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Philip Pharaak Fernandes and anr. Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1962CriLJ560
AppellantPhilip Pharaak Fernandes and anr.
RespondentThe State of Mysore
Excerpt:
.....only 1/4th of the market value of the seized vehicle does not arise. impugned order was quashed. - according to him, the provisions of section 173(4) of the code of criminal procedure are contravened inasmuch as, an important document like the complaint exhibit p-29 was not furnished to the accused even though the prosecution relies upon it. how then could it be said that the accused have failed to establish the defence as per its terms?.....a revision against the conviction of two accused who are the petitioners before this court by the learned sessions judge, north kanara accused convicted under section 325 ipc and sentenced to 4 months r. i. and a fine of rs. 500/-. accused 2 is convicted under section 324 ipc and sentenced to two months r. i. only.2. the facts leading to this revision are briefly as follows: on 3-1-1957 at kasarket (n. e.) between 2.30 or 3 p. m. a scuffle took place in a street between the accused and the complainants who are p.ws. 1 and 2. these two are closely related to each other. that these witnesses were injured there can be no doubt. p.w. 1 seems to have received serious injuries. it is also not denied that accused 2 also has sustained injuries. as per the certificate marked as exhibit p-30.....
Judgment:
ORDER

Mir Iqbal Hussain, J.

1. This is a revision against the conviction of two accused who are the petitioners before this Court by the learned Sessions Judge, North Kanara Accused convicted Under Section 325 IPC and sentenced to 4 months R. I. and a fine of Rs. 500/-. Accused 2 is convicted Under Section 324 IPC and sentenced to two months R. I. only.

2. The facts leading to this revision are briefly as follows: On 3-1-1957 at Kasarket (N. E.) between 2.30 or 3 P. M. a scuffle took place in a street between the accused and the complainants who are P.Ws. 1 and 2. These two are closely related to each other. That these witnesses were injured there can be no doubt. P.W. 1 seems to have received serious injuries. It is also not denied that accused 2 also has sustained injuries. As per the certificate marked as Exhibit P-30 issued by the Medical Officer of Bonnavar who has been examined as P.W. 4 in the case, the injury on the head of accused 2 above the right ear was a contused one 2'x1/2'x1/2'. As the scuffle too place in broad daylight and in a public street, there was little difficulty in apprehending the accused. The accused and the complainants were also taken to the hospital for treatment. It is also not denied that Accused 2 also preferred a complaint. That complaint is Exhibit P-29.

3. It is urged by Sri Ramachandra, the learned advocate for the petitioners that the conviction of these accused is not sustainable in law. According to him, the provisions of Section 173(4) of the Code of Criminal Procedure are contravened inasmuch as, an important document like the complaint Exhibit P-29 was not furnished to the accused even though the prosecution relies upon it.

4. Section 173 (4) of the Code of Criminal Procedure is a very healthy provision introduced into the Criminal Procedure Code by the Amending Act in order not only to simplify the procedure but also to safeguard the interests of the accused. It enjoins on the prosecution the duty to furnish the accused all the documents on which it relies, thus giving the accused an opportunity to have an overall picture of the case against him. It is thus helpful to the accused to meet the case of the prosecution. Section 173(4) runs as follows:

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.

Sri Ramachandra emphasises the clause which states that the prosecution shall furnish all documents on which it proposes to rely. In this case, according to him, as is evident from the judgment of the learned Sessions Judge the prosecution has relied on Exhibit P-29 but a copy of it has not been furnished to the accused. Hence prejudice is caused in the conduct of their case and this is a fit case for quashing the sentence.

The question arises whether the provisions of the said Section are directory or mandatory. No doubt the word that is used is 'shall'. If 'shall' is taken as mandatory, then the provisions of Section should be obeyed unconditionally and the non-compliance thereof will vitiate the trial. For instance in a decision of the Madras High Court in the case of In re Rangaswami Goundan reported in : AIR1957Mad508 it has been held that this provision is a mandatory one. In the words of their Lordships:

Now after the amendment it has become the statutory obligation on the part of the prosecution to furnish or cause to be furnished to the accused all documents referred to in Sub-section (4) of Section 173 Criminal Procedure Code before the commencement of the inquiry or trial.

Further, their Lordships state:

The provisions relating to the grant of copies mentioned in Section 173(4) CrIPC are vital provisions and disregard of such a vital provision is fatal to the trial and at once invalidates the conviction.

