BHARGAVA, J.—This is a reference by the learned Additional District Magistrate, Jodhpur recommending that the order of the City Magistrate, Jodhpur dated 23rd October, 1961 passed in criminal case No. 317 of 1961 under sec. 415 of the Indian Penal Code be set aside.

2. Against Raghunath and one other person the Police submitted a report under sec. 419 of the Indian Penal Code in the court of the City Magistrate, Jodhpur. The learned Magistrate after complying with the provisions of sub-sections 1 and 2 of sec. 251 A of the Code of Criminal Procedure framed charges against the accused under sec. 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 putting in the document at the trial even if its copy had not been furnished to the accused. He, therefore, made this reference.

3. Mr. Makhtoormal Singhvi learned counsel for the accused Raghunath opposes the reference. It is urged that the provisions of sec. 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-sec. 4 of sec. 173. He says that if the prosecution is allowed to put in additional document in this manner it will render the provisions of sub-sec. 4 of sec. 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 Vs. State of Andhra Pradesh (1), In re Rangaswami Goundan, (2), and Chandu Veeraiah Vs. State of Andhra Pradesh (3).

4. It is true that under sec. 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 sec. 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 sub-sec. 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 Vs. State of Andhra Pradesh (4) in which it was held that:

"The provisions contained in sec. 173(4) and sec. 207 A(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-sec. (4) of Sec. 173 and sub-sec. (3) of sec. 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of sec. 173, should not be allowed to have such a far reaching e

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