R.K. Das, J.
1. The parties in all these revision! are the same and the question of law that arises is common to all. Accordingly all the applications are disposed of by this one judgment.
2. The opposite party has been committed to the court of Sessions for an offence under Section 409, Indian Penal Code. It appears that 18 F. I. Rs. were lodged in respect of 18 separate cases against the opposite party who is an ex-Sarpanch of the Gram Panchayat, Sankar, and all these 18 cases have been clubbed together to six cases out of which these six revisions arise
3. At the trial a number of witnesses have been examined. The prosecution case is that the Gram Panchayat Auditor who audited the accounts of the above stated Gram Panchayat from 10-2-63 to 16 3-1963 noticed some defalcations said to have been committed by the opposite party Harish Chandra and thereafter he filed the aforesaid F. I. Rs. It is said that after the audit was over, the cash book and other documents on the basis of which the audit report was prepared were stolen for which a separate theft case has also been started. At the stage of the trial in the absence of the cash-book the prosecution wanted to rely upon some loose sheets of accounts said to be the copies of the cash book prepared by the auditor at the time of his audit, and to produce the same in court obviously to be used by way of evidence by the auditor when examined in Court. The learned Assistant Sessions Judge who was trying the case refused to accept these documents on the ground that they were loose sheets of paper and were not filed either at the time of investigation or in the committal stage but were filed at a late stage when a number of prosecution witnesses had already been examined. He also doubted the genuineness of these documents. According to him, copy of these documents not having been supplied to the accused as contemplated under Section 173 Cr. P. C. it would be highly prejudicial to the accused to accept those documents at this stage. He therefore, rejected the petition filed on behalf of the prosecution for acceptance of these documents.
4. The learned Government Advocate placed some provisions of the Indian Evidence Act such as Sections 68(3), 159 and 160 and contended that the documents may be admitted In evidence under any of these provisions. He contended that unless and until the auditor comes to the box, and says in what manner he wants to utilise the loose sheets of paper in evidence, it would be difficult even for the Court to decide under which of these provisions of the Evidence Act the said documents may be made admissible in evidence. I think there it some force in this contention. If the loose sheets are made from and compared with the original cash-book, they would be secondary evidence within the meaning of Section 68(3) of the Evidence Act. Under Section 169 a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, and under Section 160 a witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. I do not propose to say at this stage whether the documents would be admissible under any of these provisions and that can only be done when the auditor comes to the box and makes his statement about the nature of the documents and the time of their preparation etc. It is enough to say that it was premature to reject the petition at this stage.
The learned trial court should not also have expressed any opinion regarding the genuineness of these documents as he was to consider them at the stage of the trial. That apart even if we assume that the documents are not genuine, that would be going Into the merits of the case. If the trial court was of the opinion that non-furnishing of the copies of the documents to the accused would be prejudicial to the accused, he could have given necessary direction to the prosecution to supply the copies of those documents to the accused before examination of the auditor. That, however, is no ground to reject the petition in limine. Learned counsel for the petitioner rightly contended that the powers of the court under Section 540, Cr. P. C. is wide enough to allow such evidence at any stage of the trial, and the mere fact that they were not filed before the committing court is no ground to reject the documents of the prosecution. With regard to the supply of copies of documents, under Section 173, Cr. P. C. their Lordships of the Supreme Court in a decision reported in AIR 1964 SC 286 Noor Khan v. State of Rajasthan observed that the object of Sections 162, 178 (4) and 207-A (8) is to enable the accused to obtain a clear picture about him before commencement of the enquiry, but the failure to furnish any statement or copy of such evidence will not necessarily mean that the case itself will fall on that ground. Regarding belated filing of certain documents, the Privy Council in a case reported in AIR 1928 PC 80 Jewan Lal Daga v. Nilmani Chandhuri said that where certain account books were not filed within proper time, the objection to the documents upon the ground that its not having been produced at the proper time renders its authenticity the subject of suspicion and all other grounds upon which a document can be successfully impeached still remain open, but refusal to permit a man to refresh his memory under Section 159 by proper relevant contemporaneous documents might lead to a grave injustice.
5. In view of this legal position the learned Assistant Sessions Judge was not correct in refusing to accept the documents in question. He should have accepted the documents and allowed it to be used by the prosecution in so far as it is permissible by law. The summary rejection of such evidence may lead, in some cases, to grave injustice. Of course it is always open to the Court to give such weight to such documents as is justified under the circumstances of the case. The order of Assistant Sessions Judge is accordingly set aside and he is directed to accept the documents in question and deal with them in accordance with law.
This order will govern all the six pending eases before him. The hearing may be expedited.
The revision is allowed.