1. Criminal Revision Case No. 692 of 1958 is directed against an order passed by the Judicial II Class Magistrate, Repalle, in C. C, No. 1005 of 1958 upon a memo filed by the prosecution under Section 540 of the Criminal Procedure Code. Criminal Revision Case No. 691 of 1958 challenges the correctness of an order of the same Magistrate in the same case passed on a later date on a petition of the accused presented under Sections 173(4) and 251A of the Code.
2. There was a charge-sheet filed against the accused who were four in number under Sections 323 and 225, I.P.C., by the Sub-Inspector of Police, Cherukupalli. In the charge-sheet were set forth the names of 12 persons as persons acquainted with the circumstances of the case. During the trial, the prosecution filed a memorandum in which they stated that two witnesses may be summoned as 'additional witnesses' on their behalf because their examination was essential to the just decision of the case. One of them is a doctor working as a Radiologist in the Government Headquarters Hospital, Guntur.
He is to produce the negatives of the X-ray photographs taken by him of one of the persons injured in the course of the offence alleged against the accused and he is also to produce his report thereon. It was stated in the memorandum that the Police became aware of the existence of the X-ray photographs after the investigation was over. The other witness was a Head Constable working at Lalapet, Guntur, who was to speak to the receipt of the first information report and the making of the general diary entries. This application was opposed by the accused.
It was contended for them that under Sections 173 and 251-A, Cri. P. C., the prosecution is bound to decide before the commencement of the enquiry 'what witnesses it proposes to examine and what relevant documents it proposes to rely upon in support of its case and to mention their names in the charge-sheet and also to furnish to the accused copies of statements of the witnesses recorded under Section 162 of the Criminal Procedure Code' and that 'if this is not done before the commencement of the Inquiry the prosecution has no right to call any witness that it likes and to file any document it pleases subsequently and thus spring a surprise on the accused.' The accused, therefore, submitted to the Magistrate that the prosecution had no right to examine these additional witnesses and to file the X-ray photographs, the Radiologist's report and the entries in the general diary.
The learned Judicial II Class Magistrate overruled the objection on the ground that the prosecution were invoking the discretion vested in him under Section 540 of the Criminal Procedure Code and that in his view the evidence sought to be let in was essential to the just decision of the case. At a later stage of the trial the accused filed an application raising the same objections. The Magistrate pointed out that he had already overruled the objections in his earlier order and rejected the application. Criminal Revision Case No. 692 of 1958 is directed against his first order and Criminal Revision Case No. 691 of 1958 against his second.
3. These cases have been posted before a Bench because the question raised is one of general importance.
4. The argument urged on behalf of the peti-tioners is that Sub-section (4) of Section 173, Cr. P. C., is mandatory and that it is the duty of the Magistrate under Section 251-A to see that the terms of that sub-section are complied with and that if the documents referred to in Section 173 have not been furnished to the accused, they cannot be brought into the case at a later stage. It is also argued that no witnesses not mentioned in the charge-sheet can be examined at the enquiry or the trial.
5. I shall deal with the first submission first. Now Section 173(4) of the Code of Criminal Procedure requires that the accused should be furnished with copies inter alia of the statements, if any, recorded under Section 164, Cr. P. C., and the statements recorded under Sub-section (3) of Section 161, Cr. P. C. of all the persons whom the prosecution proposes to examine as its witnesses. Sub-section (3) of Section 161, however, does not compel a police officer to reduce into writing all statements made to him in the course of the oral examination of persons 'supposed to be acquainted with the facts and the circumstances of a case under investigation'. He may or may not reduce such statements into writing. When the statement of a person is not recorded, it does not mean that the person cannot he examined by the prosecution at the enquiry or the trial.
