V S RAMANATHAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE accused in C. C. No. 12350 of 1955 on the file of the IVth Presidency magistrate is the petitioner herein. The circumstances under which this criminal revision petition is filed are these : on 1-12-1955, the City Police filed a charge-sheet against the petitioner, that is, the accused in the above case for an offence under S. 420 I. P. C. The accused appeared on 12-3-1956. The case was adjourned to 17-31956 for furnishing to the accused copies of documents referred to in section 173 (4) Crl. P. C. No documents were furnished on the 17th and so the case was adjourned to 20-3-1956 when copies of certain documents alone were made available to the accused. On the 20th after hearing the prosecution and the counsel for the accused a charge was framed for an offence under Section 420 I. P. C. without examination of any of the witnesses cited in the charge-sheet. The accused pleaded not guilty to the charge and then the case stood adjourned to 3-4-1956 for examining witnesses on the prosecution side. In the charge-sheet only four witnesses were examined. They were (1) Parmar; (2) Chandra; (3)Rajagargh; (4) Venugopal. On 3-4-1956 P. W. 1 (that is, the first mentioned witness in the charge-sheet) the complainant in the case was present but as he did not know any language other than Gujarathi the case was adjourned to 4-4 1956, for getting a Gujarathi translator. On 4-4-1956 with the assistance of the gujarathi interpreter of the High Court, P. W. 1 was examined and Exs. P. 1 to P. 17 were marked. On the same day Rajgargh, the third mentioned witness in the charge-sheet was given up by the prosecution and an additional list of witnesses was filed for whom the magistrate directed issue of summons. The case then stood adjourned to 17-4-1956. On 17-4-1956, as no witness turned up fresh summons were ordered to all the witnesses except to N. C. Chandra the second mentioned witness in the charge-sheet. He was directed to be examined on commission. The case was again adjourned to 27-4-1956. This court in Crl. R. C. No. 466 of 1956 quashed the order of the Magistrate directing the examination of Chandra on commission, for the reasons mentioned therein. The case underwent several adjournments and stood finally posted to 10-5-1956 for examination of witnesses mentioned in the additional list filed on 4-4-1956. The names of witnesses mentioned in the additional list and who were sought to be examined were Jadawla, Mathurdoss, Thakore and Narayan Nair. Among these additional witnesses to be examined the first mentioned witness, Jadawla was given up. The second mentioned person Mathurdoss was examined as P. W. 2 on 10-5-1956 and Exs. P. 18 to P. 33 were marked. The case was then adjourned to 23-5-1956 when the third and the fourth witnesses mentioned in the. list, Thakore and Narayan Nair were examined as P. Ws. 3 and 4 and Exs. P. 24 to P. 31 were marked. On the same day, that is, on 23-5-1956 the prosecution filed another list of witnesses and asked that summons should be issued to them. The witnesses sought to be summoned are Nara-yana Rao and Chittibabu. The accused raised an objection to the examination of these additional witnesses but his objection was overruled and it is against this order of the lower court rejecting the objection of the accused to the examination of the additional witnesses whose names were furnished on 20-3-1956 that the present revision case has been filed. It is alleged and conceded by the prosecution that these two witnesses, viz. , narayana Rao and Chitti Babu were not examined by the police during the investigation and that, therefore, no statements were recorded from them under section 161 (3) Crl. P. C.

(2.) SO far as P. Ws. 1 to 4 are concerned, it is alleged that copies of statements of p. Ws. 1 to 3 recorded under Section 162 Crl. P. C. were granted to the accused but that no copy of the statement of P. W. 4 was furnished. P. W. 4 is one of the investigating officers in the case. He would not have been examined in the case and any statement of his can only be with regard to his conclusions on his investigation into the case. As it can only be in the nature of an opinion copy of this document need not be furnished to the accused; but as regards P. Ws. 1 to 3 copies of their statements under Section 162 Crl. P. C. have been given to the accused and therefore no question arises about them. It is only with regard to the last two named witnesses who were sought to be examined by the additional list filed on 20-3-1956, objection is taken to their examination. It is alleged and it is not disputed that P. Ws. 1 to 4 do not connect the ac-cused with the crime charged against him and it is only by the examination of the last mentioned witnesses that the accused is sought to be connected with the offence. The question is whether in these circumstances the two witnesses whose names have been furnished in the list filed on 20-3-1958 could be allowed to be examined by the prosecution. This question would not have presented any difficulty before the amendment of the Criminal Procedure Code by Act XXVI of 1955. The Criminal Procedure Code has been amended by the abovementioned Act with a view to facilitate expeditious disposal of cases. In an attempt to achieve this object the interest of the accused has not been overlooked. Very many important changes have been introduced in the matter of procedure to be followed in the inquiry before com-mittal and in the trial of warrant cases.

