1. This is an application by original accused Nos. 2, 3 and 4 for setting aside the order dated November 26, 1980 passed by the learned Addl. Sessions Judge, directing that the case to proceed on secondary evidence. During the course of arguments an amendment was sought which was granted and by the amendment a prayer has been made that the proceedings in Sessions Case No-. 73 of 1977 should be quashed.
2. This rule involves a question as to whether noncompliance with the provisions of Section 173(5)(a) and (b) and Section 207 of the Criminal Procedure Code affects the legality of the proceedings.
3. The applicants are original accused Nos. 2, 3 and 4. Accused Nos. 1, 5 and 6 have been joined in this application as respondents. The fourth respondent is the State of Maharashtra. The applicants and respondents 1, 2 and 3 were charge sheeted before the Metropolitan Magistrate, 21st Court, Bandra, for having committed offences under Sections 147, 148, 324, 395, 367 and 302 read with Sections 149 and 34 of the Indian Penal Code. The case was committed to Sessions Court, Bombay, and the case is numbered as Sessions Case No. 73 of 1977. On November 26, 1979, a charge was framed against the accused by the learned Addl. Sessions Judge.
4. It appears that the case was committed to the Court of Session by an order dated March 9, 1977. On May 23, 1978 an application was made by the learned Advocate for the accused before the learned Addl. Sessions Judge for depositing original police papers pertaining to the Sessions case in that Court. Thereafter on May 26, 1978 police inspector Desai handed over all the documents to the court sheristedar attached to the Court of the learned Addl. Sessions Judge Shri Kirtikar. It appears that after February 3, 1979, those papers were not traceable and inspite of search being taken the police papers are not yet traceable. The applicants filed Criminal Application No. 599 of 1980 in this Court on the ground that in the absence of original documents, the trial cannot have any effective hearing and, in fact, the trial cannot go on and, therefore, it would practically amount to vitiating the trial. It was contended that the statutory requirement as envisaged by Section 173(5) of the Criminal Procedure Code that all the documents should be forwarded to the court and in the absence of the original documents, there could hardly be any scope for hearing of the Sessions case. On that application two points were raised viz. (1) Whether the original police papers, are genuinely missing and not available or whether it is only a camouflage adopted by the police to serve their purpose? and (2) What is the effect thereof and whether the trial can proceed on the basis of secondary evidence? And the matter was remanded to the learned Addl. Sessions Judge for proceeding in the matter as directed. Accordingly, the learned Addl. Sessions Judge considered the two points and held that the original police papers are genuinely missing and on the second point it was held that the effect of missing of original papers would be that the prosecution cannot lead primary evidence but that the prosecution may be permitted to lead secondary evidence and, accordingly, an order was passed directing that the case to proceed on secondary evidence. Against the said order, the applicants have preferred this application.
5. Shri Jethmalani, the learned Counsel appearing on behalf of the petitioners has contended firstly that the charge should be quashed for the reason that the charge has been framed in this case without the original papers being before the court and hence there were no documents before the court which the court could have read and could have framed the charge as required by Section 277 of the Code, and hence the charge should be quashed. He has secondly contended that the denial to the accused of the benefits of the statements recorded under Section 161 is tantamount to a departure from the mode of trial prescribed by law and in order to arm the accused with a right to call for copies of the previous statements of witnesses made to and recorded by the investigating officer that such a provision in Section 207 has been made. Since copies of the police papers have not been furnished to the accused, the provisions of Section 207 also have been violated and for that reason also, the proceedings should be quashed.
