PUBLIC PROSECUTOR Vs. C D NAIDU

JUDGEMENT

(1.) This is an appeal by the State against an order of acquittal. Each of the 17 respondents was charged under two counts -- one under Section 143 I. P. C. and another under Section 341 J. P. C. The learned District Munsiff-cum-First Class Magistrate rejected the evidence of all the prosecution witnesses except two which he did not take into consideration because he thought it was not "relevant and admissible". It is best to state his reasons in his own words.

(2.) In my opinion, the learned Magistrate has misdirected himself in reaching this conclusion. It is not obligatory on the part of the investigating officer to reduce into writing any statement made to him in the course of his investigation under Section 161 Cr. P. C. nor is it necessary that he should have examined every person who is later cited as a witness by the prosecution. The obligation imposed by Section 173 is limited to the furnishing of copies of statements recorded under Sub-section (3) of Section 161 Cr. P. C. "of all the persons whom the prosecution proposes to examine as its witnesses" as stated in Sub-section (4) of Section 173 Cr. P. C. This provision only means that if statements have been recorded under Section 161 (3), then the statements of such persons as the prosecution proposes to examine as witnesses should be given to the accused. Among the persons from whom statements are taken under Section 161 (3) there may be persons, who are not later cited by the prosecution as witnesses in which case the statements of such persons need not be given to the accused. Section 173 Cr. P. C. is not to be read as disabling the prosecution from examining a witness who has not been mentioned in the charge sheet or whose statement has not been recorded under Section 161 (3). The right of the accused to use a statement in the manner mentioned by the proviso to Section 162 is limited to the statements actually taken under Section 161 (3). He is further not entitled to all the statements recorded; nor can he say that the statements of all persons who have been examined by the police should have been reduced into writing. He cannot insist that no witness shall be examined at the inquiry or trial by the prosecution whose, statement has not been reduced into writing. It may also be pointed out that the learned Magistrates view that the provisions of Sec, 173 (4) Cr. P. C. are mandatory is not right in view of the decision of the Supreme Court in Narayan Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 737, in which their Lordships observed that

(3.) In the above view, the learned Magistrate was in error in refusing to take into consideration the evidence of these witnesses. The evidence has been read over to me and after a careful consideration of their evidence. I have reached the conclusion that the case for the prosecution has been established against all the respondents under both the counts