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TMI Blog1971 (10) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... petition of the complaint itself. The learned Magistrate, however, examined the complainant and his one witness and issued process for the appearance of the accused. After the accused put in their appearance, the complainant filed a list of witnesses who were summoned and examined by the complainant and then also cross-examined by the accused who were represented by a lawyer. Eventually, two of them were committed for trial to the Court of Session and those remaining were discharged. In the Sessions Court an objection was raised on behalf of the accused that the proceedings were invalid from the very start for the reason that the accused were summoned initially without the complainant filing a list of witnesses as required under Section 204 (1-A). The learned Sessions Judge overruled the objection. The accused have come in revision to this Court, which was heard by two of us. In the course of hearing it transpired that there was a divergence of judicial opinion as regards the effect that the non-compliance with Section 204 (1-A) of the Code of Criminal Procedure would have on the subsequent proceedings. As such the case has been referred to the Full Court for an authoritative prono ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That broadly speaking, is the basic principle on which the Code is based. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese sections the law provides that the Magistrate shall take all such evidence as the complainant may produce implying that he shall not be tied down to the list of witnesses already furnished by him with the complaint. Again the provision is analogous to Section 173 (4) which provides that in cases instituted upon police report as distinguished from 'complaint' the investigating officer shall be under an obligation to supply, before the commencement of the enquiry, to the accused not only the list of persons proposed to be examined by the prosecution but also copies of their statements recorded under Section 161 as also copies of other documents or relevant extract therefrom which the prosecution proposes to rely upon. The trend of the decisions of the Supreme Court as reflected in 1957CriLJ1320 and 1964CriLJ167 is that non-supply of such copies is not a matter affecting the jurisdiction of the court but it may vitiate the trial depending on whether or not prejudice was caused to the accused. In this, the court relied upon the provisions of Section 537 of the Code of Criminal Procedure which provide amongst other things that subject to the provisions contained in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation of the witnesses which were actually examined during the commitment proceedings. To this may be added the fact that no objection was raised about the omission complained of till the case came to the Court of Session although the accused were represented throughout by a lawyer and the omission was so patent that an objection could be and should have been taken about it at an early, stage in the committing Court. This is an important circumstance against the inference of prejudice under Section 537 Cr. P. C. which governs the present case, in that the explanation to the said section says that in determining whether any error, omission or irregularity in any proceedings under the Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection would and should have been raised at an earlier stage in the proceedings. In this state of the matter no prejudice can be reasonably inferred to have been caused to the accused. 9. In the result we find no force In this revision petition which is hereby dismissed, Mian Jalal-ud-Din, J. I agree. Raja Jaswant Singh, J. 10. I have had the advantage of perusing the judgment prepared by my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed as a Court of justice his obligation is all the greater to see that law, is properly administered; and if an accused has been prejudiced by such an order, it is liable to be set aside. The provisions of Clause (IA). however, are mandatory in the sense that a process issued before the filing of the list of witnesses would be invalid. This clause is couched in a negative language, and it goes to the power of the Magistrate to issue summonses or warrants, as the case may be. The provisions which enjoin the Courts to satisfy themselves about the prima facie nature of a criminal charge, before issuing a process must be intended in the absence of a clear suggestion to the contrary, to be mandatory. The Madhya Pradesh High Court has also in Chaturbhuj V. Naharkhan AIR1958MP28 held that the filing of the list of prosecution witnesses is essential before the issue of process under Clause (1-A) of Section 204 the wording of which is mandatory. 11. The observations made by this Court in Ghulam Mohamad Burza v. Hajira Begum are also in accord with this view. 12. In view of the foregoing. I am of the opinion that the filing of the list of prosecution witnesses before issue of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 204 (1-A) is not so prohibitive or even so strong. All that it forbids is the issue of a summons or warrant against the accused until the list of the prosecution witnesses has been filed. Therefore all that it forbids is the issue of a summons or a warrant against the accused. We can imagine cases in which a Magistrate seized of a criminal case makes up his mind to summon the accused under a particular Section of the Penal Code or any other penal enactment; but before the summons or a warrant is issued or ordered to be issued, the accused appears. In that case the Magistrate has to go on with the proceedings of the case, whether it be a summons case or a warrant case, or a commitment proceeding. For this purpose reference may be made to Sections 207-A, 242 and 251-A of the Code of Criminal Procedure. Section 207-A (3) says: 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... Sub-section (4) of the same section lays down the procedure for taking evidence. Then the subsequent sub-sections deal with the procedure to be followed by the Magistrate. Similarly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking is the basic principle on which the Code is based. Then in paragraph 43 their Lordships have further laid down that: In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna which will naturally operate to the benefit of the accused and if there is any reasonable and substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to give