6. Shri Jethmalani has then referred to Section 63 of the Evidence Act and he has contended that leading of secondary evidence would be an idle formality for the reason that there is no evidence. The case does not fall under any of the categories 1 to 5 in Section 63 and for that reason also the applicants-accused should 'not be required to go through the entire gamut of the criminal proceedings of Shri Jethmalani has then contended that there is no' question of re-construction of the records in the present case for the reason that re-construction of the records could only be ordered under the inherent powers of the court and the Sessions Court does not have any inherent powers. He has further submitted that undoubtedly the High Court can direct the Sessions Court to re-construct the record but in this case this Court will not issue such a direction for the reason that there are no records from which the records could be re-constructed. Shri Jethmalani has referred the decision of the High Court at Nagpur in the case of Baliram Marathe v. Emperor A.I.R.  Nag. 1 in support of the proposition that the denial to the accused of the benefit of the statements recorded under Section 161 is tantamount to a departure from the mode of the trial prescribed by law. He has also referred to the decision' of the Privy Council Pulukuri Kottaya v. Emperor A.I.R.  P.C. 67 (1947) 49 Bom. L. R. 508 in this connection and he has submitted that since copies of the police papers have not been made available to the accused persons, important material for cross-examination of the prosecution witnesses have not been made available and hence there is a denial of a very valuable right given to the accused by Section 162 of the Code of Criminal Procedure.
7. Shri Jethmalani has then contended that no person can be put in a position of disadvantage as a result of the action of the court, and in the present case since the original police papers have been misplaced in the Sessions Court, the accused are put to a very great disadvantage and in support of this proposition he has relied upon the decision of the Privy Council in the case of Alexander Rodger, Charles Carnie and Richard James Oilman and The Comptoir D'Escompte De Parts and The Chartered Bank of India, Australia, and China (1871) L R 3 P. C. 465.
8. Shri Barday, the learned Public Prosecutor on the other hand contended that it is true that before the case was committed to Sessions, the accused were not furnished with copies of the police papers but in the Sessions Court, copies of the police papers were furnished to the accused even before the charge was framed and he has submitted that the mere fact that the original statements recorded by the police are not available, would not be sufficient to quash the process. In support of this proposition he has relied upon the decision of the Supreme Court in the case of Noor Khan v. State of Rajasthan : 1964CriLJ167 and in the case of Narayan Rao v. State of Andhra Pradesh : 1957CriLJ1320 .
9. In regard to leading of secondary evidence, Shri Barday has fairly conceded that in the evidence that has been recorded in the Sessions Court on the two points referred to it by Kotval, J. there is no evidence to show as to who cut the stencil for cyclostyling the police statements, but he has submitted that the stage of leading secondary evidence is yet to reach and at the time when the prosecution is required to lead secondary evidence, the prosecution will lead the evidence of the person who cut the stencil for cyclostyling police statements. He has submitted that merely because the prosecution has failed to lead evidence of the person who cut the stencil for cyclostyling police statements it is not sufficient for this Court to quash the process. In the same strain Shri Barday has argued that the documents referred to in Section 227 of the Criminal Procedure Code are undoubtedly original documents, but if the original documents are misplaced and if the charge is framed on copies of the police papers, it would be sufficient compliance with the provisions of Section 227 of the Criminal Procedure Code and for that reason also the proceedings should not be quashed and the trial should be allowed to- proceed.
10. In order to appreciate the rival contentions raised before me, it would be necessary to state the history of Section 173. This section deals with report of the police officers on completion of the investigation. Section 173 Sub-section 4 of the Criminal Procedure Code 1898 was amended by the Criminal Procedure Amendment Act, XXVI of 1955 by adding the following:
(4) After forwarding a 'report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
(5) Notwithstanding anything contained in Sub-section (4), if the police officer is of opinion that any part of any statement recorded under Sub-section (3) of Section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to the Magistrate stating his reasons for excluding such part: Provided that at the commencement of the inquiry or trail, the Magistrate shall, after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused.
The provisions of Sub-section 4 and 5 of Section 173 of the old Code now find place in Section 207 of the new Code and Sub-section 5 of Section 173 has been newly added. It provides:
178(5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation:
(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
11. In Pulukuri Kottaya's case (supra) also there was a failure of the prosecution to supply the defence at the proper time the copies of statements which were made by important prosecution witnesses during the course of preliminary police investigation and in repelling the arguments advanced on behalf of the accused that a breach of a direct and important provision of Code of Criminal Procedure cannot be cured but must lead to the quashing of the conviction, it was held that (at p. 69 para. 7):
When a trial is conducted in a manner different from that prescribed by the Code, as in 28 I A. 257 the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct the irregularity can be cured under Section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code...Their Lordships hold the trial, valid notwithstanding the breach of Section 162.
