R.L. Narasimham, J.
1. This is a reference by the Additional District Magistrate of Keonjhar, recommending the setting aside of a portion of an order of Sri R. C. Mohanty, a Third Glass Magistrate, Champua. in a criminal trial. The material facts are as follows. The police submitted charge-sheet under Section 379/34, I.P.C. against six persons. Cognizance was taken in due course and the case was transferred to the file of Sri R.C. Mohanty for disposal. That Magistrate, prior to the commencement of the trial, satisfied himself that the documents referred to in Section 173(4) Cr. P.C. were duly handed over to the accused persons. Thereafter, on 19-8-58 he perused those papers and framed charges under Section 379/34 I.P.C. Six prosecution witnesses were examined, cross-examined and discharged. The prosecution then wanted to examine an Amin and also to prove his report. The learned Magistrate thought that the Amin's report was inadmissible inasmuch as a copy of the same had not been granted to the accused prior to the commencement of the trial, along with other papers referred to in Section 173(4) Cr. P.C. He followed the decision of a single Judge of the Andhra High Court, reported in Thota Ramalingeswara Rao v. State of Andhra Pradesh. AIR 1958 Andh Pra 568 and held that no papers other than those referred to in Section 173(4) Cr. P.C. -- copies of which bad been duly furnished to the accused -- should be admitted as additional evidence after the commencement of the trial.
2. There has been some divergence of judicial opinion on this question. In AIR 1958 Andh Pra 568 the learned Judge took the view that the provisions of Section 173(4) Cr. P.C. were mandatory and that the accused should be furnished with copies of all documents on which the prosecution relies, prior to the commencement of the trial: and that after the commencement of the trial the prosecution should not be permitted to produce and prove any new documents even though the accused may get sufficient opportunity to cross-examine the prosecution witnesses with reference to the new documents. The Calcutta and Madras High Courts have, however, taken a contrary view. Thus, in State v. Jagdish, AIR 1958 Gal 311 it was pointed out that the provisions of Section 173(4) Cr. P.C. are directory and that even after the commencements of the trial the prosecution may prove additional documents in the usual way -- provided the accused gets a full opportunity to cross-examine the prosecution witnesses in the light of those documents. The Madras High Court has taken a similar view in Public Prosecutor v. C. S. Pachiappa, AIR 1.958 Mad 295.
3. With respect, I would, follow the Calcutta and Madras view. It is true that the provisions of Section 173(4) Cr. P.C. should be followed strictly and copies of all the papers mentioned in that subsection and on which the prosecution relies should be furnished to the accused persons before the trial commences. But after the commencement of the trial, the proper section to be followed would be Section 251-A(7), Cr. P.C. by which the Magistrate is required 'to proceed to take all such evidence as may be produced in support of the prosecution'. The expression 'all evidence' in this clause must include documentary evidence also. It is likely that some documents which were not available during police investigation may become relevant and may have to be produced subsequently.
In such a case the prosecution should not be denied an opportunity to prove these documents -- provided it is ensured that no prejudice is caused to the accused and he is given an opportunity to cross-examine the prosecution witnesses in the light of those documents; i necessary the accused may be granted an adjournment for the purpose of facilitating such cross-examination. If the view of the Andhra High Court in the above-cited case be accepted the power conferred on the Court by, Section 540 Cr. P. C, would be rendered ineffective in many cases. The ends of justice may sometime require that even after the commencement of the trial some additional documentary evidence may have to be produced and proved by the prosecution, and the exercise of discretion by the Court cannot be fettered merely because the relevant papers were not furnished to the accused, before the commencement of the trial, as required by Section 173 (4). On this question I would, with respect, agree with the Calcutta view given in AIR 1958 Cal 311.
4. For the aforesaid reasons I would accept the reference, set aside that portion of the trying Magistrate's order dated 7-11-58 wherein he prohibited the prosecution from proving the Amin's report, and direct the learned Magistrate to permit the prosecution to prove that report, provided a copy of the same is furnished to the accused persons in time, and they are given an opportunityto cross-examine the prosecution witnesses in thelight of that report and to adduce rebutting evidence, if any, on their behalf.