State of Kerala vs Ayamad and Others

Anna Chandy, J.—This is a petition by the State against the order of the Additional Sub-Magistrate, Kozhikode, rejecting the prayer made by the Prosecutor to accept a record in evidence in a preleminary enquiry proceedings before him. The case is one where six accused persons were charged by the police for the offences of rioting trespass, mischief by fire, etc. The preliminary enquiry had not yet started.

On 5--12--1959 when the case stood posted for evidence and all the necessary witnesses were present, the Assistant Public Prosecutor put in a report to accept in evidence a ration card issued to witness No. 2 in the charge whose residential house was alleged to have been set fire to by the accused. The prayer was objected to by the defence on the ground that it was not a record seized by the police and no witness was questioned by the police regarding it and a copy of the record was not furnished to the accused. The objection was upheld and the record was not allowed to be produced and proved. The learned Magistrate was of the view that production of the record without making any reference to it whatsoever at the time of the filing the charge-sheet is against the spirit of Section 173(4) and 163(2) of the Criminal Procedure Code. Reliance was also placed on the decision of the Madras High Court reported in In Re: V.S. Ramanathan, . The Learned Magistrate was also of the view that the accused would be highly prejudiced by the belated production of the document.

No doubt Section 173(4) imposes a statutory obligation on the part of the Prosecutor to see that copies of documents referred to therein are furnished to the accused before the commencement of the trial. However that does not operate as a bar to the reception of any oral or documentary evidence/ at a later stage if the court finds that the evidence is material for the unfolding'' of the prosecution case and satisfactory explanation is offered for failure to produce it at the specified stage, provided no prejudice is caused to the accused by such belated production. In this case the facts mentioned by the learned Magistrate indicate that the State was much too tardy in the prosecution of the case. The incident in this case took place on 24--1--1959 and the charge-sheet was filed on 27--2--1959, The preliminary enquiry was dragging on for about ten months till 5--12--1959 on which date the report which occasioned the order sought to be revised was passed. The learned Magistrate observes that the delay was caused by the failure of the prosecution to produce witnesses on many an occasion. The report does not even indicate why the ration card could not have been produced earlier. While emphasising the fact that the conduct of the prosecution in this case is far from commendable and is viewed with dissatisfaction, I think the ration card may be allowed to be produced and proved because it appears to be a material evidence in a case where the possession of the house alleged to have been trespassed upon and set fire to is a relevant factor to be proved. The prosecutor may be directed to furnish the accused with a copy of the record before it is proved so that any possible prejudice may be avoided. The revision petition is thus allowed and the learned Magistrate is directed to accept to complete the enquiry proceedings with all possible speed.