Further, no statements at all may have been recorded under Section 164, Cr. P. C. When no statements therefore are recorded either under Section 161(3) or Section 164 it is obvious that no right under Sub-section (4) of Section 173 accrues to the accused. Thus the clause in Sub-section (4) of Section 173 that 'the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses' should be understood as relating to such statements, if any, as were recorded. These words do not mean that statements should have been taken of all the witnesses whom the prosecution proposes to examine as its witnesses and that the accused should be furnished with copies of such statements. Sub-section (1) of Section 251-A relates only to the right which the accused has under Section 173(4).
There is no provision in the Criminal Procedure Code which obliges the police to give in their charge-sheet a list of all or any of the witnesses whom they propose to examine although as a matter of practice, a list of witnesses is furnished. The practice, no doubt, is a desirable one. But merely because such a list is furnished, it is not to be considered exhaustive and as disabling the prosecution from examining any other witness. In any case, the power vested in the Court under Section 540 of the Criminal Procedure Code is not subject to any restrictions because thereby the Court is empowered to 'summon any person as witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; ..... if his evidence appears to it essential to the just decision of the case.'
6. I shall now deal with the second submission relating to the production of X-ray photographs. It is true that Section 173(4) required the police officer to furnish to the accused 'all other documents or relevant extracts thereof on which the prosecution proposes to rely'', and Section 251-A requires the Magistrate to satisfy himself that the documents referred to have been so furnished to the accused. The words in Sub-section 173(4) can be reasonably understood as applying only to such documents of the existence of which the prosecution was aware. There is no express prohibition in either section against the use by the prosecution of document, copies of which have not been furnished. The mere fact that a duty is imposed upon the prosecution and the Magistrate does not necessarily entail the consequence -- a consequence, particularly which is not provided for in the Code -- of precluding the prosecution from using later any documents of which a copy has not been supplied.
A mistake might have been committed or as in the present case, the existence of such a document might have not been known to the prosecution, I am not prepared to read into these provisions of the Code an interdict, by implication, against the prosecution using a document at the enquiry or trial, a copy of which does not happen to have been furnished to the accused. The proper thing to do in such a case, to ensure fairness to the accused, would be to direct the prosecution to give the accused a copy at once of the document and, if necessary, to allow the accused a reasonable time to consider the effect of such document upon his defence. I do not, with respect, find myself in agreement with the decision of a single Judge of this Court in which a contrary view was taken. Vide Thota Barnalingeswara Rao v. State of Andhra Pradesh, 1957-2 Andh WR 450: (AIR 1958 Andh Pra 568);
7. Before I conclude I would like to add that it is worth-while remembering that all rules of procedure are substantially designed to be the means --as fair and just as the Legislature can make them --whereby the ascertainment of the real facts of a case is facilitated, and are, doubtless, intended to be and must be, strictly obeyed. It nevertheless happens, perhaps more frequently than one likes, that Courts overlook or misread the provisions. A code of procedure sometimes does specify the consequences of such violation but where it does not, Courts should not, in my opinion, read into it by mere implication a consequence of so serious a nature as a total ban against relevant evidence.
8. I am, therefore, of the opinion that the prosecution cannot be prevented from adducing the additional evidence' in the present case.
9. The view I have expressed is, it appears, to me, in consonance with the decision of the Supreme Court in Narayan Rao v. State of Andhra Pradesh, : 1957CriLJ1320 . Their Lordships have pointed out therein that the word 'shall' occurring in Sub-section (4) of Section 173 is not mandatory but only directory and that an omission by a police officer to 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. They pointed out that if it is shown that the omission on the part of the police officers concerned has caused prejudice to the accused, the Court may in the interests of justice reopen the proceedings by insisting upon full compliance with the provisions of the Code.
10. In my view the order of the Magistrate is not opposed to the provisions of the Code and is also proper in the particular circumstances of the case. The result is that these revision cases fail and are dismissed.
Krishna Rao, J.
11. I agree with my learned brother's conclusion that both the Revision Petitions must be dismissed and would like to express the reasons in a few words of my own.
