BERI, J.—The learned Sessions Judge, Udaipur, by his order dated the 24th July, 1963, has recommended that the order of the Munsiff-Magistrate, Chhoti Sadri, dated the 28th June, 1963, whereby he disallowed the production of the certified copies of certain telegrams by the prosecution be set aside under sec. 439 of the Code of Criminal Procedure.

2. The facts which it is necessary to recount for the purposes of this reference, briefiy, are these. Considerable quantity of gold was recovered by the Central excise Department from the house of one Chhaganlal at Chhoti Sadri. Certain excavations were done by the department for the recovery of that gold and w hen Chhaganlals son Gunwant Lal proceeded to repair the damage caused by the excavation, he found another 51 slabs of gold. He entrusted these 51 slabs to Ganpatlal, Hiralal and two others presumably for safety from the Excise Depart-ment. In October, 1965, the Government of India relaxed certain provisions of the Gold Control Order and Gunwantlal therefore demanded the return of the gold slabs from Ganpatlal and others. Hiralal returned seven slabs but the remainder were not returned. Gunwantlal consequently lodged a report at the police station Chhoti Sadri on the 9th December, 1965. On the evening of the 11th December, 1965, an announcement was made by the Jaipur Station of All India Radio that Ganpatlal had offered to donate gold equal to the weight of the then Prime Minis-ter of India late Shri Lal Bahadur Shastri for the purposes of defence of the country. This news alarmed Gunwantlal and he sent telegrams to the various authorities inccluding the Prime Minister of India, the Home Minister of India, the Finance Minis-ter of India, the Chief Minister, the Home Minister of Rajasthan etc. to the effect that the gold which Ganpatlal was offering by way of donation was his and the subject-matter of a criminal case. The challan in the case was put up by the Police on the 10th September, 1966, and the Magistrate has so far recorded the state-ments of 53 witnesses out of 79. On the 3-6-1968, before the statement of Gunwant Lal P.W. 54 came to be recorded, an application was moved on behalf of the prosecution confessing that on account of oversight they had neglected to produce the certified copies of the telegrams which Gunwantlal had sent on hearing the news from the All India Radio. When Gunwantlal (P.W. 54) was in the witness-box, the prosecution pressed for the disposal of the application dated the 3rd June and the learned Magistrate by his order of the 28-6-1958 rejected it. The reason which persuaded the learned Magistrate to disallow the application were that the produc-tion of these telegrams was belated and further that the destruction of the original telegrams having not been proved, the secondary evidence could not be received.

3. The prosecution moved an application by way of a revision before the learned Sessions Judge, Udaipur, who by his order mentioned above has recommen-ded that the order of the Magistrate of the 28th June, 1968, be quashed and the prosecution be allowed to produce the certified copies of the telegrams. In his explanation under rule 80 of the General Rules (Criminal) the learned Magistrate has added another reason for the rejection of the prosecutions application namely that its acceptance would have prolonged the proceedings.

4. While Mr. R.N. Munshi, the learned Additional Government Advocate supports the reference Mr. Shishodia opposes it.

5. Mr. Shishodias submission is that the reference should not be accepted because it was discretionary for the learned Magistrate to have permitted or refused the production of the certified copies at the late stage of the proceedings and the discretion having been once exercised for good reasons by the learned Magistrate, did not call for any interference by me in the revisional jurisdiction.

6. In fairness to the argument of Mr. Shishodia, I must record that the prosecution has been acting leisurely when it tho

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