Some other High Courts have taken a contrary view. They consider that this is only a directory provision of the Act and non-compliance by (he Police Officer of the provisions of Section 173 should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Sessions Court wholly ineffective. Fortunately, this conflict has been resolved by the Supreme Court in a decision in the case of Narayana Rao v. State of Andhra Pradesh reported in : 1957CriLJ1320 where their 'Lordships have held as follows:

The provisions contained in Section 173(4) and Section 207A(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 persons all the information for the proper conduct of their defence, are furnished.

After stating the purpose for which this amendment has come into existence, their Lordships proceed to state as follows:.non-compliance with these provisions has not the result of vitiating these proceedings and subsequent trial. The word 'shall' occurring both in Sub-section (4) of Section 173 and Sub-section (3) of Section 207A is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of Section 173 should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the court of Session, wholly ineffective.

Their Lordships have considered another aspect. Supposing prejudice is caused to the accused, what then is the effect of provisions of Section 17 and their reply is as follows:

However, if it is shown. in a particular case, , on behalf of the accused, persons, that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the court may re-open the proceedings by insisting upon full compliance with the provisions of the Code.

The point therefore for consideration is whether the argument advanced on behalf of the petitioner-accused before this Court that they have been prejudiced in the trial of their case is substantiated or not. In this connection, it is enough if I refer to a few observations made by the learned Sessions Judge wherein he takes into consideration the complaint Exhibit P-29 for the purpose of testing the truth of the prosecution case and the falsity of the defence. According to him there are two versions of the occurrence as per complaint Exhibit P-29 of accused 2

wherein it is sought to be made out that the aggressors were not the two accused but P.Ws. 1 and 2 and Saver, What immediately strikes one is that the say of the second accused as per Exhibit P-29 has not been attempted to be supported by the defence.

In the first place, it must be noticed that it is only the complaint of accused 2 and how could a statement made therein be used against accused 1? If it is so used, certainly prejudice is caused to him.

5. Even with regard to both the accused there is this significant circumstance. This document viz., the complaint of accused 2 was not given to the accused along with the other documents. It was not even placed before court until 11 prosecution witnesses were examined. Only when the Sub-Inspector of Police who is the investigating officer entered the witness-box, this document was put through him and admitted as part of the evidence in the case. That means to say that the accused did not have the benefit of knowing the whole case of the prosecution before the trial. Nor had they an opportunity of cross-examining or elucidating some explanation if possible, in their favour from the prosecution witnesses 1 to 11 regarding the statements contained in Exhibit P-29. I consider that there is great force in the argument of Sri Ramachandra that by non-furnishing of this document to the accused before the case started as per the provisions of Section 173(4) it has caused serious prejudice.

6. A further reference to the judgment of the learned Sessions Judge will elucidate this aspect of the case. He states in paragraph 7 of his judgment as follows:

From the above complaint Exhibit No. 29 of the second accused, one. sees that there was an occurrence at the time and place alleged by the prosecution in which were involved the two accused P.W. Nos. 1 and 2 and Saver....

In para 13 he states:

The prosecution version of the occurrence has been satisfactorily proved. The version of the second accused as found in his complaint exhibit No. 29 has not even been sought to be established by the defence.

The first accused who was not a party to this document is not aware of its contents. How then could it be said that the accused have failed to establish the defence as per its terms? In another part of the judgment in the same paragraph the learned Sessions Judge states:

As per the complaint Exhibit No. 29 of the second Accused, though P.Ws. Nos. 1 and 2 and Saver have been pictured as aggressors, there is not a whisper that the accused by way of self-defense inflicted any injuries on the so-called aggressors.

Even this indicates that the learned Sessions Judge is testing the case of the defence from the point of view of Exhibit P-29. In fact, considering this. judgment with care, I find that the crucial test that the learned Sessions Judge has employed in testing the defence is whether it conforms to the terms of Exhibit P. 29. He also tests the prosecution case by placing this document in juxtaposition. Under the circumstances I have no hesitation in coming to the conclusion that prejudice has-been caused to the accused.

7. The only other point that requires a passing reference is what is the proper way of disposing of this case which took its birth as far back as 3-5-1959 when the complaint was filed. In my view, no useful purpose will be served by subjecting the accused to a further ordeal of a second trial on the materials referred to supra.

8. In the result, the conviction and sentence passed on both the accused are set aside. The bail bonds furnished by the accused are ordered to be cancelled. This revision petition is allowed.


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