Judgment Case ID: 510

Judgment:
iminal Appeal No. 97 of 1957. Appeal by special leave from the judgment and order dated November 20	1956	 of the Andhra Pradesh High Court at Hyderabad in Criminal Confirmation Case No. 18 of 1956 and Criminal Appeal No. 240 of 1956 arising out of the judgment and order dated April 25	 1956	 of the Court of the Sessions Judge at Karimnagar in Criminal Case No. 9/8 of 1956. R. C. Prasad	 for the appellant. R. H. Dhebar and T. M. Sen	 for the respondent. July 15. The Judgment of the Court was delivered by SINHA J. The main question for determination in this appeal by special leave is whether and	 if so	 how far non compliance with the provisions of sections 173(4) and 207A(3) of the Code of Criminal Procedure	 has affected the legality of the proceedings and the trial resulting in the conviction of the appellant. The appellant was tried by the learned Sessions Judge of Karimnagar in what used to be the State of Hyderabad (now part of the State of Andhra Pradesh)	 under section 302 of the Indian Penal Code	 for the murder of his brother Baga Rao	 and sentenced to death. The conviction and the sentence were affirmed by the High Court of Judicature of Andhra Pradesh	 at Hyderabad	 on appeal and on a reference by the learned Sessions Judge. Along with the appellant	 three other persons	 named Lingarao	 the appellant 's brother	 Narsingrao	 the nephew of the appellant and son of Lingarao 285 aforesaid	 and Mahboob Ali	 said to be a close friend of the other accused	 were also tried under section 302	 read with sections 34 and 109 of the Indian Penal Code	 and convicted and sentenced to imprisonment for life. Their appeals also were heard along with the appeal preferred by the appellant and by a common judgment	 the High Court dismissed all the appeals and confirmed the convictions and sentences passed against all the four accused persons. This appeal concerns only Narayan Rao who has been sentenced to death by the courts below. The facts of the case are short and simple. The murdered man Baga Rao	 who was an excise contractor	 had separated from his other brothers aforesaid	 and had partitioned the family lands. There were differences amongst the brothers which had led to arbitration proceedings a few months earlier	 which did not satisfy Baga Rao. On the Saturday previous to the Monday	 December 26	 1955	 which was the day of the occurrence	 there was a quarrel between Baga Rao on one side and Lingarao and Narsingrao on the other in the field said to belong to Baga Rao. The parties reside in village Kollamaddi taluk Sircilla	 district Karimnagar. At about 7 a.m. "on the morning of December 26	 1955	 Baga Rao had been proceeding from his village towards Nirmal side. The accused	 who appears to have been lying in wait for Baga Rao	 came running from behind and the appellant fell upon Baga Rao with his knife. The other accused persons caught hold of Baga Rao and the appellant inflicted several injuries on his person with his knife (M.O. 13). At first	 Baga Rao got himself released from the grip of Narsingrao but the latter chased him and overtook him. All the accused overpowered him by catching hold of the different parts of his body	 and the appellant stabbed him in the regions of the neck	 abdomen	 thigh and other parts of his body	 the fatal injuries being in the neck and the abdomen. At the time of the occurrence	 P.W. 1	 father 's brother of the appellant	 who also was proceeding towards Nirmal	 saw most of the occurrence and then	 out of fear	 hid himself in a hut nearby. P.W. 2 a boy of about 12 286 years a student of 4th standard in a Government school	 was also proceeding in that direction that morning	 and saw the whole occurrence from beginning to end from a short distance of a few yards. This young boy claimed the murdered Baga Rao as his maternal uncle	 stating that his mother is the sister of Baga Rao. But the wife of the murdered man	 P.W. 6	 stated in cross examination that P.W. 2 Ramchander Rao is distantly related to her husband and that he is not the son of her husband 's sister. The father of the murdered man	 Chatriah	 aged about 85 years	 who has been examined as defence witness No. 1	 disclaimed all relationship with the said P.W. 2	 but stated that he is related to Dharmiah	 P.W. 1	 who is no other than his full brother. Chatriah	 the father	 had been examined to support the defence suggestion that it was P.W. 1	 Dharmiah Rao and his son who got Baga Rao murdered and falsely implicated the accused persons. That evidence has naturally not been accepted by the courts below because such a case was never sought to be made out at any previous stage of the proceedings until his examination in court. D.W. 2 who claims to be the son in law of P.W. 1	 was examined only to prove that there had been a rivalry between P.W. I and the accused persons for the purchase of some land. His evidence was rejected as vague and of no relevance. The case against the appellant	 as also against other accused persons not before this Court	 rested mainly on the evidence of Dharmiah P.W. I and Ramchander Rao	 P.W. 2	 who figure as the eye witnesses. Besides their testimony	 there is the evidence of the recovery of the blood stained garments from the houses of the accused persons and the blood stained knife found near the dead body	 and identified in court as belonging to the appellant	 which were all found by the chemical examiner	 to have stains of human blood. The courts below have relied upon the evidence of the eye witnesses	 corroborated by the incriminating circumstances aforesaid	 and have agreed in convicting and sentencing the accused as stated above. 