evidence against him so that he may be in a position to cross-examine them effectively after finding out as to why they are deposing against him and to guard against any possible attempt at fabricating evidence. If the list of witnesses is supplied to the accused, not being made a part of the complaint, but before a reasonable time of recording the evidence of prosecution witness against him. in my opinion the object of this provision of law and the ends of justice would be fully met within this particular case one can safely say that the lack of supplying the list of prosecution witnesses with the initial complaint has caused no prejudice to the accused as has been fully brought out by my learned brother Mufti J. He was all along represented by a counsel, the list was supplied to him before the prosecution evidence was actually recorded and no objection was taken about this irregularity till the case was committed to the Court of Session. Apart from the facts of this particular case I have no hesitation in stating that if the list of the prosecution witnesses is supplied to the accused before the prosecution evidence actually starts and he has time to know about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of investigation, but if he does record in writing any such statements, he is obliged to make copies of these statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved. The object of the provision is manifestly to give the accused the fullest information in the possession of the prosecution on which the case of the State is based, and the statements made against him. But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the powers of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach. If similar provisions in the Code of Criminal Procedure have been held to be only dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or with the original complaint, there is no reason to hold that his initial failure to mention the names of the witnesses at the time of the complaint, would render the proceedings invalid. 18. There is yet another approach to the matter. Section 252 (2) lays down: The Magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the cases and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary. This sub-section according to the ordinary rules of interpretation of statutes has to be read harmoniously with Section 204 (I-A} or in other words an attempt has to be made to reconcile the provisions of these two sub-sections. Even after the amendment of Section 204 this sub-section was retained by the legislature, Sub-section (2) of Section 252 comes into play at a stage subsequent to issue of process. Under this provision the Magistrate is bound to enquire from the complainant or otherwise ascertain the names of the persons' likely to be acquainted with the facts of the case or in other words-to be able to give evidence i. e. w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but such an irregularity is curable under Section 537 of the Code of Cr. Procedure, My learned brother Jaswant Singh J. has relied on a judgment of Dua J reported in. The learned Judge in that judgment held that Clauses (IA) and (IB) of Section 204 are enacted in the interest and for the protection of the accused; but so far as Clause (IB) is concerned, he holds it simply to be directory, and still holds Clause (IA) as mandatory and the reason given is that this clause is couched in a negative language and it goes to the power of the Magistrate to issue summons or warrants, as the case may be. The provisions which enjoin the Courts to satisfy themselves about the prima facie nature of the criminal charge, before issuing a process must be intended in the absence of a clear suggestion to the contrary, to be mandatory. Remarked the Hon'ble Judges of the Supreme Court in 1956CriLJ291 when they say the real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to 'substantial' denial of a trial as contemplated by the Code and understood by the comprehensive expression natural justice. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic interest cannot be ignored or waived but must be complied with the letter and the spirit of the law because there is no estoppel against the statute. The question of waiving these provisions therefore by consent does not arise. The provisions of Sections 195 196. 196A. 197 and 198 etc. fall within this category, violation of which goes to the very root of the jurisdiction of the matter and the conditions prescribed in these sections are a sine qua non for the assumption of the jurisdiction of the court, and since these provisions are in public interest, no amount of waiver or consent can confer jurisdiction on the court which it does not possess. Furthermore failure to comply with these provisions results in the court suffering from an inherent lack of jurisdiction and such an illegality is not curable under Section 537 of the Code- It is now well settled by the authorities of the Supreme Court, the Privy Council and all High Courts that these provisions are mandatory and are not curable under Section 537. 24. The question for consideration, however, is whether the provisions of Section 204 (1-A) of the Criminal P. C. can be equated with these provisions so as to have a mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused has to be complied with normally, but it is not mandatory in the sense that even if no prejudice is caused to the accused it will vitiate the trial. 26. In the instant case, as pointed out by Bhat J, the list was eventually supplied to the accused later on though not along with the summons and the accused who was defended by a counsel cross-examined the witnesses. No objection was raised by the accused at any stage that he had been prejudiced because the list was not supplied along with the summons. In these circumstances therefore I am clearly of the opinion that non-compliance of Section 204 (I-A) is an irregularity which is curable under Section 537 and does not vitiate the proceedings unless it is proved that prejudice has been caused. Where the accused makes no complaint of the non-compliance of this provision at any stage and exercise his right of cross-examining the witnesses the presumption will be that no prejudice has been caused to the accused, unless it is proved otherwise. The Punjab and M, P. decisions referred to in the judgments of my learned brothers Bhat and Mufti Baha-ud-Din JJ. appear to have taken a much too technical view of the matter and w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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