12. In Narayan Rao v. State of Andhra Pradesh (supra) the question for determination before the Court was whether and if so, how far non-compliance of the provisions of Section 173(4) and 207A of the old Code has affected the legality of the proceedings and the trial and in considering the question whether the omission necessarily renders the entire proceedings and the trial null and void. In considering the further question whether the provisions of Section 173(4) read with Section 207 A (3) are mandatory or directory, their Lordships held that (at p. 41 para. 10):. Those provisions Section 178(4) and Section 207 A(3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought to see that all the documents, necessary to give the accused person all the information for the proper conduct of their defence, are furnished.
Their Lordships were not prepared to hold that those provisions have the result of vitiating the proceedings and subsequent trial. It was held that:
The word 'shall' occurring in both Sections 173 (d) and 207A (3) is not mandatory but only directory, because an omission by a police officer to fully comply with the provisions of 173 should not be allowed to have such far reaching effect as to render the proceedings including the trial before the Court of Sessions, wholly ineffective.
(Emphasis supplied herein indicated in italics-Ed.)
13. Even in cases where it is shown that the omission on the part of the police officer concerned or on the part of the Magistrate before whom the trial proceedings are pending has caused prejudice to the accused, their Lordships have observed that:
The court may reopen the proceedings by insisting upon full compliance with the provisions of the Code.
There Lordships quoted with approval observation of the Privy Council in Pulukuri Kottaya's case (supra).
14. In Sub-section 4 and 5 of Section 173 of the old Code, a duty was cast upon the police officer to furnish to the accused persons copies of the first information report recorded under Section 154 and copies of the statements recorded under Section 161(5) of the old Code, and a duty was cast upon the Magistrate by Sub-section 3 of Section 207A of the old Code to satisfy himself that the documents referred to in Section 173 were furnished to the accused and if he found that the accused has not been furnished with the documents or any of them, he had to cause the same to be so furnished. -Section 207A has been omitted in the new Code. Section 207 however, has now cast a duty upon the Magistrate to supply to the accused copies of the police report and the statements recorded under Section 161(5), confessions recorded under Section 164 and other documents forwarded to the Magistrate along with the police report under Section 173(5). It states:
207: In any case where the proceeding has been instituted on a police report, the Magistrate shall without 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 Section 154;
(iii) the statements recorded under Sub-Article (3) of Section 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;
(iv) the confessions and statements, if any, recorded under Section 154;
(v) any other document or relevant extracts thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering 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 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 only be allowed to inspect it either personally or through pleader in Court.
Sub-s. 4 and 5 of Section 173 of the old Code have been omitted in the new Code and Sub-section 5 at Section 173 of the new Code casts a duty upon the police officer to forward to the Magistrate along with a report all the documents on which the prosecution proposes to rely as also statements of all the persons whom the prosecution proposes to examine as its witnesses. Section 173(5) states:
178(5) when such report is in respect of a case to which a. 170 applies, the police officer shall forward to the Magistrate along with the report-(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine us its witnesses.
