K.S. Lodha, J.
1. The police had put up a challan for offences Under Sections 420, 467 and 468, I.P.C. against the accused-petitioner Alarakh on the allegations that the accused had forged the documents in respect of a motor vehicle No. RSM 2893 (truck) and had also tampered with the chasis number and the year of manufacture, _etc., thereof. The learned Magistrate took cognizance of the offences and fixed the case for hearing arguments for framing charges against the accused. However, before the arguments for this purpose could be heard, the learned P.P. moved an application requesting the learned Magistrate to permit him to produce some more documents, namely, some complaints filed by one Asgar Ali to the Superintendent of Police, Pali and copies of the statements of certain witnesses recorded by the officer in charge out post Sojat Road in connection with the aforesaid reports. The learned Counsel for the accused objected to these documents being produced at this stage as according to him, they were not a part of the. police report filed Under Section 173(2) of the Cr. P.C. and at the time of framing charges, the Court was expected only to take into consideration the police report and the documents filed along with it. It is not.expected to take into consideration any other documents or evidence at that stage. The learned Magistrate partly agreed with the learned Counsel for the accused to the extent that these documents cannot be taken to be a part of the police report but at the same time, he disagreed with the other part of the argument of the learned Counsel for the accused and held that these documents can be taken into consideration at the time of framing charge as the court is empowered to not only look into the report and the documents filed by the police but also to afford a hearing to the prosecution as well as the accused. He, accordingly, allowed the learned P.P. to produce these documents. Aggrieved of this, the accused has come up before this Court.
2. I have heard the learned Counsel for the petitioner and the learned P.P. and have gone through the record.
3. The learned Counsel for the petitioner drew my attention to Sections 207, 238, 239 and 240 and urged that when a warrant case is instituted on a police report a copy of police report and the papers filed along with it have to be supplied to the accused as required by Section 207, Cr. P.C. The Magistrate has then to take into consideration the police report and the documents sent with it Under Section 173, Cr. P.C., and, if necessary, after examining the accused will proceed to consider whether a charge should be framed or not against the accused.
If he finds that the charge against the accused is groundless, he has to discharge the accused Under Section 239 but if upon such examination, if any, and hearing the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence...he shall frame a charge in writing against the accused. The learned Counsel urges that thus for the purpose of deciding whether the charge has to be framed or not, the Magistrate has to restrict himself to the documents filed along with the police report Under Section 173 and cannot allow the prosecution to produce any other documents at that stage. He further submits that by allowing the prosecution to produce more documents at this stage, the Magistrate has gone beyond his powers Under Sections 239 and 240, Cr. P.C. and, therefore, his order deserves to be quashed. On the other hand, the learned Counsel P.P. has urged that Sections 239 and 240, of course, refer to the police report and the documents filed along with it but that reference is not in exhaustive terms and does not restrict or prohibit the prosecution from bringing before the court any other material, which may be available to the prosecution to support its case against the accused. He further submits that Under Section 242, Cr. P.C., after the charge has already been framed, the prosecution is free to produce before the court documents and evidence which had not been placed before the court at the time of the filing of the police report and the documents with it and if that can be done even at the stage of evidence, there cannot be any restriction for producing the documents before the charge is framed because that will be in the interest of the accused so that he may know of the case, he has to meet when the charge is framed against him on the basis of whatever material is available at that time.
4. In rejoinder, the learned Counsel for the accused urged that Section 242, Cr. P.C., can be invoked at a later stage after the charge has been framed and its aid cannot be taken for producing more documents before the framing of the charge when those documents had not been filed along with the police report. He also urged that if the prosecution wants to file any other documents before the framing of the charge, they can resort to Section 173(8), Cr. P.C., but without that, they cannot produce documents, which had not been produced with the police report, before the framing of ' the charge.
5. I have given my careful consideration to the rival contentions. The scope of Section 173 in respect of the production of the documents at a later stage, after the police report had been filed, came up for consideration before the Hon'ble Supreme Court as also this Court and these decisions,' in my opinion, would throw good deal of light on this question. In Narayan Rao v. State of Andhra Pradesh : 1957CriLJ1320 , their Lordships while interpreting Section 173(4) and Section 207(a) as they stood before the amendment in 1973 observed as under :
It has rightly been contended on behalf of the appellant that it was the duty of the Magistrate to see that the provisions aforesaid of the Code, have been fully complied with. Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies.
