DHARAM PAL Vs. STATE

JUDGEMENT

(1.) THIS is revision application by Dharampal, accused, to challenge an order dated 3 -8 -1973 of Chief Judicial Magistrate, Srinagar, whereby he has allowed the prosecution to file a supplementary list of witnesses and documents.

(2.) SECTION 173(4) provides that, before the commencement of an inquiry or trial, the prosecution shall furnish or cause to be furnished to the accused copies of documents, on which it proposes to rely, including the statements recorded under section 161 Cr. P.C. of all the persons whom it proposes to examine as its witnesses. The object of this section is to apprise the accused at the earliest opportunity of the case against him and the evidence, oral and documentary, in support thereof which the prosecution seeks to rely upon. The requirement flows from the concept of fair trial which the Code is designed to achieve. The concept cannot however be one -sided. Its benefit should be available to the prosecution as much as to the accused. The prosecution should have reasonable opportunity to prove its case just as the accused should have reasonable opportunity to defend himself. Accordingly section 173(4) cannot be construed to create a barrier against the prosecution producing additional documents or witnesses at the inquiry or trial which, though relevant, were not cited in the challan when it was first presented before the court, whatever might be the reason for the omission. The only requirement to which such production can be subject is that a copy of such document or of the statement of the witness, if recorded by the police, should be made available to the accused and, where necessary, the court might reca11 any witness, already examined, for further cross -examination. Any other construction would stultify the provisions of sub -Section 7 of section 251 -A which provides that a magistrate shall proceed to take all such evidence as may be produced in support of the prosecution adding by its proviso that he may recall any witness for further cross -examination. The two Provisions, according to the rules of interpretation of statutes, must be read harmoniously. So read it must, therefore be held that the prosecution is not debarred from producing any witness or document at the inquiry or trial even if such document or witness is not mentioned in the list of witnesses and documents filed with the report under section 173 Cr. P.C - provided that the additional document or witness is relevant and provided further that a copy of the document or of the statement of the witness, if recorded by the police, is made available to the accused. In order to avoid prejudice to the accused, the court may, in appropriate cases, even, recall any witness already examined with a view to enabling the accused to further cross -examine him in the light of the additional evidence proposed to be produced by the prosecution. The right of the prosecution to produce additional witnesses or documents should not however be construed to include the right to compel the accused to produce any document or appear as his own witness. I make this observation because, in the present case, the prosecution has inter -alia asked for the production of a document by the accused which, the learned Additional Advocate General frankly conceded, could not be validly ordered, as done by the trial Magistrate.

(3.) IN the view I have expressed above I am supported by the decision of Rajasthan High Court in State V. Raghunath (AIR 1963 Raj: 85) in which it was held : "There is nothing in S. 173(4) which prevents the prosecution from putting in such documents at the trial which at the time of the report were not available to them or even if they were available their copies were not supplied to the accused. The provisions of the said sub -section are not mandatory but only directory. A non -compliance of this provision cannot debar the prosecution from examining any witness or producing any document during the course of the trial. On the other hand under sub -section (7) of S. 251A which is in very wide terms the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. (Sub -section (4) of S. 173 does not control sub -section (7) of S. 251 -A. The words Ëœall such evidenceâ„¢ do not mean only such evidence as is referred to in sub -sec. 4 of Sec. 173. All that can be inferred from sub -sec. 4 of Sec. 173 is that before the prosecution is allowed to put in additional document it should furnish a copy of the same in advance to the accused so that he may not be prejudiced in his defence. If it is shown that by the production of additional evidence the rights of the accused are prejudiced in any manner the Magistrate may recall any witness for the purpose of cross -examination and also give him opportunity to meet that additional evidence."