STATE OF GUJARAT Vs. CHAMPAKLAL SOMABHAI SONI

JUDGEMENT

(1.) The learned Sessions Judge Broach recommends that the order of the learned Judicial Magistrate First Class Jambusar refusing to allow the prosecution to examine its witness one Mr. Gohel P. S. I. be set aside. The learned Magistrate refused permission to the prosecution to examine the witness on the ground that the statement was not supplied to the accused as required by sec. 173 of the Cr. Pro. Code.

(2.) If we turn to section 251A of the Cri. Pro. Code it is clear that the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. At the same time we must remember the provision of sub-section (4) of section 173 of the Cri. Pro. Code. Under that sub-section the police ate bound to give copies of all statements recorded under sub-section (3) of sec. 161 of the Cri. Pro. Code of all persons whom the prosecution proposes to examine as its witnesses. Ordinarily the prosecution must record the statements of all witnesses whom it proposes to examine as it witnesses. In this case however no statement of Mr. Gohel under sec. 161 of the Cri. P. C. has been recorded. The failure to comply with the provisions of sub-sec. (4) of sec. 173 of the Cr. P. C. cannot affect the provisions of sub-section (7) of sec. 251A of the said Code which provides that on the date fixed for hearing the Magistrate shall proceed to take all such evidence as may be produced in support to the prosecution. The provision in sec. 173 of the Cri. Pro. Code requiring the police to give copies of statements to the accused has been introduced because the whole procedure has been simplified. The failure to comply with the provisions of sub-section (4) of sec. 173 of the Cr. P. C. may affect the value of evidence. But it cannot affect the mandatory character of sub-sec. (7) of section 251A which provides as under:-- On the date so fixed the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution.

(3.) The order of the learned Magistrate is therefore set aside and he is directed to allow the prosecution to examine Mr. Gohel as a witness. It is open to the Magistrate to attach any value he thinks proper to the evidence of Mr. Gohel.