The prosecution is not disabled from examining a witness who has not been mentioned in the charge sheet or whose statement has not been recorded under Section 161(3) of the CrPC.

( 1 ) THIS is an appeal by the State against an order of acquittal. Each of the 17 respondents was charged under two counts -- one under Section 143 I. P. C. and another under Section 341 J. P. C. The learned District Munsiff-cum-First Class Magistrate rejected the evidence of all the prosecution witnesses except two which he did not take into consideration because he thought it was not "relevant and admissible". It is best to state his reasons in his own words. "first I propose to consider whether the evidence of the Deputy Superintendent of Police and Sub-Inspector of Police cart be acted upon by the Court in deciding the case of the accused. This case is filed by the prosecution under the amended Criminal Procedure Code, and it is on a police report under Section 173 Cr. P. C. In such cases it is obligatory 011 the part of the prosecution to decide before commencement of the enquiry what witnesses it proposes to examine in support of its case and mention their names in the charge sheet that is filed under Section 173 Cr. P. C. and furnish to. the accused copies of the statements of those witnesses recorded under Section 162 Cr. P. C. vide Section 173 (4) Cr. P. C. In this case the prosecution has followed the above procedure in the beginning. But when the prosecution felt that the witnesses, cited by them except P. W. 1 in this case would not support their case, they were given up and the prosecution side felt it necessary to fill in this want by reinforcing the same with the testimony of P. Ws. 3 and 4. As the amended Code stands and in view of the mandatory nature of the provisions of Sections 173 (1) (a) and 173 (4) the police are not entitled to file a supplemental list of witnesses, at any rate list of witnesses who have not been examined under Section 161 (3) Cr. P. C. Somehow they were summoned as prosecution witnesses and not as Court witnesses. But the fact that they were examined does not entitle their evidence to be considered as relevant and admissible. The examination of such witnesses is in derogation of the rights conferred on the accused by the Code. Further the investigating officer has not recorded their statements under Section 161 (1) and (3) Cr. P. C. The prosecution under the amended Section 173 (4) Cr. P. C. has to supply the statements recorded under sub-section (3) of Section 161 of all the persons whom it proposes to examine as its witnesses. In this respect the Code does not make any distinction in summons cases and warrant cases. Either this section or any other section in the Cr. P. C. does not state that the police-officers, who are to be examined as prosecution witnesses, not being the investigating officers, need not be examined under Section 161 Cr. P. C. Therefore the prosecution should have examined these witnesses under Section 161 (3) Cr. P. C. before the charge-sheet was filed and non-examination of these witnesses on prosecution side takes away a vested right conferred on the accused by the Procedure Code and if their evidence is considered as admissible, then the accused will be prejudiced. Therefore I do not propose to deal with the evidence of these two witnesses and the same will be Ignored. In this connection the observation of Mr. Somasundaram J. in V. Section Ramanathan, 1957-1 Mad LJ Crl 78 : ( (S) AIR 1957 Mad 466), is worth bearing in mind. "

( 2 ) IN my opinion, the learned Magistrate has misdirected himself in reaching this conclusion. It is not obligatory on the part of the investigating officer to reduce into writing any statement made to him in the course of his investigation under Section 161 Cr. P. C. nor is it necessary that he should have examined every person who is later cited as a witness by the prosecution. The obligation imposed by Section 173 is limited to the furnishing of copies of statements recorded under Sub-section (3) of Section 161 Cr. P. C. "of all the persons whom the prosecution proposes to examine as its witnesses" as stated in Sub-s