287 We have been taken through the evidence in this case and after having heard counsel for the appellant	 we do not see any reasons to differ from the courts below in their estimate of the evidence adduced by the prosecution in support of the case against the appellant. Hence	 in our opinion	 there is no ground for interference with the conclusions of the courts below on the merits of the case. It now remains to consider the question of law which has been seriously pressed upon us. It has been argued	 as was admitted by the learned Government Advocate before the High Court	 that the provisions of sections 173(4) and 207A(3) of the Code of Criminal Procedure	 have not been complied with	 and that	 as a necessary consequence of those omissions	 the entire proceedings and the trial are vitiated. It is convenient at this stage to set out the course	 in some respects rather unusual	 of the proceedings before the police and the committing magistrate as also at the trial before the learned Sessions Judge. When P. W. 1 aforesaid informed Gopal Rao (P. W. 8) Police Patel about the occurrence	 he drew up the first information report at about 11 a.m.	 on December 26. All the four accused were named as the culprits in the first information report. He issued that report to the station house	 Gambhiraopet	 about 5 miles from the place of occurrence. The Sub Inspector of police	 P.W. 11	 proceeded to the spot and prepared the inquest report. He found the throat of the deceased cut	 besides other injuries on the left side of the stomach and right thigh and three wounds on the left hand. Two panchas	 Lachmayya and Ramayya (P.W. 10)	 were called by the police officer and in their presence and under their signatures	 he entered a long note as to what the panchas saw on the spot	 and then follows the substance of the statements of the eye witnesses	 P.Ws. 1 and 2	 aforesaid. This record of the statements of the two eye witnesses	 aforesaid	 made the same day when the occurrence took place	 has been made to serve the double purpose of what the police officer and the panchas aforesaid saw and heard at the spot	 as also the record of the substance of the 288 two main witnesses for the prosecution before the investigating police officer. The post mortem report	 made the next day	 December 27	 corroborated the nature of the injuries stated above	 and added that the incised wound across the lower part of the neck	 had cut the vital organs like trachea	 oesophagus and the jugular vein. The prosecution also proved	 as exhibit P 5	 the panchnama prepared the same day and signed not only by the panchas but purporting to have been signed also by the accused persons. This document is a record which is a complete confession of the crime from the beginning to the end by all the accused persons. This was highly irregular	 but fortunately	 it was not a jury trial and has not	 therefore	 done much harm to the accused persons	 but certainly the provisions of the Evidence Act and of the Code of Criminal Procedure have not been observed. On January 10 and 11	 1956	 the learned Munsiff Magistrate recorded the full length statements of Ramchander Rao as P.W. 1	 and of Dharmiah Rao	 P.W. 2	 under section 164 of the Code of Criminal Procedure. Apparently	 the police	 apprehending that those two persons were related to three out of the four accused	 took the precaution of having their statement so recorded. The police report under section 173 of Criminal Procedure Code was made by the investigating police officer on January 11	 1956	 and was placed before the Munsiff Magistrate on January 12. It gives a very complete statement of the prosecution case and the names and full description 'of the witnesses to be examined in support of the prosecution case. The learned Munsiff Magistrate appears to have examined the investigating police officer as P.W. 1	 and the two eye witnesses	 Dharmiah and Ramchander Rao	 as P.Ws. 2 and 3	 and the medical officer as P.W. 4	 on or about February 15	 1956. The record of the statement of the medical officer appears in the paper book	 but the evidence of the other three witnesses does not appear in the paper book. On February 16	1956	 the learned Munsiff Magistrate put very detailed questions to each one of the accused persons and placed the evidence of all the witnesses examined by him in detail	 to the 289 accused persons who have denied their