HIGH COURT OF KERALA
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(1.) The 2nd accused in C.C. No. 739 of 1953 on the file of the First Class Magistrates Court at Karunagappally has filed this petition seeking a revision of the order passed by the Magistrate convicting him under S. 457 and 380 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of 9 months and to pay a fine of Rs. 500 for the offence under each of the above two counts, which conviction and sentence have been confirmed by the learned Sessions Judge at Quilon by his order in the Criminal Appeal No. 14 of 1954. There were two other accused in C.C. 739/53. Of these three accused, the 3rd accused was acquitted by the trial Magistrate, while accused 1 and 2 were convicted and sentenced.
(2.) The prosecution case is that 2515 lbs. of copper wire valued at Rs. 6287-8-0 were stolen by these three accused from the store room attached to the Electrical Overseers Office at Karunagappally. The 1st accused was a lascar attached to this office at the time of the commission of the alleged offence. The 2nd accused was doing business as a hardware merchant and had his shop near the Electrical Overseers Office. The 3rd accused was an accountant in the shop of the 2nd accused. The prosecution case is that these three accused jointly committed the theft of the copper wire in three instalments on three different dates viz., 5.4.1953, 18.4.1953 and 23.5.1953. It is stated that they got entry into the store room through the adjoining room the outer door of which was opened with a false key which they had got made by the blacksmith who has been examined as Pw. 8. Both the lower courts have come to the conclusion that the evidence adduced by the prosecution has established the case against accused 1 and 2.
(3.) Of the several grounds raised in this revision petition the most important one pressed on behalf of the 2nd accused petitioner is that the refusal of the trial Magistrate to grant copies of the police diary containing the notes of evidence taken by the police at the earliest stage of the investigation from Pws. 1 to 3, 5, 6 and 7 cannot be justified on any ground whatever. There is no controversy about the fact that the 2nd accused had applied for copies of the notes of the evidence of these witnesses as recorded in the police diary and that the Magistrate refused to grant such copies. These facts have been adverted to by the learned Sessions Judge in his judgment, who has stated that the Trial Court went wrong in refusing to grant the copies applied for by the 2nd accused. At the same time the learned Sessions Judge has taken the view that such refusal has not caused any prejudice to the 2nd accused. In view of the express provision contained in S. 162 of the Code of Criminal Procedure that the Court shall on the request of the accused direct the grant of copies of the notes of evidence recorded by the police on questioning the prosecution witnesses in the course of the investigation of the case so that the accused may confront the witnesses with those statements at the close of the cross examination at the trial, it is not enough for the court merely to assert that the refusal to grant such copies has not caused any prejudice to the accused. The Second Proviso to sub-s. (1) of this section specified the circumstances under which alone the refusal to grant such copies may be justified. That Proviso states that if the court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, it shall record such opinion (but not the reasons therefor) and shall exclude such part from the copy of the statement furnished to the accused. The refusal to grant copies to the 2nd accused was not sought to be justified by this Proviso, nor is it seen that an order as contemplated by this Proviso was passed by the trial Magistrate.;
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