Debabrata Mookerjee, J.
1. This is a reference by the learned Sessions Judge of Jalpaiguri under Section 438 of the Code of Criminal Procedure recommending that an order of a Magistrate dated 20-9-1956, declining to issue processes for the attendance of threewitnesses for examination by the prosecution, be set aside.
2. It appears that the accused was being tried on a charge under Section 324 of the Indian Penal Code in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure. Copies of necessary documents were furnished to the accused under the provisions of Section 173 (4) of the Code. The case was eventually set down for hearing on 20-9-1956. On that date, an application was filed by the court sub-inspector in charge of the conduct of the prosecution, praying that three witnesses be summoned to give evidence in the case. The learned Magistrate refused the prayer on the ground that none of these witnesses had been examined by the police during investigation and their statements consequently had not been recorded under Section 161 of the Code. Obviously the learned Magistrate was under the impression that Section 173 (4) provided a bar to the examination of any person at the trial whose statement was not to be found in the police, diary. Against the order of the Magistrate, the Sessions Judge was moved, and he has made this Reference recommending that the Magistrate's order, dated 20-9-1956, declining to issue processes for the attendance of these witnesses be set aside. I think the Reference is well grounded and should be accepted.
3. Section 173 (4) of the Code of Criminal Procedure provides that the officer-in-charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1), of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164, and the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses. The learned Magistrate seems to think that this is a provision designed to benefit the accused person by giving him an advance copy of the statements which the witnesses have made against him during investigation. Obviously copies of all police papers, including the first information report and confessions and statements of witnesses examined by the police during investigation are Intended to be given to the accused for his benefit. The question arises whether this provision of the law implies that the prosecution is prevented from calling any witness at the trial who has not been examined by the police or whose statement has not been recorded by them under Section 161 of the Code. In my view, it was not the intention of the legislature to shut out relevant evidence by enacting Sub-section (4) of Section 173 of the Code. The purpose might have been to benefit the accused by giving him in advance, copies of the documents and statements referred to in the sub-section; but that could not possibly have the effect of preventing the prosecution from calling other competent evidence at the trial.
4. Reference may be made to Section 251-A of the amended Code of Criminal Procedure which provides that after the accused has been given copies of documents and papers referred to in Section 173 (4) and after hearing the parties, if the Magistrate is of the view that there is ground for presuming that the accused has committed an offence which he is competent to try and adequately punish, it shall be his duty to frame a charge against the accused. If thereafter the accused claims to be tried, theMagistrate has to fix a date for examination of witnesses; Sub-section (7) provides that on the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. There is a proviso attached to the sub-section which says that
'the Magistrate may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination.'
The question arises whether in view of Sub-section (7) of Section 251-A, the prosecution is to be limited to examining only such persons as have already been examined by the police and whose statements have been recorded in accordance with the provisions of Section 161 (3) of the Code. The learned Magistrate's view seems to be that If examination was permitted of persons at the trial whose statements have not been recorded by the police, that would take the accused person by surprise and prejudice the defence. A trial, in order to be fair, has to be so both to the prosecutor and to the accused. If the prosecution is to be restricted to examining only those persons whose statements have been recorded by the police, that might very much affect Proof of the charge brought against the accused. The real purpose of Section 161 (3) taken along with Section 173 (4) of the Code seems to be that the accused should be given a fair treatment by being told what the case against him is and by apprising him of the fact that certain persons have furnished to the police materials for his prosecution. It is, of course, true that when those Previous statements are proved according to law, they may affect the value of the evidence in Court. But the mere fact that the police did not consider witness material during investigation or collection of evidence, will not, in my view, preclude the prosecutor from asking for or the Magistrate from calling such witness at the trial. The language of Sub-section (7) of Section 251-A seems to me to be purposely wide so as to enable the prosecutor to produce all such evidence as may be produced in support of the prosecution. If we are to read 'all such evidence' in the sub-section as meaning only such evidence as relates to those of persons who have been examined by the police, it will be reading into the sub-section something which is not there. I do not think Sub-section (4) of Section 173 controls Sub-section (7) of Section 251-A of the Code. Moreover, a Magistrate in the discharge of his judicial functions must always be left free to exercise his discretion in the matter of allowing parties to produce evidence. The exercise of that discretion is controlled and regulated by various factors, one of them being the factor of admissibility of evidence. But if in the interests of justice, the Magistrate feels that the prosecutor should be allowed to examine a witness whose statement has not been recorded by the police during investigation, I do not think it would be right to limit the prosecution to producing evidence of only such persons as have been examined by the police during investigation. Further it seems clear that the proviso attached to Sub-section (7) of Section 251-A gives the Magistrate power to defer the cross-examination of a witness until a future date. That obviously prevents the accused from being taken by surprise so that he can if so permitted cross-examine the new witness on a later date upon his examination-in-chief. In my view it could not have been the intention of the Legislature to limit the operation of Sub-section (7) of Section 251-A by compellingthe prosecution to confine itself to the evidence of only those persons whose statements have been recorded by the police.
5. There is yet another aspect of the matter. If the rule of Section 173 (4) of the Code is to be considered irrelaxable, then Section 540 would be-come otiose. That section provides that any Court may, at any stage of any inquiry, trial or other proceeding under the Code summon any person as a witness or examine any person In attendance, though not summoned as witness, or recall or re-examine any person already examined, provided that the Court is satisfied that the evidence of such witness is essential to a just decision of the case. The magistrate's view of Sub-section (4) of Section 173 taken along with Sub-section (3) of Section 251-A would perhaps affect even Section 540. I cannot pursuade myself that this was ever the intention of the Legislature to rob the prosecutor of the means of proving his case by calling relevant and useful evidence or to rob the Court of its power of doing complete justice between party and party by limiting the citation of evidence in the manner suggested by the Magistrate in the order in question. I think despite Sub-section (4) of Section 173 of the Code of Criminal Procedure a prosecutor has the right to examine a witness whose statement has not been recorded by the police under Section 161 (3) of the Code, and certainly the Court has power under Section 540 to examine or recall or re-examine any person whose evidence appears to the Court to be essential to a just decision of the case. The structure of evidence in Court cannot always be a mere replica of statements during investigation.
6. In the result, the order of the Magistrate, dated 20-9-1956, is set aside and he is directed to proceed in accordance with law and in the light of the observations made above. The Reference is accordingly accepted.