But we are not prepared to hold that non-compliance with these provisions had, necessarily, the result of vitiating those proceedings and subsequent trial. The word 'shall' occurring both in Sub-section (4) of Section 173 and Sub-section (3) bf 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 Session, wholly ineffective.
Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the appellant will, necessarily, result in re-opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive to expeditious justice nor in the interest of accused persons themselves.
Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission, on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the court may re-open the proceedings by insisting upon full compliance with the provisions of the Code.
According to their Lordships, the word 'shall' occurring in Sub-section (4) of Section 173 and Sub-section (3) of Section 207A, was not mandatory but only directory. The same principle, in my opinion, must apply to the provisions of Section 238. The documents which could not be supplied to the accused Under Section 238 thus cannot be ruled out altogether for all times to come specially when Under Section 242(2), the Magistrate is free to take such other evidence which had not been collected by the police by the time it filed its report Under Section 173, Cr. P.C., as has been held by Hon'ble court in State v. Raghu Nath 1962 Raj LW 560 : 1963 (1) Cri LJ 848 and State v. Ganpat Lal 1969 Raj LW 537. That being so, it would be going too far in restricting the Magistrate only to the documents filed by the police Under Section 173, Cr. P.C., along with its report becaue after all Sections 238, 239 and 240 are only procedural and in matters of procedure, the justice cannot be bound. If there is some material available to the prosecution after the report Under Section 173 has been made and even before the charge is framed. It should be placed before the court and if; the Court finds it, to be relevant and admissible, under the provisions of the Evidence Act, it will certainly look into it and use it even for the purpose of framing the charge or refusing to frame the charge. The police report Under Section 173 cannot be deemed to be such a document, which cannot later on be supplemented. The very provisions of Sections 239 and 240, Cr. P.C., give the Magistrate power to go beyond the documents filed Under Section 173, Cr. P.C., because they not only authorise the Magistrate to consider the police report and the documents sent with it Under Section 173 but further to examine the accused if he thinks it necessary and also to give the prosecution and the accused an opportunity of being heard. It is only then that the Magistrate has to consider the question of framing or refusing to frame charge against the accused. The term 'hearing' also is significant because at times hearing does not only mean oral hearing but it also includes production of documents or evidence.
6. The scope of Section 173(4) which provides, for an obligation on the prosecution to furnish or cause to be furnished to the accused copy of all the documents on which it proposes to rely also came up for consideration before this Court in State v. Raghu Nath 1963 (1) Cri LI 848 (Raj) (supra) and it was observed, after referring to the Narayan Rao's case 1957 Cri LJ 1320 (SC) (supra) 'all that can be inferred from Sub-section (4) of Section 173 is that before the prosecution is allowed to put in additional document, it should furnish the copy of the same in advance to the accused so that he may not be prejudiced in his defence....' However, the provisions of Section 173 cannot be read to mean that the prosecution is prevented from putting in additional documents at the trial, copies of which had not been supplied to the accused.
7. I am, therefore, clearly of the opinion that the learned Magistrate has power to accept further documents even before the charge is framed provided they are relevant and admissible in evidence. The contention of the learned Counsel that the prosecution could file these documents before the framing of charge only Under Section 173(8) does not appeal to me because after all the purpose of investigations is to collect evidence and if the evidence is already available and can be placed before the Court, there should be no difficulty in producing the same before the learned Magistrate. The further contention that aid cannot be taken from the provisions of Section 242, Cr. P.C., at this stage also appears to be without substance. As already stated above, if documents can be produced before the Court even after the framing of the charge, there should be no objection to their being produced before the framing of the charge provided that they are admissible in evidence and are relevant because in that event, it will be for the benefit of the accused and he will be able to know what the material is against him for supporting the prosecution case and enabling the Court to frame a charge against him.
8. In the present case, however, the learned Magistrate has accepted the documents without considering whether they are relevant and admissible in evidence. It would have been better if he had considered this aspect of the matter before allowing the prosecution to produce them. However, now he will keep this aspect in mind while considering the matter for framing charge and shall take into account only those documents which are admissible in evidence under the Evidence Act.
9. For the reasons stated above, this application fails and is hereby rejected subject to the above observations.