1. This is an appeal by the State against an order of acquittal. Each of the 17 respondents was charged under two counts -- one under Section 143 I. P. C. and another under Section 341 J. P. C. The learned District Munsiff-cum-First Class Magistrate rejected the evidence of all the prosecution witnesses except two which he did not take into consideration because he thought it was not 'relevant and admissible'. It is best to state his reasons in his own words.
'First I propose to consider whether the evidence of the Deputy Superintendent of Police and Sub-Inspector of Police cart be acted upon by the Court in deciding the case of the accused. This case is filed by the prosecution under the amended Criminal Procedure Code, and it is on a police report under Section 173 Cr. P. C. In such cases it is obligatory 011 the part of the prosecution to decide before commencement of the enquiry what witnesses it proposes to examine in support of its case and mention their names in the charge sheet that is filed under Section 173 Cr. P. C. and furnish to. the accused copies of the statements of those witnesses recorded under Section 162 Cr. P. C. vide Section 173(4) Cr. P. C. In this case the prosecution has followed the above procedure in the beginning. But when the prosecution felt that the witnesses, cited by them except P.W. 1 in this case would not support their case, they were given up and the prosecution side felt it necessary to fill in this want by reinforcing the same with the testimony of P.Ws. 3 and 4. As the amended Code stands and in view of the mandatory nature of the provisions of Sections 173(1)(a) and 173(4) the police are not entitled to file a supplemental list of witnesses, at any rate list of witnesses who have not been examined under Section 161(3) Cr. P. C. Somehow they were summoned as prosecution witnesses and not as Court witnesses. But the fact that they werg examined does not entitle their evidence to bo considered as relevant and admissible. The examination of such witnesses is in derogation of the rights conferred on the accused by the Code. Further the investigating officer has not recorded their statements under Section 161 (1) and (3) Cr. P. C. The prosecution under the amended Section 173(4) Cr. P. C. has to supply the statements recorded under sub-section (3) of Section 161 of all the persons whom it proposes to examine as its witnesses. In this respect the Code does not make any distinction in summons cases and warrant cases. Either this section or any other section in the Cr. P. C. does not state that the police-officers, who are to be examined as prose-cution witnesses, not being the investigating officers, need not be examined under Section 161 Cr. P. C. Therefore the prosecution should have examined these witnesses under Section 161(3) Cr. P. C. before the charge-sheet was filed and non-examination of these witnesses on prosecution side takes away a vested right conferred on the accused by the Procedure Code and if their evidence is considered as admissible, then the accused will be prejudiced. Therefore I do not propose to deal with the evidence of these two witnesses and the same will be Ignored. In this connection the observation of Mr. Somasundaram J. in V. Section Ramanathan, : AIR1957Mad466 , is worth bearing in mind.'
2. In my opinion, the learned Magistrate has misdirected himself in reaching this conclusion. It is not obligatory on the part of the investigating officer to reduce into writing any statement made to him in the course of his investigation under Section 161 Cr. P. C. nor is it necessary that he should have examined every person who is later cited as a witness by the prosecution. The obligation imposed by Section 173 is limited to the furnishing of copies of 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' as stated in Sub-section (4) of Section 173 Cr. P. C.
This provision only means that if statements have been recorded under Section 161(3), then the statements of such persons as the prosecution proposes to examine as witnesses should be given to the accused. Among the persons from whom statements are taken under Section 161(3) there may be persons, who are not later cited by the prosecution as witnesses in which case the statements of such persons need not be given to the accused.
Section 173 Cr. P. C. is not to be read as disabling the prosecution from examining a witness who has not been mentioned in the charge sheet or whose statement has not been recorded under Section 161(3). The right of the accused to use a statement in the manner mentioned by the proviso to Section 162 is limited to the statements actually taken under Section 161(3). He is further not entitled to all the statements recorded; nor can he say that the statements of all persons who have been examined by the police should have been reduced into writing.
He cannot insist that no witness shall be examined at the inquiry or trial by the prosecution whose, statement has not been reduced into writing. It may also be pointed out that the learned Magistrate's view that the provisions of Sec, 173 (4) Cr. P. C. are mandatory is not right in view of the decision of the Supreme Court in Narayan Rao v. State of Andhra Pradesh, (S) : 1957CriLJ1320 , in which their Lordships observed that
'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 Sessions wholly ineffective.'
It is therefore unnecessary to consider the decision of the single Judge of the Madras High Court to which reference has been made by the learned Magistrate and which, it has been brought to my notice has since been overruled by the decision of a Bench of the same Court, In Re: Thirumal Thevar, AIR 1958 Mad 135.
3. In the above view, the learned Magistrate was in error in refusing to take into consideration the evidence of these witnesses. The evidence has been read over to me and after a careful consideration of their evidence. I have reached the conclusion that the case for the prosecution has been established against all the respondents under both the counts.
4. His Lordship examined the evidence of P.W. 3 and P.W. 4, which evidence was excluded by the trial court and proceeded):
There is no reason why the evidence, of the two witnesses should not be accepted. I therefore, find all the accused guilty under Section 143 I. P. C. as well as under Section 341 I. P. C. Having regard to the fact that this occurrence took place more than two years ago, I think it would be sufficient if each of these accused is directed to pay a fine of Rs. 5/- for conviction under each of the counts. In default of payment of the fine under either count each of the accused will suffer simple imprisonment for one week. The accused will have a month from to-day for payment of the fine.
5. The appeal is allowed and the accused (Respondents) are convicted and sentenced as stated above.