1. This reference is directed against the order of the Sub-Divisional Magistrate, Kov-vur refusing to receive certain documents sought to be filed by the prosecution, the copies of which were not furnished to the accused before the commencement of the enquiry. The accused is an Executive Officer of Sri Venugopala Swamy Temple, Gokavaram and he was charged with an offence under Section 409, Penal Code, in relation to som6 amounts collected from the tenants of the temple.
The enquiry was started on a police report under Section 251A, Criminal Procedure Code and a charge was framed under Section 409, Penal Code. The accused having pleaded not guilty eight witnesses were examined by the prosecution. When P.W. 9 was being examined, the prosecution sought to exhibit some registered notices alleged to have been issued by the accused to the tenants of the temple and also the replies given by some of the tenants. These are the documents, the copies of which were not supplied to the accused before the commencement of the enquiry.
The accused objected that such documents are not admissible in law at that stage. The prosecution's reply to this was that the provisions of Section 173(4) are merely directory; that the omission 'to comply with the same does not entail the penalty of rejection of the documents produced at a subsequent stage and that having regard to the provisions of Section 251-A (7) it is obligatory on the Court to take this evidence which is being produced by the prosecution. This argument did not find favour with the learned Magistrate who held that the provisions relating to the supply of copies of all the documents under Section 173(4) of Criminal procedure Code are mandatory and such documents therefore cannot be admitted In evidence.
The learned Additional Sessions Judge is of the opinion that the provisions of Section 173(4) are only directory and the refusal of the Magistrate to admit the evidence which he is bound to take under the provisions of Section 251-A (7) is against law. He' therefore, has recommended that this order be set aside.
2. In my opinion, this reference does not merit acceptance. The provisions of the Section 173(4) are introduced by the Criminal Procedure Code (Amendment) Act (XXVI of 1955). Before such amendment most of the documents referred to therein could only be furnished to the accused on application and on payment of the nedessary costs and copies of the statements under Section 162, Criminal Procedure Code could t# grant, ed only on application when the witnesses- wtt put in the witness-box.
But the present provision has been Introduced as an essential safeguard for the accused because the procedure relating to enquiry of the case instituted under the police report n&s; been materially altered. This provision casts a duty on the prosecution to furnish all the statements free of costs, at all events, before the commencement of the enquiry as provided in sections 207-A and 251-A, Criminal Procedure Code, The avowed object is that the accused should have a correct picture of the case that he has to meet so that he may prepare his defence accordingly.
This is necessary because under the amended provisions he has no longer a right and opportunity to cross-examine the witness before a charge Is framed against him. He cannot therefore be made aware of the true picture of the case against him in any other manner. The provision being of incalculable importance for the accused it cannot be ignored without detriment to the cause of the accused. So then, if the prosecution does not comply with the procedure laid down, it follows that the accused, having had no opportunity to know the case against him, will simply broken by surprise.
In the present case, it is evident that though the prosecution had come to know of these documents during investigation and was in possession of the same, it failed to furnish copies thereof till as many as eight witnesses were examined. It may be remembered that the purpose of cross-examination is two-fold; the first is to destroy Or weaken the effect of the testimony of witnesses and the second is to elicit from them something in favour of the defence.
Had the copies of the documents been in his possession the accused would have planned and regulated his cross-examination on those lines. He would have tried to elicit something in his favour from them even in relation to those documents. The charge being in relation to collection and mis-appropriation of amounts from the tenants any such fresh document or evidence introduced after some witnesses have been already examined is likely to seriously prejudice the case and Upset the line of his defence.
It cannot be gainsaid that presumption of prejudice is, as a rule implicit in non-compliance with the mandatory provisions of law. The learned Sessions Judge has referred in his order to a passage in W. Slaney v. State of Madhya Pradesh : 1956CriLJ291 , to show that such provision is not mandatory. But it has been observed therein that;
Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the' trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand....
3. It is indisputable that the statutory right of the accused to be furnished with copies of all the documents on which the case of the prosecution rests and the proof of his guilt depends is a most valuable right. The denial of the same or omission to supply copies of any of these documents Will certainly prejudice his case Inasmuch as he will not be able to effectively meet all the circumstances that are sought to be brought against him. Such a procedural provision is vital to his cause.
Any defect in compliance with the same is likely not only to mislead him but to end In failure of justice. Such a provision having regard to the language In which it is couched and the Incalculable value that It has for the accused i cannot but be regarded as basic and mandatory. The same is the view of the Bench of the Madras > High Court: Rangaswamy Goundan, In re : AIR1957Mad508 . I therefore see no reason to interfere with the order of the learned Magistrate. The reference is answered accordingly.