(3.) IN the trial of wanant cases with which alone we are concerned at present, a new procedure has been prescribed with regard to cases in which the police file charge-sheets under S. 173 (1) Crl. P. C. This is kid down in Section 173 (4) and section 251-A Crl. P. C. Section 252 lays down the procedure with regard to trial of warrant cases which are instituted other than on police reports. In cases where the police file charge-sheets under Section 173 (4) Crl. P. C. a duty is cast on the prosecution to furnish or cause to be furnished to the accused copies of documents mentioned therein free of cost before the commence-ment of the inquiry or the trial. Most of the documents referred to in Section 173 (4), including the statements and confessions recorded under Section 164 Cri. P. C. were, before the amendment of the Code, furnished to the accused only on application and on payment of the necessary cost by him. As regards 162 statements, they were granted to the accused only after the witnesses were put into the witness box and that too only on application by the accused. By the present amendment this obligation on the part of the accused to apply for copies of these documents is dispensed with. The legisla-tare has enjoined on the prosecution to furnish copies of the statements and the other documents free of cost to the accused and that too before the commencement of the inquiry Or trial. Further before the Criminal Procedure Code was amended by Act XXVI of 1955, the accused had a right to cross-examine the witnesses before a charge was framed against him and also after the framing of the charge. This double right to cross-examine the prosecution witnesses has now been taken away by the above amendment in respect of cases instituted on police reports though that right is still retained with regard to cases instituted other than on police reports. This case being a police charge-sheet case the discussion will be confined only to this class of cases. Prior to the amendment of the Criminal Procedure Code in such cases the accused had a right to reserve cross-examination of witnesses, till after the charge was framed but the charge itself was framed only after the examination if all or some of the witnesses for the prosecution. It may even be after the examination of one witness hut under no circurnstances can a charge be framed without the examination of any of the witnesses. In short, the accused was made aware of the ease against him by the evidence of important witnesses given in court which enabled him to prepare his defence. The accused thus had a picture of the case against him and his right to further cross-examine witnesses was exercised to meet such a case and in support of his defence. Now under Clause (3) of Section 251-A, Crl. P. C. , without examining any of the witnesses and without recording any evidence, the Magistrate may frame a charge against the accused merely on a consideration of the documents referred to in Section 173 of the Code after giving the prosecution and the accused an opportunity of being heard. In the place of evidence which formerly must be given in Court and which was subjected to cross-examination before the framing of the charge, the Legislature has enjoined on the prosecution by the provisions of Section 173 (4), Crl. P. C. , to furnish or cause to be furnished to the accused copies of documents referred to therein before the commencement of the trial or the inquiry as the case may be. Not only is this duty cast on the prosecution but there is a fur-ther obligation cast on the Court to satisfy itself that copies of documents referred to in Section 173 (4), Crl. P. C. , have been granted and if not the Ma-gistrate shall cause them to be furnished to the accused. Furnishing copies of these documents prior to the commencement of the trial or the inquiry is thus ensured. By this procedure even before the commencement of the trial the accused is given an opportunity of knowing the entire case against him which will enable him to defend his case properly. This provision of directing copies of documents referred to in Section 173 to be furnished to the accused before the commencement of the trial is a compensation as it were for taking away the right which the accused enjoyed before the amendment of the Code. This advantage which the Legislature has in its wisdom thought fit to confer on the accused as compensation for the deprivation of the right which he enjoyed before cannot, in any manner, be whittled down. This advantage is really a right conferred on the accused by the Statute and no one has any right either to deprive the accused of that right or undermine it or water it down in any manner under the guise of exercising some other power under the Code. The provisions of the amended Code referred to above, have therefore to be strictly construed and not in any manner which is likely to derogate, from the rights conferred on the accused.