* THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA Crl.R.C.No.2318 of 2010 % 15.02.2011 Between: Smt G.Saroja ..... Petitioner AND The State of AP reptd., by the Public Prosecutor and another. .....Respondents ! Counsel for the Appellant: Sri R.K.G. Bhatia ^Counsel for the respondent No.1: Public Prosecutor < Gist: > Head Note: ? CITATIONS: NIL THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.2318 of 2010 ORDER: The petitioner herein-accused No.3 is facing trial along with others in C.C.No.682 of 2006 on the file of the X Metropolitan Magistrate, Cyberabad at Malkajgiri, Hyderabad, for the offences punishable under Sections 420, 406, 468 and 120-B IPC. At a stage, when the trial was in progress and P.W-1 was examined in chief, the prosecution has come forward by filing Crl.M.P.No.6253 of 2010 stating that it wants to rely upon certain documentary evidence and sought permission of the Court below to receive and mark the same. The learned Magistrate allowed the said application by his order, dated 30.11.2010, and permitted the prosecution to file certified copies of the said documentary evidence and to mark the same through P.W-1 and received the same subject to proof and relevancy. The same is questioned in this Criminal Revision Case. The main emphasis of the learned counsel for the petitioner- Sri R.K.G.Bhatia is that there is no provision in the Code of Criminal Procedure (for short “Cr.P.C.”) enabling the prosecution to come forward with a further list of documents after filing of the charge sheet. In this context, he placed reliance on sub- section 5 of Section 173 Cr.P.C. Per contra, the learned Public Prosecutor appearing for the first respondent-State opposed the said submissions stating that though all the documents are to be furnished at the time of filing the charge sheet, still it is open for the prosecution to submit the incriminating documents even after filing of the charge sheet. Section 173 Cr.P.C. deals with report of the Police officer on completion of investigation and according to sub-section 5 of the said provision of law, even if a report is in respect of a case to which Section 170 Cr.P.C. applies, the Police officer shall forward to the Magistrate along with the report all the documents or relevant extracts thereof on which the prosecution proposes to rely upon other than those already sent to the Magistrate during the investigation. It further states that the statements recorded under Section 161 Cr.P.C. of all the persons whom the prosecution proposes to examine as its witnesses shall be forwarded to the Magistrate. If we look at the said provision of law in singular, it is true that it postulates that all the documents on which the prosecution places reliance shall be submitted along with the report/charge sheet to the Magistrate and a copy of the same shall be furnished to the accused free of cost, as provided for under Section 207 Cr.P.C. But, it does not mean that at a later stage if some incriminating material is received, the prosecution cannot file the same before the Magistrate. In fact, there is nothing in Section 173(5) Cr.P.C. which prevents the prosecution from submitting any such documents at the time of trial of the case, which at the time of filing the charge sheet/report were not available with them, or even if they were available, the copies thereof were not supplied to the accused. In my considered view, the said provision of law provided for under Section 173(5) Cr.P.C. is only directory and it cannot be treated as mandatory. The non-compliance of the said provision of law cannot debar the prosecution from producing any documents during the course of trial i.e., after filing of the charge sheet and furnishing copies of the said documents to the accused. Further, sub-section-3 of Section 242 Cr.P.C., which deals with the evidence for the prosecution, clearly states that on the date so fixed the Magistrate shall proceed to take “all such evidence” as may be produced in support of the prosecution. The said provision of law is very wide and in my considered view the Magistrate is all competent to receive any further evidence, if necessary, even if the documents are filed after filing of the charge sheet. The said provision of law i.e., Section 242 Cr.P.C. in my considered view is having an over riding effect over sub-section 5 of Section 173 Cr.P.C, and the provisions under sub-section-5 of Section 173 Cr.P.C., does not control the Magistrate in any manner. The words “all such evidence” mentioned under sub-section-3 of Section 242 Cr.P.C. do not mean only such evidence as is referred to in sub- section 5 of Section 173 Cr.P.C. What is to be inferred by sub- section 5 of Section 173 Cr.P.C. is that before the prosecution is allowed to file any additional documents, it should furnish a copy of the same in advance to the accused so that he may not be prejudiced in his defence. From a perusal of the docket order impugned in this Revision, it appears that the learned Magistrate simply allowed the petition and received the documents filed by the prosecution subject to proof and relevancy. From that, it cannot be inferred that the accused will not be furnished with the copies of the said documents and they will not be permitted to prepare their defence in the light of the said additional documentary evidence. In those circumstances, this Court is of the view that the impugned order cannot be said to be wrong and this Revision is accordingly dismissed. Having regard to the fact that the Magistrate has received the said documents, he is hereby directed to furnish copies of the said additional documentary evidence to the petitioner herein and other accused so that they can prepare for their defence. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 15th February 2011 Note: L.R. Copy to be marked. B/o DR