Decided on October 04,1972

B.B. Lokhande Respondents


V.R. Vimadalal, J. - (1.) This is a Reference by the Additional Sessions Judge of Poona, recommending that the order passed by the Judicial Magistrate, First Class, Poona, on October 14, 1971 rejecting the application filed by the prosecution to examine a head constable in view of the challenge by the accused in regard to the sending of the sample bottles to the Chemical Analyser be quashed.
(2.) The short facts necessary for the purpose of this judgment are that the accused was charged with offences under sections 66 (1) (b), 81 and 83 of the Bombay Prohibition Act in regard to 47 tins of illicit liquor, and with having entered into a conspiracy in regard to the same. The prosecution had examined 5 witnesses, and had still not closed its case when, on October 14, 1971 the learned Public Prosecutor made an application to examine a head constable who is alleged to have carried the sample bottles to the Chemical Analyser. That application was presumably made in view of the unreported judgment of Kotval C.J. in Ravji Krishna Kadam v. The State of Maharashtra (1969) Criminal Revision Application No. 684 of 1969 , decided by Katval C. J" on October 28, 1969 (Uarep.) whereby proof in regard to carrying of the sample was held to be necessary. The learned Magistrate rejected that application on the ground that the statement of the head constable who was sought to be examined as an additional witness had not been recorded and it was not known what he was expected to depose, and permitting the prosecution to examine him at that stage would therefore, prejudice the defence of the accused. It is from that order that the State preferred a revision application to the Sessions Court and the learned Additional Sessions Judge, after hearing the same, made the present reference, being of the view that the learned Magistrate had no power to curtail the right of the prosecution to examine witnesses of their choice at any time before it closed its case. He also took the view that an accused person would be entitled to copies of statements only in the case of witnesses whose statements had been recorded by the police under section 161 of the Code of Criminal Procedure, and not otherwise.
(3.) Section 173 (4) was introduced in the Code of Criminal Procedure only in the year 1955 and there was no corresponding provision to be found in the statute book prior thereto. Even so, Rangnekar J. had, in the case of Emperor v. Dhondiba, (1934) 36 Bom. L R 950 which was decided long before the introduction of section 173 (4), approved of the old practice under which, when the prosecution proposed to examine new witnesses in the Sessions Court, the Public Prosecutor furnished their statements to the Court through the Clerk of the Crown, and copies there of were also supplied to the defence. That view was based on the English practice with which, Rangnekar J. observed, there was nothing inconsistent in the Code of Criminal Procedure. The point arose again in a case which went up to the Supreme Court after the introduction of section 173 (4) in the Criminal Procedure Code. That was in the case of Narayan Rao v. State of Andhra Pradesh, AIR 1957 S C 737.It appeared that the committing Court had not complied with the provisions of section 173 (4), and though the position was not clear as to whether all the documents contemplated by that section had not been furnished, the Supreme Court proceeded to dispose of the appeal before it on the assumption that there was an entire omission to carry out the provisions thereof. The Supreme Court in its judgment stated (para. 10) that it was the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred to in section 173 had been furnished to the accused, and if he found that the police officer concerned had not carried out his duty in that behalf, "the Magistrate should see to it that that is done." The Supreme Court, however, took the view that the omission on the part of the Magistrate to secure compliance with the provisions of section 173 (4) did not necessarily result in the vitiating of the entire proceedings and the subsequent trial, because the word "shall" occurring in section 173 (4) was not mandatory but was only directory. The Supreme Court then proceeded to lay down as follows (para. 10 at p. 741) : "Certainly, if it is shown, in a particular case, on behalf of the accused persona that the omission on the part of police officers concerned or of the Magistrate before whom the committal proceedings had pended, hat caused prejudice to the accused, in the interest of justice, the Court may re-open the proceedings by insisting upon full compliance with the provision of the Code. On the facts of the case before them, the Supreme Court came to the conclusion (para. 12) that the proceedings and the trial had not been vitiated by non-compliance with the provisions of section 173 (4), and that the irregularity was curable by reference to section 537 of the Code of Criminal Procedure as no case of prejudice had been made out.;

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