Failure to comply with the mandatory provisions of Section 173(4) of the CrPC, which requires the prosecution to furnish the accused with copies of certain documents, including statements recorded under sub-section (3) of Section 161 of the CrPC, vitiates the trial and may result in the conviction being set aside.

ORDER :- (SOMASUNDARAM, J.) :- This is an appeal from the judgment of the learned Sessions Judge of Coimbatore, in S. C. No. 24 of 1956, in which the accused Rangaswami Goundan has been sentenced to death for the murder of his mother. We set aside the conviction and sentence and order a retrial and the reasons for the order will be given later. The accused will be tried by the Additional Sessions Judge of Coimbatore.

2. JUDGMENT :- (SOMASUNDARAM, J.) :- This is an appeal against the sentence of death passed on the appellant by the learned Sessions Judge of Coimbatore in S. C. No. 24 of 1956 on his file. We do not propose to go into the merits of the case as we are ordering retrial on a question of law that has been raised before us.

3. The point that is taken before us is that the provisions of S. 173 (4), Criminal P. C., have not been complied with. Sub-s. (4) of S. 173, Criminal P. C., is in these terms :

"After forwarding a report under this section the officer in charge of the police station shall before the commencement of the enquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-s. (1) and of the first information report recorded under S. 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely including the statements and confessions, if any, recorded under S. 164 and the statements recorded under sub-s. (3) of S. 161 of all the persons whom the prosecution proposes to examine as its witnesses."

4. This section makes it compulsory to furnish to the accused all the documents referred to therein. The complaint of the learned advocate for the appellant is that his client has not been furnished with a copy of the statement of P. W. 5 (the doctor who held the post mortem examination) recorded under sub-s. (3) of S. 161, Criminal P. C. It is conceded by the prosecution that this doctor was examined by the investigating officer and that his statement was recorded in the case diary and that a copy of this statement has not been furnished to the accused.

But it is contended by the learned Public Prosecutor that failure or omission to furnish copy of such statements to the accused does not vitiate the trial. It is at best only an irregularity and in the absence of any prejudice being caused to the accused on account of this failure it is curable under S. 537, Criminal P. C. It is necessary to examine the relevant provisions in the light of the recent amendments introduced by Act XXIV of 1955. Before the amendment a copy of the report under S. 173 shall on application be furnished to the accused before the commencement of the enquiry or trial.

As regards the other documents referred to in sub-s. (4) of S. 173, as amended, they were furnished only on application by the accused. In fact as regards the statements of witnesses recorded under S. 162, Criminal P. C., according to the decisions of this Court and other High Courts, the right of the accused to obtain copies of such statements accrues only when the witness called by the prosecution is put into the witness box.

The accused is entitled to delay cross-examination of the witness till he is able to get copies of the statement made by the witness under S. 162. This inevitably led to delay in the disposal of cases. In practice, therefore, to avoid delay thus caused, these statements were furnished to the accused as soon as the witness got into the witness box. Now after the amendment it has become a statutory obligation on the part of the prosecution to furnish or cause to be furnished to the accused all documents referred to in sub-s. 4. of S. 173 Criminal P. C., before the commencement of the enquiry or trial.

The documents referred to therein are (1) copy of the report forwarded under sub-s. (1); (2) first information report recorded under S. 154; (3) statements and confessions, if any, recorded under S. 164, and (4) all other documents or relevant extracts thereof