This is a revision case filed by the State against the order of the Eighth Presidency Magistrate under the following circumstances. The police filed a charge-sheet against the accused for an offence under Section 325 I p, C. Being a warrant case it is triable under the provisions of the warrant chapter. Section 251-A Cr.PC is the provision which governs the trial of warrant cases instituted on police complaint. At the time of films; the charge sheet the prosecution furnished or caused to be furnished to the accused copies of statements which were in the case diary.
In the case diary they were recorded in English. Copies of these statements were given. In the course of the trial when the investigating officer was in the witness box he gave evidence that he recorded statements in tail in a pocket book. It has been pointed out in an earlier judgment of this Court that these statements are really the statements under Section 162 Cr P C, and therefore under Section 173 (4) Cr.PC 'it is copies of these statements that should have been furnished and not merely the copies of the translations.
Realising the importance of this the Assistant State Prosecutor immediately obtained copies of the Tamil statements and filed them in court and requested the court to have the same furnished to the accused. But the Magistrate on the ground that these statements should have been filed before the commencement of the trial itself refused to have these documents furnished to the accused.- It is true that under the provisions of Section 251-A CriPC read with Section 173 (4) CrIPC statements made by witnesses to the police should be furnished before the commencement of the enquiry or trial. The statements [ have always been understood as meaning state-1 ments first made by the witnesses, when they' are so recorded.
In this view there is no doubt that the copies of these Tamil statements should have been furnished even before the commencement of the enquiry. But the practice has been to translate the statements into English in the case diary and it is copies of these statements that are furnished to the accused as statements made by the witnesses under Section 161 (3). But when it transpires that there are statements recorded in the language in which the witnesses gave them and that they are available, it is copies of these-' statements that should be furnished.
In the interests of justice it is the duty of the court to see that copies of these statements are furnished to the accused and in order that prejudice may not be caused, to the accused the court must give an opportunity to the accused to cross-examine the witnesses who have already been examined, on these new statements as well. That is all what is necessary when these statements were not given in the first instance itself to the accused. Merely because these statements were not given in the first instance though in fact the statements purporting to be made under Section 161 (3) were given it does not mean that these statements are not to be received at all by the accused and that the Court has no power therefore to insist on the furnishing of the statements-to the accused.
In my opinion although these statements; were not given in the first instance, when they were Riven before the case was over it was the duty of the court to have copies of these statements furnished to the accused and give an opportunity to the accused to cross examine the-witnesses who have already been examined and then dispose of the case according to law. The order of the lower court, is set aside and the lower court is directed to cause these statements to be furnished to the accused and give an opportunity to the accused to cross examine the witnesses already examined, on the strength of these statements and then dispose of the case according to law.