R.K. Das, J.
1. This is an application under Section 526, Cr. P. C. to transfer G. R. Case No. 1/62 pending in the Court of Sri T.V. Rao, Special Judge, Puri, to some other Court competent to try the case.
2. The opposite parties were prosecuted for having committed various offences under the Indian Penal Code and under the Prevention of Corruption Act. The case dragged on for several years and the prosecution case was closed on 26-9-1966. Thereafter the case was adjourned to 1-11-1966 for defence. On 16-11-1966 the trial was resumed when the accused G.A.N. Rajan offered himself to be examined as a defence witness. On that day, it is alleged by the prosecution that he made reference to a private note book and practically read out his deposition verbatim from the said book. To this, objection is said to have been raised by the special Public Prosecutor, but the Court did not exercise any check on the witness who continued this process throughout his deposition.
The grievance of the prosecution is that even if the matter was brought to the notice of the Court, the Court did not restrain the witness from using the said note book in that way. Their other ground is that the defence did not give a list of witnesses and the documents sought to be relied upon by them before they entered upon the defence as required under the provisions of Section 7(A)(a) of Act 40 of 1964 read with Sub-section (8) of Section 251-A, Cr. P. C., but furnished such a list only after the commencement of the defence evidence. It is said that though the matter was brought to the notice of the Court the Court allowed the defence to proceed with the evidence without giving sufficient time and opportunity to the prosecution to get instructions in respect of those documents.
3. Mr. M.N. Das, appearing for the opposite party contended that the accused who offered himself to be examined as D. W. 1 never used any such note book as is alleged by the Public Prosecutor. With respect to the other allegation his contention is that shortly after the closure of the prosecution case the accused gave a list of documents on 26-9-1966. He, however, did not deny the fact that the accused Rajan who offered to examine himself as a defence witness (D. W. 1) furnished a further list of documents even after the commencement of his examination.
4. As to the first contention, it appears that Sri G.C. Chandra, the senior public prosecutor of the special police establishment at Puri who conducted the case before the learned Special Judge has himself filed an affidavit wherein he has stated that: 'In course of his examination the witness began to read out verbatim from a private note book which is not an exhibit in the case and the Court went on recording the reproductions from the note book as evidence in the case'.
5. A copy of the objection petition filed before the Special Judge to this effect was also filed before this Court. It, however, appears that the objection was taken for the first time in the Court on 21-11-1965 and there is nothing on record to show that any such objection was taken on 16-11-1966 though on that day objection was taken to the marking of some documents without furnishing any list of such documents and a petition was filed to that effect. The Court noted the objection and directed the defence to supply the list of documents on the following day.
It appears that the case after examination of D. W. I on 16-11-1966 was adjourned to 17-11-1966 and on that day the defence gave a list of a large number of documents. The case thereafter, though stood adjourned to 18-11-1966, could not be taken up before 21-11-1966. The grievance of the prosecution is that the Court allowed the accused to give a list of a large number of documents numbering 49 at a belated stage and did not allow sufficient time to peruse the documents and get instructions on the same for cross-examination of the defence witnesses, but directed to proceed with the cross-examination of such witnesses.
6. There appears to be some force in this contention. Sub-section (8) of Section 251-A, Cr. P. C. lays down that after the examination and cross-examination of all the prosecution witnesses and after completion of the prosecution case the accused shall be called upon to enter upon his defence and any written statement put in, shall be filed with the record. By Section 7 (A) (a) of Anti-Corruption Laws (Amendment) Act (Act 40/64), the provisions of Sub-section (8) of section 251-A, Cr. P. C., were modified in their application to proceedings in relation to offences under Sections 160, 165 or 165A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947.
It says that in Section 251-A (8), Cr. P. C. for the words 'the accused shall then be called upon' the words 'the accused shall then be required to give in writing at once or within such time as the Magistrate may allow, a list of persons (if any) whom he proposes to examine as his witnesses and of the documents, if any, on which he proposes to rely and he then shall be called upon' shall be substituted. Thus, the effect of the amendment is that after the prosecution case is closed and when it reaches the stage contemplated under Sub-section (8) of Section 251-A the accused shall be required to give in writing at once or within such time as the Magistrate may allow a list of persons whom he wants to examine and the documents on which he wants to rely.
The object of the amendment obviously is to give to the prosecution notice about the mature of the defence so that it may have sufficient opportunity to test the credibility of the defence version by cross-examination. It is essential that the rules of procedure designed to ensure justice should be scrupulously followed and the Courts should be jealous in seeing that there is no breach of them (see AIR 1954 SC 455, Ronald Wood Mathams y. State of West Bengal.) Of course the question whether any prejudice has been caused to a party is a different matter and has to be looked to from another angle. It, however, appears from the record that the defence supplied a list of large number of documents after they entered upon the defence and the grievance of the prosecution that it had not been given sufficient time to take instructions on those documents for effective cross-examination is not unreasonablythough that is no ground for transfer of thecase.
7. Having heard the counsel of both sidesand having perused the records, I am of theopinion that the prosecution should be given ftreasonable time before it is called upon tocross-examine the defence witnesses. With regard to the objection that the defence witnessesshould not be permitted to refer to a privatenote book, the position of law is clear. It isopen to a witness to refresh his memory by reference to a document as provided under Sections 159 and 160 of the Evidence Act andwithin the limitations prescribed therein. Ifthe witness has refreshed his memory with reference to any such document as alleged bythe prosecution, they have a right to inspectand use the same for purpose of cross-examination as provided under Section 161 of theEvidence Act. Whether the alleged exercise-book said to have been used by D. W. 1 wasused for refreshing memory or it is a record ofhis evidence which was produced verbatim fromthe same could be tested by the verification ofthe same by the prosecution and the prosecution can very well insist upon the production ofthat document for use in cross-examination.
8. I have no doubt that the learned Special ge will give a reasonable time and opportunity to the prosecution to cross-examine the defence witnesses, particularly when a test of a large number of documents have been filed fey the defence as late as on 17-11-1966.
9. There is no merit in the transfer petition which is rejected.