrate's endorsement on the application of the accused. The absence of record coupled with the absence of any entry in the roznama showing that the documents in question were in fact supplied to the accused clearly show that there is much substance in the accused's plea that in fact she was never supplied with the documents. Mr. Barday was also unable to satisfy me otherwise that the accused was supplied with the documents in question. The result is that it will have to be held that in the absence of such documents, the accused was seriously prejudiced in her defence and hence the trial of the accused was vitiated in law. Both the conviction as well as the sentence of the accused will have therefore to be set aside and the matter will have to be remanded to the trial Court for giving the accused an opportunity for her proper defence. The revision application is accordingly allowed and the rule is made absolute. The conviction and sentence of the accused is set aside. Fine if any paid by the accused to be refunded to her. The trial Court is directed to furnish the documents as per Section 207 of the Code to the accused and to satisfy itself that such documents are in fact supplied to the accused by making the necessary entry in the Roznama. The trial Court then should give sufficient time to the accused for preparing her defence and recall the witnesses who were already examined. The request of the accused to call for other witnesses including the Medical Officer should also be considered by the trial Court according to law.

5. In view of the facts which have come to light of this Court in the above case, it has become necessary to point out that under Section 207 of the Code. It is the duty of the Magistrate to furnish to the accused without delay free of costs copies of the documents mentioned in the said section. It appears that in spite of the change in the wording of the said section as compared to Section 251A of the old Code, the Courts below have not been following the practice of supplying the documents to the accused themselves, but continue to delegate that function to the Police Prosecutors appearing in the Court. Even under the old Code, as required by para 3 of Chap. Ill of the Criminal Manual issued by this Court, it was obligatory on the Magistrate to make an entry in the roznama showing the action taken by him in regard to the supply of the documents to the accused. Attention of the Courts below is therefore invited to the provisions of Section 207 of the Code and the said in-: instructions contained in the Criminal Manual which requires them to supply the relevant documents themselves and to make an entry in the roznama to the effect that such copies have been supplied by them to the accused. If this precaution is taken which is obligatory on them to take in each and every case, there will be no occasion for the accused to make a grievance to this Court as in the present case. The learned Registrar is directed to circulate the latter portion of this judgment to all the lower Courts for their information and guidance.


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