complicity in the crime and who alleged enmity with the two eyewitnesses aforesaid. The committal order	 if any	 is not before us. The learned Munsiff Magistrate framed a charge for murder under section 302	 against the appellant	 and ' for participation in the crime	 against the other three accused	 under section 302	 read with sections 34 and 109 of Indian Penal Code. He again put a number of questions to each one of the accused persons as to what they had to say against the charges framed and as to what they had to say in their defence. It does not appear that before the learned Munsiff Magistrate who was holding his inquiries under section 207A(3) and (4)	 any grievance was made that the provisions of section 173(4) had not been complied with by the police officer in charge of the investigation. Nor does it appear that any request was made	 to call upon the police officer concerned	 to furnish to the accused	 copies referred to in sub section (4) of section 173 of the Code. There is no indication in the record that even when the accused persons were placed on their trial before the learned Sessions Judge	 any such grievance or any such request was made to that court. The cross examination of the eye witnesses aforesaid has been done at some length	 and there are also references to the record made by the police officer during the investigation. It was only after the conviction and sentences of the accused persons by the learned Sessions Judge	 when the appeals were preferred to the High Court	 that the ground is raised	 for the first time	 in the memoranda of appeal in these terms: "The lower court has lost sight of the fact that the mandatory provisions of sections 173	 207A and other sections of the Code of Criminal Procedure have not been complied with	 and this fact has caused a complete failure of justice." The High Court	 while dealing with this ground of appeal	 has observed that the learned Government Advocate	 while conceding that the committing court had not complied with the provisions of those sections	 had urged that the omission was not sufficient to 37 290 vitiate the trial unless the accused succeeded in showing that they had been prejudiced in their defence. They further observed that when the accused got the copies in the Sessions Court before the recording of the statement of the witnesses	 it could not be said that the accused had been so prejudiced. The High Court finds	 as a fact	 that the accused got the necessary copies of the depositions of the witnesses in the Sessions Court before the statements of the prosecution witnesses were recorded by that court. The High Court also remarked that it was not denied that the copies were supplied a day earlier	 but that there was nothing to show that the accused made any grievance that the time at their disposal was too short to enable them to cross examine the prosecution witnesses	 or that they prayed for an adjournment of the case in order to enable them to effectively cross examine those witnesses. In view of these considerations	 the High Court held that the accused had failed to show any prejudice. Before us	 no attempt was made to show that the non compliance with the provisions of sections 173(4) and 207A(3) had caused any prejudice to the accused. The learned counsel for the appellant sought to argue that the omission had the effect of vitiating the entire proceedings ending in the trial of the accused	 and that	 therefore	 ipso facto	 a fresh trial became necessary irrespective of whether or not the accused had shown any prejudice. In other words	 he contended that these illegalities rendered the proceedings null and void and that the Court need not stop to consider the question of prejudice. Section 173	 sub section (4)	 of the Code of Criminal Procedure was amended by the Code of Criminal Procedure Amendment Act	 26 of 1955	 by adding the following: "(4) After forwarding a report under this section	 the officer in charge of the police station shall	 before the commencement of the inquiry or trial	 furnish or cause to be furnished to the accused	 free of cost	 a copy of the report forwarded under sub section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts 291 thereof	 on which the prosecution proposes to rely	 including the statements and confessions	 if any	 recorded under section 164 and the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (5)Notwithstanding anything contained in subsection (4)	 if the police officer is of opinion that any part of any statement recorded under sub section (3) of section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests	 he shall exclude such part from the copy of the statement furnished to the accused and	 in such a	 case	 he shall make a report to the Magistrate starting his reasons for excluding such part : Provided that at the commencement of the inquiry or trial	 the Magistrate shall	 after perusing the part so excluded and considering the report of the police	 officer	 pass such orders as he thinks fit and if he so directs	 