1. I think the order cannot be upheld. It has not been shown that the accused petitioner had any such definite knowledge of the petition given by the complainant to the District Magistrate, its date or its contents that he could have produced it sooner than he did. The learned Sub-Magistrate is wrong in saying that Section 510 Criminal P. 0., relates only to 'important documents overlooked by the Prosecution.' It is equally available to the defence and it is mandatory if the evidence appears to the Court to be essential to a just decision of the case. The learned Sub-Magistrate does not discuss the latter aspect except where he says that 'omissions are not contradictions.' He has authority for this in the decision of a single Judge of this Court, Burn, J., reported in Ponnuswami Chetty v. Emperor 1933 Mad 372. In a re-cent Sessions case I expressed my respectful dissent from this proposition as too wide but of course the learned Sub-Magistrate cannot be found fault with for following the reported case of this Court.
2. Even that however is only one aspect of the matter for the petition is relevant with reference to the conduct of the complainant. The learned Sub-Magistrate is wrong in saying that the petition cannot be called a previous statement for it is alleged to have been given on 5th May 1933 and the complaint before Court was on 8th May 1933. I think the re-calling of the complainant with reference to this petition was essential to the just decision of the case and the mistaken view which the lower Court took that this section applies only to the Prosecution evidence naturally prevented any real consideration by the Court as to whether it was essential to the just decision of the case or not. This petition is allowed.