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S. Chimpiraiah Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 350 of 1958 and Criminal Revn. Petn. No. 295 of 1958
Reported inAIR1959AP589; 1959CriLJ1297
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207A(4), 207A(6), 510, 510(1) and 510(2)
AppellantS. Chimpiraiah
RespondentState of Andhra Pradesh
Appellant AdvocateT.V. Sarma, Adv.
Respondent AdvocateD. Sivaramakrishna, Adv. for ;R.V. Rama Rao, Public Prosecutor
Disposition Revision dismissed
.....when made evidence in enquiry only then it is mandatory - prosecution not making examination of expert as evidence - held, court justified in not calling for examination of expert. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits..........and examine the expert as to the subject matter of the report, it is not necessary to do so at the stage of inquiry. 3. in this revision application, before dealing with the various contentions of mr. t. v. sarma. that based upon section 510 (2) cr. p. c., may be first referred to. 4. section 510 cr. p. c states : '(1) any document purporting to be a report under the hand of any chemical examiner or assistant chemical examiner to government, or the chief inspector of explosive or the director of finger print bureau or an officer of the mint, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this code, may be used as evidence in any inquiry, trial or other proceedings under this code. (2) the court may. if it thinks.....

Munikannaiah, J.

1. The short point which arises in this revision application whether while there are no direct witnesses, and when the record before the inquiry Magistrate includes also the alleged account books said to have been forged by the accused the Magistrate cannot proceed with the inquiry without examining the Finger Print Expert, when especially the. accused makes an application under Section 510(2) Criminal Procedure Code.

2. In this enquiry pending before the Judicial 2nd class Magistrate, Ongole, the Assistant Public Prosecutor, Grade II did not want to examine the Finger Print Expert, But the accused filed a petition under Section. 510 (2) Crl. P. C., for summoning the Expert. The Magistrate took the view that the report of the Finger Print Expert is not marked as evidence at that stage in the inquiry, but was only included in the record like any other document filed along with the charge sheet. He therefore dismissed the application of the accused as He felt that it is not necessary at that stage to summon the Expert.

This order was taken in Revision before the Sessions Judge, Guntur. The Sessions Court also found that it was not necessary that it should be proved before the committing Magistrate that the document was forged and that there will he occasions before the trial Court for marking the document and taking evidence. He held that though Sub-section 2 of Section 510 Cr. P. C. is mandatory and that on the application of the prosecution or the accused the Court has to summon and examine the Expert as to the subject matter of the report, it is not necessary to do so at the stage of inquiry.

3. In this revision application, before dealing with the various contentions of Mr. T. V. Sarma. that based upon Section 510 (2) Cr. P. C., may be first referred to.

4. Section 510 Cr. P. C states : '(1) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government, or the Chief Inspector of Explosive or the Director of Finger Print Bureau or an Officer of the Mint, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceedings under this Code.

(2) The Court may. if it thinks fit, and shall, on the application of the prosecution of the accused, summon and examine any such person as to the subject-matter of his report.' Sub-section (1) is unambiguous in that it only enables the use of the report of the Expert, but does not make it obligatory for the prosecution to make that report a piece of evidence even at the stage of enquiry. If, indeed, the prosecution did not state that they are not making it evidence in this enquiry the case may be different. But here the Judl. 2nd Class Magistrate has stated in his order that the opinion of the'Finger Print Expert is not marked and is not taken as evidence. Mr. T. V. Sarma has not been able to point out any provision in the Criminal Procedure Code which empowers the accused to insist upon a particular record to the treated as evidence when the prosecution does not want it to be so at that particular stage.

No doubt the procedure indicated in Sub-section (2) of Section 510 Criminal Procedure Code should be treated as imperative; but subject to the preceding condition contained, in Sub-section (1) of that section that this report has been used in that inquiry as evidence. Having regard to the state of affairs respecting the use of this report at the stage of inquiry as stated by the committing Magistrate, I am definitely of the opinion that no further point or question arises for consideration.

5. However, a further contention of Mr. Sarma needs to be noticed, for, the learned Ses-sions Judge in dismissing the Revision Application has referred to the procedure applicable to enquiries under Section 207-A Criminal procedure Code. Mr. Sarma referred to sub-sections 4 and 6 of this section and argued that the committing Magistrate while examining the accused for the purpose of enabling him to explain the circumstances appearing in the evidence against him is bound to put the Expert's opinion to the accused and as such the Expert's opinion would be treated as evidence at the inquiry.

If it is remembered that not only the report of an Expert is to be considered by the committing Magistrate under Section 207-A Cr. P. C., but all the record furnished under Section 173 Cr. P. C., which include statements under Sections 162 and 164 Cr. P. C.. it cannot be said that all this material so found in the record has become for this reason evidence at the inquiry. The examination of the witnesses to She occurrence is the only thing that could be insisted upon at the stage of enquiry and also evidence or other witnesses, if thought necessary by the Magistrate in the interests of justice.

At that stage, in my view, Sub-section (6) does not enjoin upon the Magistrate the duty of examining the accused in regard to documents considered by him but only in regard to evidence referred to in Sub-section 4. If therefore the report of the Expert is available on the record, the accused will not bo subjected to any examination, in regard to this.

6. Mr. T. V. Sarma next contends relying upon the State v. Ramaratan fS) AIR 1957 MP 7 that where the case for the prosecution rested upon circumstantial evidence and it is not possible to have actual witnesses to the occurrence, it is in the interests of justice that all the material evidence and witness should be adduced and examined at the inquiry itself. No doubt that the citation has an observation to that effect. But however desirable that course may be. it cannot be said that the amended provisions of the Criminal Procedure Code could be taken as countenancing this liberal interpretation of that learned Judge of the Madhya Bharat High Court as it runs counter to the avowed object of speeding UP proceedings, which is the purpose of the amended provisions.

7. Yet another argument of the learned counsel that the provisions of Chanter XLI of Criminal Procedure Code styled as 'Special Rules O Evidence' cannot be taken as subject to the provisions of Section 207-A Cr. P. C.. need not detain me for the reason that though. Section 510 Cr. P. C. is a rule of evidence, Sub-section (2) of Section 510 Cr. P. C., deals essentially with procedure.

8. For the aforesaid reasons, I bold the Ex-pert 'cannot be summoned at this stage. The revision petition is accordingly dismissed.

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