Dharampal vs State

(1) This is a revision application by Dharam Pal, accused, to challenge an order dated 381973 of Chief Judicial Magistrate, Srinagar, where by 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 onesided. 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 what 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 recall any witness, already

examined, for further cressexamination. Any other construction would stultify the provisions of subsection 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 crossexamination. 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 case, even, recall any witness

already examined with a view to enabling the accused to further crossexamine him in the light of the additional evidence proposed to be produced

by the prosecution. The right of the prosecution to produce additional witness or documents should not however be construed to include the right

to compell the accused to produce any document or appear as his own witness. I make this observati0ft because, in the present case, the

prosecution has interalia 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 ant 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 176 (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 subsection are not

mandatory but only directory. A noncompliance 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 subsec. (7) of S 251 A which is in very wide terms the Magistrate is bound to

take all such evidence as may be produced in support of the prosecution. (Subsec (4) of S. 173 does not control subsec (7) of S. 251A. The

words 'all such evidence' do not mean only such evidence as is referred to in subsec. 4 of Sec. 173 All that can be inferred from Subsec 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.

(4) It has not been urged before me that the additional documents and witnesses are not relevant. Accordingly no fault can be found with the order

of the trial court permitting the additional witnesses and documents to be produced at the trial except, of course, the document called from the

accused, which, as already stated, he cannot be compelled to produce To this extent the order made by the trial court is bed and is set aside. The

revision petition is disposed of accordingly. The parties are directed to appear in the trial court on 11574.