12. The point of law raised by the learned counsel for the petitioner is that on a true construction of Sections 173 and 251-A of the Criminal Procedure Code, the prosecution are barred from relying on any document or calling any witness that they did not propose to rely upon or to examine, before the commencement of the trial. If this contention were sound, it would naturally follow that the powers of a Court under Section 540 are modified pro tanto and that the prosecution are disentitled to invoke the section for such a purpose. Now under Section 5 of the Evidence Act, either party to a criminal proceeding may adduce evidence of every fact in issue and of relevant facts.
There is no express provision in Section 251-A abridging that right of the prosecution. On the other hand, under Sub-section (7) of Section 251-A 'the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution' on the date fixed for the examination of the witness. If the petitioner's contention prevails, we would have to read additional words into Sub-section (7) so that it means 'all such evidence that is based on the documents referred to in Section 173, as may be produced'. The question is whether such construction is required by Sections 173(4) and 251-A.
13. As was observed by the Supreme Court in Hanumantha Rao v. State of Andhra Pradesh, : 1957CriLJ1463 , the object of the amending legislation in Act XXVI of 1955, which introduced the present Sections 173(4) and 251-A was to ensure a speedy trial of offences without any avoidable delay. Under the procedure specified in Sections 251 - 259, which was formerly the procedure for the trial of all warrant cases by Magistrates, the accused had the right of cross-examination of the prosecution witnesses more than once, entailing delay in the completion of the trial.
The Legislature considered that the necessity for more than one cross-examination and the delay involved therein could be avoided in cases instituted on police reports, by fully informing the accused in advance of the case for the prosecution which he had to meet. With this object in view, it amended Section 173(4) by Act XXVI of 1955 and also introduced Section 251-A prescribing a simplified procedure for the trial of warrant cases instituted on police reports.
Still, under the proviso to Sub-section (7) of Section 251-A the Magistrate is empowered 'to permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination''. This safeguard for the benefit of the accused would have been quite unnecessary, if the intention was to bar the prosecution from adducing any evidence other than that based on the documents referred to in Section 173(4) copies of which are enjoined to be furnished to the accused before the commencement of the trial.
It is therefore clear to my mind that Sections 173(4) and 251-A ought not be construed so as to abridge the right of the prosecution under Section 5 of the Evidence Act. Such a construction would defeat the very object of a criminal trial which is as much to vindicate the innocence of a person wrongly accused as to prevent the escape of a person who is really guilty.
14. It is contended on behalf of the petitioner that the provisions of Sections 173(4) and 251-A are mandatory, that the rights given thereunder to an accused are vital to his defence and that the provisions of Section 251-A must be construed strictly and in favour of the accused, as he would otherwise be likely to be taken by surprise and prejudiced in his defence. For this position, strong reliance was placed on a judgment of our learned brother Kumarayya, J. in 1957-2 Andh WR 450 : (AIR 1958 Andh Pra 568). But the question whether an accused is prejudiced is essentially one of fact depending on the circumstances of each case.
The Supreme Court held in : 1957CriLJ1320 , that the word 'shall' occurring both in Sub-section (4) of Section 173 and Sub-section (3) of Section 207-A is not mandatory and only directory. Subsection (3) of Section 207-A is in pari materia with Sub-section (1) of Section 251-A. As pointed out by their Lordships of the Supreme Court, if it is shown in any particular case that the omission on the part of the Police Officers concerned or of the Magistrate has caused prejudice to the accused, the Court may reopen the proceedings by insisting upon full compliance of the provisions of the Code. Allowing the prosecution to adduce additional evidence will not itself prejudice the accused and all the more so at a stage when he could avail of the right under the proviso to Sub-section (7) of Section 251-A.
15. It is not the case of the petitioner that he has any apprehension that the Magistrate will not allow him sufficient time to prepare for the cross-examination of the additional witnesses or that he will not permit further cross-examination of 8 witnesses already examined if it is found necessary in the light of the additional evidence. In the circumstances it is not necessary to give any further directions except that the revision cases be dismissed.