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1985 Supreme(Raj) 128
Rajasthan High Court
K.S. Lodha, J.
Alarakh - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Misc. Petition No. 105 of 1984
Decided On : July 09, 1985
S.R. Singhi & Surcsh Kumbhat, for Petitioner; M.C. Bhati, P.P.
Headnote:(a) Cr. P.C.—Sec. 173(4) —Scope.(b) Cr. P.C. — -Secs. 173(3) and (4) — -Shall occurring in secs. 173(3) and (4) is not mandatory but directory.(c) Cr.P.C—Secs. 173 and 239 — Framing of charge on basis of documents filed by police—Powei of Magistrate. (Para 5)(d) Cr.P.C. — Secs. 207, 238,239 and 240—Magistrates power to accept further documents other than filed with report u/s. 173.
It has rightly been contended on behalf of the appellant that it was the duty of the Magistrate to see that the provisions aforesaid of the Code, have been fully complied with. Magistrates, therefore, have to be circumspect, while conducting such proceedings, to see to it that accused persons are not handicapped in their defence by any omission on the part of police officers concerned, to supply the necessary copies. But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating these proceedings and subsequent trial. The word "shall" occurring both in sub-sec. (4) of sec. 173 and sub-sec. (3) of sec. 207-A, is not mandatory hut 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 effect as to render the proceedings including that trial before the Court of Sessions, wholly ineffective. Instead of simplifying the procedure, as was intended by the amending Act, as indicated above, the result contended for on behalf of the the appellant, will, necessarily result in re-opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conductive to expeditious justice nor in the interest of accused persons themselves. Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had ended, has caused prejudice to the accused, in the interest of justice, the court may re-open the proceeding by insisting upon full compliance with the provisions of the Code "All that can be inferred from sub-sec.(4) of sec. 173 is that before the prosecution is allowed to put in additional document, it should furnish the copy of the same in advance to the accused so that he may not be prejudiced in his defence............ However, the provisions of sec 173 cannot be read to mean that the prosecution is prevented from putting in additional documents at the trial, copies of which had not been supplied to the accused. (Paras 5 &6)
The learned Magistrate has power to accept further documents even before the charge is framed provided they are relevant and admissible in evidence. If documents can be produced before the Court even after he framing of the charge, there should be no objection to their being produced before the framing of the charge provided that they are admissible in evidence and are relevant because in that event, it will be for the benefit of the accused and he will be able to know what the material is against him for supporting the prosecution case and enabling the Court to frame a charge against him. The learned Magistrate has accepted the documents without considering whether they are relevant and admissible in evidence. It would have been better if he had considered this aspect of the matter before allowing the prosecution to produce them. However, now he will keep this aspect in mind while considering the matter for framing charge and shall take into account only those documents which are admissible in evidence under the Evidence Act. (Paras 7 & 8)
2. I have heard the learned counsel for the petitioner and the learned O. P. and have gone through the record.
3. The learned counsel for the petitioner drew my attention to sections 207, 238, 239 and 240 and urged that when a warrant case is instituted on a police report a copy of police report and the papers filed along with it have to be supplied to the accused as required by s. 207 Cr. P. C. The Magistrate has then take into consideration the police report and the documents sent with it u/s 173 Cr. P. C. and if necessary, after examining the accused will proceed to consider whether a charge should be framed or not against the accused. If he finds that the charge against the accused is groundless, he has to discharge the accused u/s 239 but if upon such examination, if any, and hearing the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence he shall frame a charge in writing against the accused. The learned counsel urges that thus for the purpose of deciding whether the charge has to be framed or not, the Magistrate has to restrict himself to the documents filed along with the police report u/s 173 and cannot allow the prosecution to produce any other documents at that stage. He further submits that by allowing the prosecution to produce more documents at this stage, the Magistrate has gone beyond his powers u/ss 239&240 Cr. P.C. and, therefore, his order deserves to be quashed. On the other hand the learned p. p. has urged that sections 239 and 240, of course refer to the police report and the documents filed along with it but that reference is not in exhaustive terms and does not restrist or prohibit the prosecution from bringing before the court any other material, which may be available to the prosecution to support its case against accused. He further submits that u/s 242 Cr. P. C, after the charge has already been framed, the prosecution is free to produce before the court documents and evidence which had not bee
