In Re: V.S. Ramanathan

Somasundaram, J.—The accused in C. C. No. 12350 of 1955 on the file of the IVth Presidency Magistrate is the petitioner herein. The

circumstances under which this criminal revision petition is filed are these :

On 1-12-1955, the City Police filed a charge-sheet against the petitioner, that is, the accused in the above case for an offence under S. 420 I. P.

C. The accused appeared on 12-3-1956. The case was adjourned to 17-3-1956 for furnishing to the accused copies of documents referred to in

Section 173 (4) Crl. P. C. No documents were furnished on the 17th and so the case was adjourned to 20-3-1956 when copies of certain

documents alone were made available to the accused. On the 20th after hearing the prosecution and the counsel for the accused a charge was

framed for an offence u/s 420 I. P. C. without examination of any of the witnesses cited in the charge-sheet.

The accused pleaded not guilty to the charge and then the case stood adjourned to 3-4-1956 for examining witnesses on the prosecution side. In

the charge-sheet only four witnesses were examined. They were (1) Parmar; (2) Chandra; (3) Rajagargh; (4) Venugopal. On 3-4-1956 P. W. 1

(that is, the first mentioned witness in the charge-sheet) the complainant in the case was present but as he did not know any language other than

Gujarathi the case was adjourned to 4-4-1956, for getting a Gujarathi translator. On 4-4-1956 with the assistance of the Gujarathi interpreter of

the High Court, P. W. 1 was examined and Exs. P. 1 to P. 17 were marked. On the same day Rajgargh, the third mentioned witness in the

charge-sheet was given up by the prosecution and an additional list of witnesses was filed for whom the magistrate directed issue of summons. The

case then stood adjourned to 17-4-1956. On 17-4-1956, as no witness turned up fresh summons were ordered to all the witnesses except to N.

C. Chandra the second mentioned witness in the charge-sheet. He was directed to be examined on commission. The case was again adjourned to

27-4-1956. This court in Crl. R. C. No. 466 of 1956 quashed the order of the Magistrate directing the examination of Chandra on commission,

for the reasons mentioned therein. The case underwent several adjournments and stood finally posted to 10-5-1956 for examination of witnesses

mentioned in the additional list filed on 4-4-1956.

The names of witnesses mentioned in the additional list and who were sought to be examined were Jadawla, Mathurdoss, Thakore and Narayan

Nair. Among these additional witnesses to be examined the first mentioned witness, Jadawla was given up. The second mentioned person

Mathurdoss was examined as P. W. 2 on 10-5-1956 and Exs. P. 18 to P. 33 were marked. The case was then adjourned to 23-5-1956 when

the third and the fourth witnesses mentioned in the. list, Thakore and Narayan Nair were examined as P. Ws. 3 and 4 and Exs. P. 24 to P. 31

were marked. On the same day, that is, on 23-5-1956 the prosecution filed another list of witnesses and asked that summons should be issued to

them.

The witnesses sought to be summoned are Nara-yana Rao and Chittibabu. The accused raised an objection to the examination of these additional

witnesses but his objection was overruled and it is against this order of the lower court rejecting the objection of the accused to the examination of

the additional witnesses whose names were furnished on 20-3-1956 that the present revision case has been filed. It is alleged and conceded by the

prosecution that these two witnesses, viz., Narayana Rao and Chitti Babu were not examined by the police during the investigation and that,

therefore, no statements were recorded from them u/s 161 (3) Crl. P. C.

So far as P. Ws. 1 to 4 are concerned, it is alleged that copies of statements of P. Ws. 1 to 3 recorded u/s 162 Crl. P. C. were granted to the

accused but that no copy of the statement of P. W. 4 was furnished. P. W. 4 is one of the investigating officers in the case. He would not have

been examined in the case and any statement of his can only be with regard to his conclusions on his investigation into the case. As it can only be in

the nature of an opinion copy of this document need not be furnished to the accused; but as regards P. Ws. 1 to 3 copies of their statements u/s

162 Crl. P. C. have been given to the accused and therefore no question arises about them.

It is only with regard to the last two named witnesses who were sought to be examined by the additional list filed on 20-3-1956, objection is taken

to their examination. It is alleged and it is not disputed that P. Ws. 1 to 4 do not connect the ac-cused with the crime charged against him and it is

only by the examination of the last mentioned witnesses that the accused is sought to be connected with the offence. The question is whether in

these circumstances the two witnesses whose names have been furnished in the list filed on 20-3-1958 could be allowed to be examined by the

prosecution. This question would not have presented any difficulty before the amendment of the Criminal Procedure Code by Act XXVI of 1955.

The Criminal Procedure Code has been amended by the abovementioned Act with a view to facilitate expeditious disposal of cases. In an attempt

to achieve this object the interest of the accused has not been overlooked. Very many important changes have been introduced in the matter of

procedure to be followed in the inquiry before com-mittal and in the trial of warrant cases.

