The provisions of Section 173 (4) of the Code of Criminal Procedure are directory and not mandatory. Therefore, a non-compliance of this provision cannot debar the prosecution from examining any witness or producing any document during the course of the trial.

C. B. BHARGAVA, J.

( 1 ) THIS is a reference by the learned Additional District Magistrate, Jodhpur recommending that the order of City Magistrate, Jodhpur dated 23rd October, 1961, passed in Criminal Case No. 317 of 1961, under Section 415 of the Indian penal Code be set aside.

( 2 ) AGAINST Raghunath and one other person the Police submitted a report under sections 420 and 419 of the Indian Penal Code in the Court of the City Magistrate, jodhpur. The learned Magistrate after complying with the provisions of Subsections (i) and (2) of Section 251-A of the Code of Criminal Procedure framed charges against the accused under Section 420 of the Indian Penal Code on 6th june, 1961. The accused did not plead guilty. The learned Magistrate fixed a date for the examination of the prosecution witnesses. On 23rd October, 1961, when munirkhan P. W. 3 was being examined, prosecution wanted the witness to prove certain entries from a log book pertaining to Jeep No. 723 of the Excise and taxation Department. This was objected on behalf of the accused on the ground that this document was neither relied on by the prosecution nor was its copy furnished to them. This objection prevailed with the learned City Magistrate and the prosecution was not permitted to prove the entries of this log book. A revision was preferred against this order in the Court of the learned Additional District magistrate, Jodhpur, who came to the conclusion that the prosecution could not be prevented from patting in the document at the trial even if its copy had not been furnished to the accused. He, therefore, made this reference. 2a. Mr. Makhtoor Mal Singhvi learned counsel for the accused Raghunath opposes the reference. It is urged that the provisions of Section 173 (4) of the Code are mandatory. The prosecution is not entitled as a matter of right to put in any additional document in evidence at the trial copy of which had not been supplied to the accused in accordance with the provisions of Sub-section (4) of Section 173. He says that if the prosecution is allowed to put in additional document in this manner it will render the provisions of subsection (4) of Section 173 nugatory and will be prejudicial to the interest of the accused. In support of his argument he has placed reliance on Thota Ramalingeshwara Rao v. State of Andhra Pradesh, AIR 1958 Andh Pra 568, In re Rangaswami Goundan, (S) AIR 1957 Mad 508 and chandu Veeraiah v. State of Andhra Pradesh, AIR 1960 Andh Pra 329.

( 3 ) IT is true that under Section 173 (4) there is an obligation on the prosecution to furnish or cause to be furnished to the accused copies of all the documents on which it proposes to rely. The, object of furnishing copies referred to in Section 173 (4) to the accused is to safeguard his interests so that he may have notice of the case he is required to meet. There is however, nothing in subsection (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 if they were available their copies were not supplied to the accused. This sub-section came to be interpreted by the supreme Court in Narayan Rao v. State of Andhra Pradesh, (S ). AIR 1957 SC 737 in which it was held that :

"the provisions contained in Section 173 (4) and Section 207a (3) have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard the interests of accused persons by enjoining upon police officers concerned and Magistrates before whom such proceedings are brought to see that all the documents necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But non-compliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word shall occurring both in Sub-section (4) of Section 173 and Sub-sec. (3) of Section 207, is