Supply of copies of documents to accused at a later stages.

Criminal Revision Case No. 692 of 1958 is directed against an order passed by the Judicial Second Class Magistrate, Repalle, in C.C. No. 1005 of 1958 upon a memo. filed by the prosecution under section 540 of the Criminal Procedure Code. Criminal Revision Case No. 691 of 1958 challenges the correctness of an order of the same Magistrate in the same case passed on a later date on a petition of the accused presented under section 173(4) and 251-A of the Code.

There was a charge-sheet filed against the accused who were four in number under sections 323 and 325, Indian Penal Code, by the Sub-Inspector of Police, Cherukupalli. In the charge-sheet were set forth the names of 12 persons as persons acquainted with the circumstances of the case. During the trial, the prosecution filed a memorandum in which they stated that two witnesses may be summoned as “additional witnesses” on their behalf because their examination was essential to the just decision of the case. One of them is a doctor working as a Radiologist in the Government Headquarters Hospital, Guntur. He is to produce the negatives of the X-ray photographs taken by him of one of the persons injured in the course of the offence alleged against the accused and he is also to produce his report thereon. It was stated in the memorandum that the police became aware of the existence of the X-ray photographs after the investigation was over. The other witness was a head-constable working at Lalapet, Guntur, who was to speak to the receipt of the first information report and the making of the general diary entries. This applications was opposed by the accused. It was contended for them that under sections 173 and 251-A, Criminal Procedure Code, the prosecution is bound to decide before the commencement of the enquiry “what witnesses it proposes to examine and what relevant documents it proposes to rely upon in support of its case and (to) mention their names in the charge-sheet and also to furnish (to the accused) copies of statements of the witnesses recorded under section 162, of the Criminal Procedure Code” and that “if this is not done before the commencement of the inquiry, the prosecution has no right to call any witness that it likes and to file any document it pleases, subsequently and thus spring a surprise on the accused”. The accused therefore submitted to the Magistrate that the prosecution had no right to examine these additional witnesses and to file the X-ray photographs, the Radiologist’s report and the entries in the general diary. The learned Judicial Second Class Magistrate overruled the objection on the ground that the prosecution were invoking the discretion vested in him under section 540 of the Criminal Procedure Code and that in his view the evidence sought to be let in was essential to the just decision of the case. At a latter stage of the trial the accused filed an application raising the same objections. The Magistrate pointed out that he had already overruled the objections in his earlier order and rejected the application. Criminal Revision Case No. 692 of 1958 is directed against his first order and Criminal Revision Case No. 691 of 1958 against his second.

These cases have been posted before a Bench because the question raised is one of general importance.

The argument urged on behalf of the petitioners is that sub-section (4) of section 173, Criminal Procedure Code, is mandatory and that it is the duty of the magistrate under section 251-A to see that the terms of that sub-section are complied with and that if the documents referred to in section 173 have not been furnished to the accused, they cannot be brought into the case at a later stage. It is also argued that no witnesses not mentioned in the charge-sheet can be examined at the enquiry or the trial.

I shall deal with the first submission first. Now section 173(4) of the Code of Criminal Procedure requires that the accused should be furnished with copies inter alia of the statemen