MUNSHI SINGH Vs. STATE

JUDGEMENT

(1.) A preliminary inquiry is in progress in the Court of a Magistrate, First Class, Shahjahanpur against a number of accused. When the first prosecution witness, the complainant, had been examined in chief, the learned counsel for the accused presented an application to the Court requesting for the production of the various post mortem reports, the injury reports, the site plan and the recovery lists by the prosecution so that he be in a position to cross-examine the witnesses effectively. The prosecuting inspector was asked to report on the application. He filed the post mortem and the injury reports and stated that the other documents would be filed at the time of the examination of the witnesses proving those documents. The learned Magistrate then ordered that application to be filed. Against that order the applicant, one of the accused, went in revision to the Sessions Judge of Shahjahanpur. He was of opinion that the accused had a right to have all the exhibits put in for the purpose of enabling them to cross-examine the prosecution witnesses and that the accused would be otherwise prejudiced, particularly in this case where, according to the prosecution, there were three places of occurrence. He, therefore, made a reference to this Court for the setting aside of the order of the learned Magistrate and for ordering the prosecution to file the papers required by the accused.

(2.) I have heard the learned counsel for the applicant and for the State and am of opinion that the reference should be rejected.

(3.) THERE is no provision of any law which makes it incumbent on the prosecution to produce the documents on which it relies at the first hearing of the case or to produce them when the other party, that is the accused, desires them to be produced. The prosecution can produce its witnesses in any order it likes, and similarly can produce the documents at any stage of the case it likes. In fact, documents cannot come on the record as mere papers. They come on the record after they are duly proved and a document will be duly proved either when under the provision of law it requires no formal proof or when the witness proving the documents is examined and proves that document. When the prosecution is its own judge of the order in which witnesses are to be produced, it follows that documents which require to be proved can lawfully come on the record only when the witnesses who prove those documents are examined and that therefore the stage for the coming on the record of the provable documents will be in the discretion of the prosecution, and the accused cannot force the prosecution to produce any documents at any stage. In fact, even if a certain document which requires to be proved happens to be among the papers which are before the Court, it would, in my opinion, be the bounden duty of the Court not to refer to that document until it has been duly proved and marked as an exhibit. It is a different matter that such paper on the file, though not proved, might be seen by the accused or his counsel and he may then use the information so obtained for any purpose to which he can put it lawfully. I, therefore, see nothing wrong in the conduct of the prosecuting inspector in not producing the documents or in the order of the learned Magistrate to file the application presented on behalf of the accused.