1. These are revisions against the order passed by the Hard Presidency Magistrate under the following circumstances. The accused is prosecuted for an offence under Section 409, IPC The prosecution in compliance with the provisions of Section 173, Cr.PC furnished in the first instance certain documents, on which they proposed to rely. On the basis of those documents, after questioning the accused, charges were framed.
Subsequently the prosecution felt the need to furnish some more documents on which they were going to rely. They supplied those documents to the accused, but the accused refused to receive the same. Thereafter, the prosecution filed an application before the Court asking the Court to direct the accused to receive these documents. The application is an extraordinary one. I can understand an application by the prosecution for permission to tender those documents; but an application to compel the accused to receive those documents is something which I have not heard of.
But the most relevant documents both from the point of view of the prosecution as well as of the defence, even if tendered by the prosecution to the advantage of the accused, can well be refused by the accused. The only disadvantage of the accused thereafter is that he cannot complain later that he was not furnished copies of the documents for the pur pose of cross-examination. But no one has got a right to compel the accused to receive anything from the prosecution, except the punishment which the Court may inflict when he is found guilty.
But the learned Magistrate has gone one step further and held that the prosecution cannot even file these documents, as they were not tendered in the first instance. In this the learned Magistrate has erred. It is true that it is the duty of the prosecution to furnish in the first instance itself under the provisions of Section 173 all the documents on which they rely. But, in the course of the trial, if the prosecution think it necessary to file additional .(documents or statements of witnesses on whiny they propose to rely, the section does not prevent them from filing them.
They are entitled to file such documents, the only obligation being that they must be given in advance to the accused, so that he may be enabled to make use of the documents to his best advantage. The Magistrate is therefore not correct in holding that the prosecution is not entitled to file these documents. But in terms of the prayer in the petition. I must say that no Magistrate can compel the accused to receive any documents that are given or tendered to him by the prosecution.
But the conduct of refusal must be noted by the Magistrate so that the accused may at afterwards turn round and raise an argument that the documents have not been tendered to him and he has been prejudiced thereby. I do not think, however, that the Court has any power to compel the accused to receive whatever document that is given by the prosecution. If he does not receive it, he has to suffer; but the prosecution cannot be penalised for his refusal to receive the document.
2. The petitions are therefore allowed. The documents will be tendered by the prosecution and if the accused refuses to receive the same, a note of it will be made by the Magistrate and the accused will not be permitted afterwards to base any argument on the ground that these documents have not been tendered to him.