15. It is undoubtedly true that a very valuable right has been given to the accused persons to be furnished with copies of statements recorded by the police officer under Section 161 of persons whom the prosecution proposes to call as witness, but as stated by the Supreme Court in Narayan Rao's case (supra), the provisions of Section 173(5) are not mandatory. They are only directory. A breach of those provisions is not fatal to the trial. What is required to be seen is whether the copies of the documents have been furnished to the accused before the trial commenced, even though they might not have been furnished to the accused before the case was committed to Sessions, The mere fact, therefore, that copies of the documents were not furnished to the accused persons by Magistrate as required by Section 207, it cannot by itself lead to a conclusion that it has caused prejudice to the accused. The provision relating to the furnishing of copies of statements recorded in the course of investigation to the accused is undoubtedly very important provision meant to safeguard the interests of the accused. But a breach thereof must be considered in the light of the prejudice that may be caused to the accused. The Supreme Court in the case of Noorkhan v. State of Rajasthan (supra) have overruled the decision, of the Nagpur High Court in Baliram Marathe's case (supra). Their Lordships referred to Narayan Rao's case (supra) and it was observed that Narayan Rao's case related to failure to comply with the provisions of Sections 173 and 207A. In that case the statements of witnesses recorded under Section 161 were supplied to the accused in the court of Session and the irregularity of the proceedings to that extent was mitigated. In Noorkhan's case (supra), the statements recorded under Section 161(5) were never supplied to the accused and it was held that on that account the principle applicable to the statutory right is not different. Finally, it was held in Noorkhan's case that (at p. 294 para. 21):.The provisions of Section 168 provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances. The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under Section 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant. It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction.
In the present case therefore, the mere fact that copies of the statements were not supplied to the accused persons before the case was committed to Sessions by the learned Magistrate as required by Section 207 of the Criminal Procedure Code, would not by itself, be sufficient to quash the proceedings. It is after all a question of prejudice and in the present case it is an admitted fact that the copies of the statements have been furnished to the accused. This case stands on the same footing as Narayan Rao's case (supra) where the notes were destroyed by the police. After all the statements of witnesses under Section 161 of the Criminal Procedure Code are required to be recorded by the police, and the signature of such witnessses are not obtained on those: statements. They stand on the same, footing as the notes recorded by the police officers in Narayan Rao's case (supra). Therefore, it is difficult for me to hold that merely because the original statements are to-day, not available, that prejudice has been caused to the accused.
16. In regard to the F.I.R. recorded under Section 154 of the Code, it is no doubt true that the original F.I.R. is not available, but its copy is available and it is furnished to the accused. It will be for the trial court to decide as to what would be the consequence of the original F.I.R. not being available, and whether secondary evidence could be led on that score, but the fact that the original F.I.R. is not available is not sufficient to quash the proceedings.
17. Coming to the arguments of Shri Jethmalani, that no charge could be framed as Section 227 of the Code provides that the Court has to consider the records of the case and the documents submitted therewith and after hearing submissions of-the accused and the prosecution in that behalf the court is required to frame a charge as provided in Section 228 if the court does not discharge the accused on the ground that there was no sufficient ground for proceeding against the accused. In the present case the charge was framed on November 26, 1978. On that day the original documents were not before the court and it appears that at the time the charge was framed, no grievance was made to the Sessions Court that the charge should not be framed on the ground that the original documents were not available to the court. There is also no grievance made before me that the court did not allow the accused to make any submissions at the time of framing the charge. It is true that the documents, referred to in Section 227 would be the original documents, but there is hardly any case where the court sees the original documents at the time of framing the charge. The reason is that in no case in Greater Bombay the documents referred to in Section 173(5) are sent to the Sessions Court. The practice that has been all along followed is that the investigating officer brings the documents and statements of witnesses and muddemal to Sessions Court at the time of trial and the original documents and muddemal are exhibited through the witnesses. If any witness is sought to be contradicted with reference to his statement recorded by the police, the original statement is produced by the Public Prosecutor and the relevant portion is marked on the original statement and exhibited in the case. It may be stated that this practice has worked well. I take judicial notice of this fact for the reason that I was a Sessions Judge, Greater Bombay for nearly seven years.
18. Section 209(c) of the Code requires the Magistrate to send to the Sessions Court the record of the case committed to Sessions for trial and the documents and articles, if any, which are produced in evidence. The combined effect of Sections 173(5) and 209(c) is that the Magistrate has to receive and send to the Sessions Court the said documents, statements and articles on committing the case to the Court of Session. There is ho provision in the Code requiring the Sessions Court to receive the documents and statements from the police.