a copy of the part so excluded or such portion thereof	 as he thinks proper	 shall be furnished to the accused. " In order to simplify commitment proceedings preceding the trial of accused persons by a court of Session	s. 207A was added by way of amendment of the Code at the same time. In the added section 207A	 sub sections 3 and 4	 which are material portions of that section	 are in these terms : " (3) At the commencement of the inquiry	 the Magistrate shall	 when the accused appears or is brought before him	 satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them	 he shall cause the same to be so furnished. (4)The Magistrate shall then proceed to take the evidence of such persons	 if any	 as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice 292 to take the evidence of any one or more of the other witnesses for the prosecution	 he may take such evidence also. " It will thus appear that in cases exclusively triable by a court of Session	 it is the duty of the magistrate	 while holding a preliminary inquiry	 to satisfy himself that the documents referred in s.173 have been furnished to the accused and if he found that the police officer concerned had not carried out his duty in that behalf	 the magistrate should see to it that is done. After the accused have been furnished with the necessary documents	 it is now required to record evidence of only such witnesses for the prosecution as had witnessed the actual commission of the offence charged against the accused and of such other witnesses as he may consider necessary in the interests of justice. From what has been said above	 it is clear that the Munsiff Magistrate did record the evidence as required by sub section (4) of section 207A. But it has been found by the High Court	 on the admission of the Government Advocate	 that the provisions of sub section 3 of section 207A had not been complied with. It is not clear as to whether all the documents contemplated by section 173(4)	 quoted above	 had not been furnished to the accused or documents other than the statements of witnesses had not been so supplied. The judgment of the High Court would appear to indicate the latter	 but we shall proceed on the assumption that there was	 an entire omission to carry out the provisions of subs. (4) of section 173	 read with sub section 3 of section 207A. Does such an omission necessarily render the entire proceedings and the trial null and void; or is it only an irregularity curable with reference of the provisions of section 537 (a) of the Code ? In other words	 are the provisions of section 173(4)	 read with section 207A(3) mandatory or only directory ? There is no doubt that those provisions have been introduced by the amending Act of 1955	 in order to simplify the procedure in respect of inquiries leading upto a Sessions trial	 and at the same time to safeguard the interests of accused persons by enjoining upon police officers concerned and magistrates	 before whom such proceedings are brought	 to 293 see that all the documents	 necessary to give the accused persons all the information for the proper conduct of their defence	 are furnished. 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 non compliance with those provisions has	 necessarily	 the result of vitiating those proceedings and subsequent trial. The word "shall" occurring both in sub section (4) of section 173 and sub section (3) of section 207A is not mandatory but only directory	 because an omission by a police officer	 to fully comply with the provisions of section 173	 should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the court of Session 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 appellant	 will	 necessarily	 result in re opening the proceedings and trials which may have been concluded long ago. Such a result will be neither conducive 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 police officers concerned or of the magistrate before whom the committal proceedings had fended	 has caused prejudice to the accused	 in the interest of justice	 the court may reopen the proceedings by insisting upon full compliance with the provisions of the Code. In our opinion	 the omission complained of in the instant case should not have a more farreaching effect than the omission to carry out the provisions of section 162 or section 360 of the Code. Courts in India	 before such matters were taken to their Lord. ships of the Judicial Committee of the Privy Council	 had taken conflicting views on the scope of section 537 of the Code in curing such omissions as aforesaid. In the 294 case of Abdul Rahman vs The King Emperor(1)	 their Lordships of the Judicial Committee had to consider the effect of non compliance with the provisions of section 360 of the Code. After considering the relevant provisions of the Code	 their Lordships came to the conclusion that it was a mere irregularity which could be cured by the provisions of section 537. In the case of Pulukuri Kotayya and others vs King Emperor (2)	 the Judicial Committee had to