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Judgment
(1) learned Sessions Judge, Broach, recommends that the order of the learned Judicial Magistrate, First Class, Jambusar, refusing to allow the
prosecution to examine its witness one Mr. Goehel, P.S.I, be set aside. The learned Magistrate refused permission to the prosecution to examine
the witness on the ground that the statement was not supplied to the accused as required by section 173 of the Cr.P.Code.
(2) If we turn to section 251-A of the Cr. P.Code, it is clear that the Magistrate is bound to take all such evidence as may be produced in support
of the prosecution. At the same time, we must remember the provision of sub-s. (4) section 171 of the Cr. P.Code. Under that sub-section the
police are bound to give copies of all statement recorded under the sub-section (3) of section 161 of the Cr. P.Code of all persons whom the
prosecution must as its witnesses. Ordinarily, the prosecution must record the statements of all witnesses whom it proposes to examine as its
witnesses. In this case, however, no statement of Mr. Gohel under S. 161 of the Cr. P.Code has been recorded. The failure to comply with the
provisions of sub-section (4) of section 173 of the Cr. P.Code cannot affect the provisions of sub-section (7) of S. 251-a of the hearing, the
Magistrate shall proceed in support of the prosecution. The provisions in section 173 of the Cr. P.Code, requiring the police to give copies of
statements to the accused has been simplified. The failure to comply with the provisions of sub-section (4) of S.173 of the Cr. P. Code may affect
the value of evidence. But, it cannot affect the mandatory character of sub-section (7) of section 215-a, which provides as under:
On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution"".
(3) The order of the learned Magistrate is, therefore, set aside and he is directed to allow the prosecution to examine Mr. Gohel as a witness. It is
open to the Magistrate to attach any value he thinks proper to the evidence of Mr.Gohel.
(4) AI/ AGJ/ V.B.B.
(5) Reference accepted.
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