19. It is rather surprising that in this case the learned Magistrate should have failed in his duty to see that copies of the statements were made available to the accused. It is also equally surprising that the learned Sessions Judge should have merely given a direction to take copies inspire of there being a very statutory practice in the Session is Court, Greater Bombay, not to receive original papers in court before (trial commences. The learned Sessions Judge, in giving directions to file the original documents and statements in Court should have taken care to see that the documents which he ordered to be filed in court are kept in proper custody in view of the practice followed in the Sessions Court not to> take the original papers and articles in court and there being no arrangement in Court for keeping such documents in safe custody. It is rather surprising that the sheristedar and the persons in the Sessions office have not taken care to see that such documents are properly kept in safe custody. It is hoped that the Sessions Judge, Greater Bombay has instituted a thorough enquiry into the matter with a view to bringing those persons who dealt with those documents and at whose hands they were lost to book. It is a case where all caution has been thrown overboard and the accused persons have come before the court to have the proceedings quashed in a case where they are charged with a serious offence of having committed murder. Considering the gravity of the charge against the accused, it was more so necessary for the Addl. Sessions Judge to have taken very great care, which unfortunately the learned Addl. Sessions Judge has not taken and has rest himself satisfied by merely passing an order that the documents should be filed in court without taking the requisite precaution to see that the documents are kept in safe custody,. This was more so because at that time there was no practice of receiving the documents in court prior to the commencement of the trial. The failure on the part of all concerned to take proper and adequate precautions has resulted in the making of this application.
20. The question which mainly arises in this case is what is the prejudice that is caused to the accused. The accused have already received the copies, of the police papers and the statements recorded by the police. It cannot be said on the facts and circumstances of this case that the accused have been absolutely deprived of being in possession .of the material to enable them to prepare for their defence, Had this been a case where the accused had not been furnished with copies of the documents, the matter would have assumed a different aspect. But this is not so in the present case.
21. The next question is whether secondary evidence could be led in this case. This is a question which would necessarily arise for determination at the time when the evidence is led. The learned Addl. Sessions Judge has given a finding that the case to proceed on secondary evidence. This would be a question for determination with reference to each document and statement. It cannot be made applicable in a wholesale manner as the order of the learned Addl. Sessions Judge indicates. In the present case all the documents are missing and are untraceable. The question would be whether secondary evidence in respect of the entire police papers could be led. As has been already stated above. Shri Barday has submitted before me that at the time when the two points referred to the Sessions Court by my brother Judge Kotwal, J. for determination were decided and evidence was led for the purpose of determination of the two points, the prosecution did not lead the evidence of the person who himself cut the stencil for the purposes of preparing cyclostyled copies of the original police papers. In Noorkhan's case (supra), the investigating officer who recorded the statement of witnesses merely made jottings of the statements and from those jottings the Head Constable prepared statements of witnesses which were supplied to the accused when the witnesses were not present .at the police station and even in such a case, the Supreme Court held that this did not affect the jurisdiction of the court to try case nor is the failure by itself a ground which affects the power of the Court to record a conviction if the evidence warrants such a course. The present case stands on a somewhat better footing that Noorkhan's case. There is no grievance made that the copies of the statements which have been made by the police are manipulated copies. A general grievance has been made that the police may have manipulated the copies or are likely to manipulate copies. Such a general allegation, in my opinion, is of no consequence.
22. As already stated above, the stage of leading secondary evidence is yet to arrive and it will be for the learned Addl. Sessions Judge to decide this question at the trial and it is not necessary for me to consider this aspect of the matter in this application.
23. Coming to the question of re-construction of the records, there is no question of reconstructing the record as the accused have already been furnished with copies of the statements of witnesses recorded by the police.
24. In the result, the application fails and the rule is discharged.
25. Shri Janardan applies that the stay should be continued till the end of July, 1981.
26. Shri Barday has no objection.
27. Stay to continue till July 30, 1981.
28. July 24, 1981. Shri Janardan applies for extension of the stay till August 17, 1981.
29. On the application of Shri Janardan, stay extended upto August 17, 1981.