DEBABRATA MOOKERJEE, J.

( 1 ) THIS is a reference by the learned Sessions Judge of Jalpaiguri under Section 438 of the Code of Criminal Procedure recommending that an order of a Magistrate dated 20-9-1956, declining to issue processes for the attendance of three witnesses for examination by the prosecution, be set aside.

( 2 ) IT appears that the accused was being tried on a charge under Section 324 of the Indian Penal Code in accordance with the provisions of Chapter XXI of the Code of Criminal Procedure. Copies of necessary documents were furnished to the accused under the provisions of Section 173 (4) of the Code. The case was eventually set down for hearing on 20-9-1956. On that date, an application was filed by the court sub-inspector in charge of the conduct of the prosecution, praying that three witnesses be summoned to give evidence in the case. The learned Magistrate refused the prayer on the ground that none of these witnesses had been examined by the police during investigation and their statements consequently had not been recorded under Section 161 of the Code. Obviously the learned Magistrate was under the impression that Section 173 (4) provided a bar to the examination of any person at the trial whose statement was not to be found in the police, diary. Against the order of the Magistrate, the Sessions Judge was moved, and he has made this Reference recommending that the Magistrate's order, dated 20-9-1956, declining to issue processes for the attendance of these witnesses be set aside. I think the Reference is well grounded and should be accepted.

( 3 ) SECTION 173 (4) of the Code of Criminal Procedure provides that the officer-in-charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1), of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164, and the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses. The learned Magistrate seems to think that this is a provision designed to benefit the accused person by giving him an advance copy of the statements which the witnesses have made against him during investigation. Obviously copies of all police papers, including the first information report and confessions and statements of witnesses examined by the police during investigation are Intended to be given to the accused for his benefit. The question arises whether this provision of the law implies that the prosecution is prevented from calling any witness at the trial who has not been examined by the police or whose statement has not been recorded by them under Section 161 of the Code. In my view, it was not the intention of the legislature to shut out relevant evidence by enacting Sub-section (4) of Section 173 of the Code. The purpose might have been to benefit the accused by giving him in advance, copies of the documents and statements referred to in the sub-section; but that could not possibly have the effect of preventing the prosecution from calling other competent evidence at the trial.

( 4 ) REFERENCE may be made to Section 251-A of the amended Code of Criminal Procedure which provides that after the accused has been given copies of documents and papers referred to in Section 173 (4) and after hearing the parties, if the Magistrate is of the view that there is ground for presuming that the accused has committed an offence which he is competent to try and adequately punish, it shall be his duty to frame a charge against the accused. If thereafter the accused claims to be tried, the Magistrate has to fix a date for examination of witnesses; Sub-section (7) provides that on the date so fixed the Magistrate shall

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