BASUDHAR MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN course of trial before the learned Assistant Sessions Judge, learned Associate Public Prosecutor for the prosecution filed an application to call for (i) X - Ray plate, (ii) X -Ray report, (iii) Admission register, (iv) Out -door ticket, (iv) Bed head ticket, (vi) Blood donation ticket and (viii) Discharge certificate from Beste Primary Health Centre and from Balasore District Headquarters Hospital and to summon Dr. P. Sahu (P.W. 7) for further examination in court with regard to these documents. Learned Assistant Sessions Judge having allowed the prayer this revision application has been filed.

(2.) PETITIONERS are being prosecuted on police report. In such a case before submission of charge sheet, police makes investigation. In course of investigation statements of persons are recorded and documents and material objects are seized. While submitting the report to the Magistrate under section 170, Cr.P.C. the police officer is to send all the documents or relevant extracts thereof as required finder section 173 (5), Cr. P.C. Accused is to be furnished with copies of the same as provided in section 207, Cr. P.C. subject to exception. Thereafter, an offence exclusively triable by a Court of Session is committed to it under section 209, Cr. P.C. Magistrate thereupon is to send the record of the case and the documents and articles, if any, which are to be produced in evidence.

(3.) MR . Kar relied upon the decision in Arjuna Kumar Pujhari v. State of Orissa1 and submitted that the learned Sessions Judge having no power to receive a document directly from the Investigation Officer cannot call for the same. In the said decision it has been clearly laid down that a narrow interpretation of section 173 ought not to be given and the further report is to be submitted to the Magistrate who shall forward the same to the Court of Session to which the accused is committed. Patna decision short noted in State of Bihar v. N. Nagmani2 taking a view that the report cannot be received was dissented from and the decision of Karnataka High Court in G. E. Narayana v. State of Karnataka3 was relied upon. The view I am taking is to further the decision reported in 66 (1988) C.L.T. 476 (supra) and not inconsistent with it.