STATE OF MAHARASHTRA Vs. J D DAROGA

JUDGEMENT

(1.) THIS is a reference under S. 438, Criminal Procedure Code, by the learned Sessions Judge, Thana, for revising the order passed by the Judicial Magistrate, First Class, Shahapur, by which order the learned Magistrate held that the prosecution was debarred from tendering the evidence of tour witnesses whom the prosecution intended to examine as additional witnesses.

(2.) THE facts necessary to be stated in order to dispose of the present reference are as follows : The prosecution alleged that on or about 10-3-1956, several offences were committed by five persons who were picnicking in the compound of the Special Bungalow at Tansa reserved for the Special Engineer, Bombay Corporation. The police raided the aforesaid premises at about 8 P. M. on the aforesaid date and the prosecution case is that at that time those five persons were found in possession of a bottle of whisky and some glasses. The prosecution also alleged that two of the aforesaid five persons, who held permits for liquor, abetted each other by permitting one or the other of them to consume liquor in respect of which they held permits. On these allegations, several charge-sheets were sent against the aforesaid five persons. Out of them, seven cases' were consolidated by the learned Magistrate and ordered to be tried as one case. It is not necessary for me at the present stage to mention the case numbers, the persons named as the accused in those cases and the sections under which they were being prosecuted by the prosecution. It is only enough for me to state that the consolidated case was being tried as a summons case. The plea of all the five accused persons was recorded on 4-9-1956 under S. 242, Criminal Procedure Code, all the five accused persons pleaded not guilty to the charges and claimed to be tried. The evidence of those persons whose names were mentioned as witnesses in the charge sheets was thereafter recorded. However, on 26-9-1956, the prosecution presented an application Ex. 22, by which it prayed for permission to examine the wit-nesses named therein. However, no orders were passed by the learned Magistrate on the aforesaid application. The defence urges that it had no knowledge about the presentation of the application Ex. 22 on the date on which it was presented, and that it came to know about the existence of the aforesaid application only on or about 15-1-1957 on which date another application, to be presently mentioned, was presented by the prosecution. It appears that the learned Magistrate did not pass any orders on the aforesaid application on 26-9-1956. However, the case was taken up for hearing on some subsequent dates and it appears that three out of the aforesaid new witnesses came to be examined during the course of the trial. These three additional witnesses were - (1) Raje, Police Photographer. (2) Shah, and (3) Demello. Raje was examined in chief on 27-10-1956 and cross-examined on 21-11-1956. The other two witnesses Shah and Demello were examined on 15-1-1957 and there was no cross-examination. On 15-1-1957, the prosecution presented another application by which it sought permission to examine one Shah. It appears that the prosecution when this application was presented, also, prayed that the three remaining witnesses mentioned in the previous application Ex. 22 should also be examined by the learned Magistrate. On this an objection was raised by the defence. The grounds of objection have been embodied in the reply dated 22-1-1957 which was given by the defence. On this the learned Magistrate fixed the case for hearing the arguments of both the sides regarding the examination of the aforesaid four additional witnesses. The arguments were heard on 29-1-1957 and the learned Magistrate decided on that day that the prosecution had no right to examine the aforesaid additional four witnesses. The defence attacked the prayer of the prosecution for an examination of the aforesaid four additional witnesses mainly on two grounds. The first ground was that having regard to the provisions contained in sub-s. (4) of S. 173, Cri. P. C, the prosecution had lost the right of examining all the aforesaid four witnesses. It is common ground that before the commencement of the trial, i. e. before 4-9-1956. the defence had not been supplied with copies of the police statements of the aforesaid four additional witnesses. The names of all the four additional witnesses who were sought to be examined by the prosecution are: (1) Salunke, (2) Subramanian, (3) Pandit and (4) Shah. It appears that no police statement of Salunke was ever recorded by the police. However, he was one of the panchas who accompanied the police at the time of the raid which resulted in the present case. Mr. Ghaswalla, the learned counsel for the accused, stated to me that he had no objection to the examination of Salunke by the prosecution, and he stated that, at no stage in the present case he had ever objected to the examination of this witness. He conceded that a copy of the panchanama, which was made at the time when the aforesaid raid was effected, of which Salunke was the panch, had already been supplied to him before the commencement of the present trial. It appears that the police statements of Subramanyan were recorded on 30-8-1956 and 31-8-1956. Application Ex. 22 contained a statement that the police statements of this witness had been supplied to the learned counsel for the defence. However, this stated ment is being challenged by the defence. It does not appear quite clearly from the record as to on what date copies of the police statements of Subramanyan were given by the prosecution to the learned counsel for the defence. However, it is admitted by Mr. Ghaswalla that the copies of the police statement were given in any case before 29-1-1957, the date on which the learned Magistrate passed the impugned order. It is clear from the record that the police statement of Pandit was recorded on 10-9-1956. It is also not disputed that a copy of his police statement was supplied, to the learned counsel for the defence before 29-1-1957. The police statement of Shah appears to have been recorded on 21-11-1956. Mr. Ghaswalla states that a copy of the police statement of Shah has not still been supplied by the prosecution to the defence. On the aforesaid facts, the defence raised two contentions. The first contention was that, as the copies of the police statements of two out of the four additional witnesses' were supplied after the commencement of the trial and the copy of the police statement of one of the witnesses has not been supplied at all, the prosecution is debarred from tendering the evidence of the aforesaid three witnesses. The second contention was that the evidence which the aforesaid witnesses proposed to give was irrelevant, and, therefore, no permission should be granted to the prosecution to examine the aforesaid witnesses. Mr. Ghaswalla has distinctly admitted in this Court that he has no objection to Salunke being examined by the prosecution. But he contends that, on the two grounds mentioned by the learned Magistrate, the learned Magistrate was right in holding that the prosecution was not entitled to tender in evidence the statements of the additional three witnesses.

(3.) THE prosecution feeling aggrieved by the aforesaid order of the learned Magistrate went in revision to the learned Sessions Judge at Thana. The learned Sessions Judge considered the aforesaid two objections raised by the defence. He disagreed with the finding of the learned Magistrate that under S. 173 (4), the prosecution was debarred from tendering the aforesaid additional evidence. He also disagreed with the finding of the learned Magistrate that the evidence which the aforesaid four witnesses proposed to give was irrelevant. A third point was also raised before the learned Sessions Judge, and that was that the aforesaid impugned order having been passed by the learned Magistrate, at an interlocutory stage, even if the learned Sessions Judge disagreed with the view expressed by the learned Magistrate, he should not make a reference to the High Court on the ground that the High Court normally would not interfere with an order passed at an interlocutory stage even if the order was wrong. The learned Sessions Judge, however, came to the conclusion that the point relating to S. 173 (4) of the Criminal Procedure Code was of general importance, and that the learned Magistrate having treated the point relating to the admissibility of evidence in a casual manner, this was a fit case in which reference should be made to the High Court for revising the order of the learned Magistrate. Accordingly the learned Sessions Judge has made the present reference.