consider the effect of breach of the statutory provisions of section 162 of the Code. The following observations of their Lordships	 at pages 75 76	 are a complete answer to the arguments advanced on behalf of the appellant before us	 and we respectfully adopt them: " When a trial is conducted in a	 manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case (3))	 the trial is bad	 and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code	 but some irregularity occurs in the course of such conduct	 the irregularity can be cured under section 537	 and none the less so because the irregularity involves	 as must nearly always be the case	 a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships ' Board in Abdul Rahman vs The King Emperor (1)	 where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537. The present case falls under section 537	 and their Lordships hold the trial valid notwithstand ing the breach of section 162. " In the instant case	 the facts as stated above are extremely simple. It was a case of a day light murder by four persons acting in concert and way laying the deceased when lie was out on business that morning. Two persons	 more or less related to three of the accused (1)(1929) L.R. 55 I.A. 96. (2)(1947) L.R. 74 I.A. 65	 75 76. (3) (1901) L.R. 28 I.A. 257. 295 persons	 gave evidence as eye witnesses to the occurrence. Their statements were recorded by the police in some detail in the inquest report itself on the very day of the occurrence. There was not much scope for variations in their statements during police investigation and those before the court. It was a simple case of either believing or disbelieving those two eye witnesses. As already indicated	 all the four accused persons including the appellant were named at the earliest opportunity in the first information report which was lodged without any avoidable delay within a few hours after the occurrence. Both the courts below have preferred to rely upon the testimony of the two eye witnesses	 corroborated by the circumstantial evidence referred to above. They have rejected the defence suggestions supported as they are by the two defence witnesses	 one of whom is a common ancestor of three of the four accused persons. It has not been argued	 and there is no scope for the argument	 that the accused persons have been prejudiced in any way in their defence. They had to meet a straightforward case which they failed to do. After carefully considering the arguments advanced on behalf of the appellant	 we have come to the conclusion that the proceedings and the trial have not been vitiated by the admitted non compliance with the provisions aforesaid of the Code	 and that the irregularity is curable by reference to section 537 of the Code	 as no case of prejudice has been made out. This Court	 in the case of Gurbachan Singh vs The State of Punjab (1)	 was inclined to take a similar view of the provisions aforesaid of the Code	 though it ultimately held that those provisions did not apply to the case then before them. The appeal is accordingly dismissed. Appeal dismissed. (1) Criminal Appeal No. 48 of 1957	 decided on April 24	 1957.

Summary:
The word 'shall ' occurring in sub section (4) Of section 173 and sub section (3) Of section 207A of the Code of Criminal Procedure is not mandatory but directory and a non compliance with the provisions of those subsections	 unless it can be shown to have prejudiced the accused person in his defence	 cannot invalidate the commitment proceedings or the subsequent trial. Magistrates holding inquiries under section 207A(3) Of the Code of Criminal Procedure must	 however	 be circumspect and see that an accused person is not handicapped in his defence by any omission on the part of the Police Officer to furnish him with necessary copies. Where such non compliance is found to cause any prejudice to the accused	 the Court should in the interest of justice reopen the proceedings and insist on a full compliance with the provisions. When it causes no prejudice	 it is a mere irregularity curable under section 537 Of the Code. Abdul Rahman vs The King Emperor	 (1929) L.R. 55 I.A. 96	 Pulukuri Kolayya vs King Emperor	 (1947) L.R. 74 I.A. 65 and Gurbachan Singh vs The State of Punjab	 Cr. A. NO. 48 of 1957 applied. 284 Consequently	 in a case where an accused person was com mitted to the Court of Session on a charge under section 302 of the Indian Penal Code and found guilty thereunder by the Sessions judge and awarded the capital sentence and the order of conviction and sentence was unassailable on merits	 but the Police Officer had omitted to furnish him copies as required by section 173(4) and the inquiring Magistrate to cause such copies to be furnished to him under section 207A(3) of the Code of Criminal Procedure and such omission could not be shown to have in any way prejudiced the accused person in his defence	 it was a mere irregularity that did not vitiate either the commitment proceedings or the trial and was cured by section 537 Of the Code.