In the trial of wanant cases with which alone we are concerned at present, a new procedure has been prescribed with regard to cases in which

the police file charge-sheets under S. 173 (1) Crl. P. C. This is kid down in Section 173(4) and Section 251-A Crl. P. C. Section 252 lays down

the procedure with regard to trial of warrant cases which are instituted other than on police reports. In cases where the police file charge-sheets u/s

173(4) Crl. P. C. a duty is cast on the prosecution to furnish or cause to be furnished to the accused copies of documents mentioned therein free

of cost before the commence-ment of the inquiry or the trial.

Most of the documents referred to in Section 173 (4), including the statements and confessions recorded u/s 164 Cri. P. C. were, before the

amendment of the Code, furnished to the accused only on application and on payment of the necessary cost by him. As regards 162 statements,

they were granted to the accused only after the witnesses were put into the witness box and that too only on application by the accused. By the

present amendment this obligation on the part of the accused to apply for copies of these documents is dispensed with. The legisla-tare has

enjoined on the prosecution to furnish copies of the statements and the other documents free of cost to the accused and that too before the

commencement of the inquiry Or trial.

Further before the Criminal Procedure Code was amended by Act XXVI of 1955, the accused had a right to cross-examine the witnesses before

a charge was framed against him and also after the framing of the charge. This double right to cross-examine the prosecution witnesses has now

been taken away by the above amendment in respect of cases instituted on police reports though that right is still retained with regard to cases

instituted other than on police reports. This case being a police charge-sheet case the discussion will be confined only to this class of cases. Prior to

the amendment of the Criminal Procedure Code in such cases the accused had a right to reserve cross-examination of witnesses, till after the

charge was framed but the charge itself was framed only after the examination if all or some of the witnesses for the prosecution. It may even be

after the examination of one witness hut under no circurnstances can a charge be framed without the examination of any of the witnesses. In short,

the accused was made aware of the ease against him by the evidence of important witnesses given in court which enabled him to prepare his

defence. The accused thus had a picture of the case against him and his right to further cross-examine witnesses was exercised to meet such a case

and in support of his defence. Now under Clause (3) of Section 251-A, Crl. P. C., without examining any of the witnesses and without recording

any evidence, the Magistrate may frame a charge against the accused merely on a consideration of the documents referred to in Section 173 of the

Code after giving the prosecution and the accused an opportunity of being heard.

In the place of evidence which formerly must be given in Court and which was subjected to cross-examination before the framing of the charge, the

Legislature has enjoined on the prosecution by the provisions of Section 173(4), Crl. P. C., to furnish or cause to be furnished to the accused

copies of documents referred to therein before the commencement of the trial or the inquiry as the case may be. Not only is this duty cast on the

prosecution but there is a fur-ther obligation cast on the Court to satisfy itself that copies of documents referred to in Section 173 (4), Crl. P. C.,

have been granted and if not the Ma-gistrate shall cause them to be furnished to the accused. Furnishing copies of these documents prior to the

commencement of the trial or the inquiry is thus ensured. By this procedure even before the commencement of the trial the accused is given an

opportunity of knowing the entire case against him which will enable him to defend his case properly. This provision of directing copies of

documents referred to in Section 173 to be furnished to the accused before the commencement of the trial is a compensation as it were for taking

away the right which the accused enjoyed before the amendment of the Code. This advantage which the Legislature has in its wisdom thought fit to

confer on the accused as compensation for the deprivation of the right which he enjoyed before cannot, in any manner, be whittled down.

This advantage is really a right conferred on the accused by the Statute and no one has any right either to deprive the accused of that right or

undermine it or water it down in any manner under the guise of exercising some other power under the Code. The provisions of the amended Code

referred to above, have therefore to be strictly construed & not in any manner which is likely to derogate, from the rights conferred on the accused.

Let us now examine and see whether what is sought to be done by the prosecution is justifiable. From the facts set out earlier it would be seen

that when the charge-sheet was filed on 1-12-1955 only four witnesses were cited including the investigating officer. That means that the

prosecution had decided to establish its case against the accused by the evidence of these four witnesses only. Statements of three of these four

witnesses recorded u/s 162, Crl. P. C., must therefore be granted to the accused before the commencement of the trial. So far as the first

mentioned witness in the charge-sheet is concerned, a copy of his statement u/s 162, Crl. P. C., was furnished to the accused and he was

examined as P.W. 1.

Regarding the second mentioned witness in the charge-sheet, as he was the complainant in a similar case against the accused copy of his statement

in the other case was given to the accused. There is no suggestion that he was separately examined u/s 162, Crl. P. C., in the present case.

Therefore, furnishing copies of statements u/s 162, Crl. P. C., in the other case will suffice. The examination of this witness on commission in the

present case was dispensed with by the order of this Court already referred to and, therefore, no question of non-supply of copies of the statement

of witness u/s 162, Crl. P. C., arises.

As regards the third mentioned witness in the charge-sheet, Rajgargh, it is not clear whether a copy of his 162 statement was furnished or not to

the accused before the commencement of the inquiry. This witness was given up by the prosecution on 4-4-1956. As Rajgargh was mentioned as

a witness in the charge-sheet, and as there was no knowing that he would not be examined, a copy of his statement u/s 162, Crl. P. C., should

have been granted to the accused before the commencement of the inquiry and if it had not been granted it is a violation of the mandatory provision

of the Code and a breach of the duty cast not only on the prosecution but also on the Court. On 4-4-1958 apparently after the examination of

P.W. 1 an application was filed for the examination of four more additional witnesses by the prosecution.

They were not cited in the charge-sheet. This was the first assault on the right of the accused to know before the commencement of the enquity not

only the names of the witnesses but also to have copies of the 162 statements of these witnesses. Of the four witnesses mentioned in the additional

list filed on 4-4-1956 the first mentioned, namely, Jadawla was given up. The other three witnesses were examined oh 10-5-1956 and 23-5-1956,

as P.Ws. 2, 3 and 4. Copies of their statements u/s 162, Crl. P. C., were granted to the accused before their examination. It is not known as to

why these witnesses were not cited in the charge-sheet if they were material witnesses.

It is not open to the prosecution to spring such surprises on the accused by bringing in witnesses who were examined during the investigation

without citing them as witnesses in the charge-sheet. According to the provisions of Section 173, Crl. P. C., state-ments recorded under Sub-

section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses must be furnished to the accused before

the commencement of the inquiry. The question is, did the prosecution propose to examine these four witnesses whose names were mentioned in

the additional list filed on 4-4-1956. If they did not propose to examine those persons as their witnesses, the prosecution should not have

examined them afterwards.

If they had proposed to examine them as their witnesses not only should their names have been mentioned in the charge-sheet but that copies of

their statements recorded u/s 162, Crl. P. C., should have been furnished to the accused before the commencement of the inquiry. Bringing in of

such evidence without making any reference to it whatsoever at the time of the filing of the charge-sheet is against the spirit of the amendment and

this ought not to be allowed slightly without a suitable and proper explanation from the prosecution for adopting this umisual procedure. By this, the

right that has been conferred on the accused is sought to be undermined and it ought to be discouraged. On the top of these, two more witnesses

who were not even examined during the investigation are sought to be examined on the side of the prosecution. As they were not examined by the

police they would not have made their statements u/s 162, Crl. P. C. The complaint, therefore, that copies of the statements of these witnesses

recorded u/s 162, Crl. P. C., were not furnished to the accused is without force but by far the greater objection is with regard to the right of the

prosecution to examine such witnesses.

The prosecution attempts to spring an utter surprise on the accused by the examination of these witnesses. By this method the benefit that has been

conferred on the accused as compensation for depriving him of certain other benefits which he enjoyed before the amendment of the Criminal

Procedure Code is sought to be taken away with the result that the accused is neither here nor there. It is true that the prosecution and the accused

must receive equal protection under the laws with the one exception that where there is a doubt in the case put forward by the prosecution, the

benefit of that doubt must be given to the accused.

In all other respects neither should have an advantage over the other. The right of the prosecution to examine as many, witnesses as it likes or such

of the witnesses as it chooses cannot be disputed. What the amendment to the Criminal Procedure Code provides is that the only side that is the

accused must know before the commencement of the inquiry what witnesses the prosecution proposes to examine and what documents it

proposes to file so that the accused may know the full case against him as disclosed by the investigation. This right of the accused to know the case

against him before the commencement of the inquiry cannot be defeated or undermined nor can it be watered down in any manner.

The prosecution must decide before the commencement of the inquiry what witnesses it proposes to examine in support of its case and mention

their names in the charge-sheet that is filed, u/s 173 and furnish or cause to be furnished to the accused copies of statements of those witnesses

recorded u/s 162 during the time of the investigation of the case. If this is not done the prosecution has no right to call any witness they like

subsequently and spring a surprise on the accused. This is the restriction placed on the right of the prosecution to call any witness not cited. in the

charge-sheet or not even examined during the investigation. But the right of the Court to examine such witnesses as it thinks necessary u/s 540, Crl.

P. C., is not taken away by the new amendment to the Criminal Procedure Code and this provision is kept intact. The Court, therefore, can still

examine such witnesses as it thinks necessary in the circumstances mentioned in that section. The power of the Court to examine Court witnesses is

limited by the circumstances mentioned therein. It is a discretionary power and this discretion has to be exercised judicially. The scope of

exercising this judicial discretion is governed by certain well-established principles. Vide the decision of this Court in In Re: K.V.R.S. Mani, and

the various other cases referred to therein.

All these decisions show that there is power in the Court to examine such witnesses as it thinks necessary for reasons to be recorded by it. In the

present case for the reasons given above the two witnesses, Narayana Rao and Chitti Babu sought to be examined by the prosecution cannot be

allowed to be examined on the side of the prosecution. As to whether they can be examined as Court witnesses or not it is left to the discretion of

the Court below. There is no doubt that the lower Court will exercise the discretion vested in it by the provisions of Section 540, Crl. P. C.,

judicially and in accordance with the well-recognised principles laid down in the case referred to above wherein other cases hearing on the same

point have been referred to.

In the result, the order of the lower Court permitting the examination of the two witnesses, Narayana Rao and Chitti Babu by the prosecution is

set aside and the case is directed to be disposed of according to law and in the light of the observations made above.