Narayan Rao Vs. The State of Andhra
Pradesh [1957] INSC 60 (15 July 1957)
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1957 AIR 737 1957 SCR 283
ACT:
Sessions Trial-Proceeding on Police
Report-Omission of Police Officer to furnish necessary copies to the accusedDuty
of inquiring Magistrate-Validity of Proceeding and trial-Code of Criminal
Procedure (Act V of 1898), as amended by the amending Act of 1955 (26 of 955),
ss. 173(4), 207A (3), 537.
HEADNOTE:
The word 'shall' occurring in sub-s. (4) Of
s. 173 and subs. (3) Of S. 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 s.
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 S. 537 Of
the Code. Abdul Rahman v. The King-Emperor, (1929) L.R. 55 I.A. 96, Pulukuri
Kolayya v. King-Emperor, (1947) L.R. 74 I.A. 65 and Gurbachan Singh v. The
State of Punjab, Cr. A. NO. 48 of 1957 applied. Consequently, in a case where
an accused person was committed to the Court of Session on a charge under s.
302 of the Indian Penal Code and found guilty there under 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 s. 173(4) and the inquiring Magistrate to cause such
copies to be furnished to him under S. 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 S. 537
Of the Code.
CRIMINAL APPELLATE JURISDICTION: Criminal
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.
1957. 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 noncompliance with the provisions
of ss. 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 s. 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 s. 302, read with
ss. 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 eyewitnesses, 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 ss. 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 eyewitnesses, 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 s. 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 s. 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 MunsiffMagistrate 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 s. 302, against the appellant, and' for participation
in the crime, against the other three accused, under s. 302, read with ss. 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
MunsiffMagistrate who was holding his inquiries under s. 207A(3) and (4), any
grievance was made that the provisions of s. 173(4) had not been complied with
by the police officer incharge 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-s. (4) of s. 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 crossexamination 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 ss. 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 noncompliance with the provisions of ss. 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-s. (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 subsection (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 Sessions. 207A was added by way of amendment of the Code at the same
time.
In the added s. 207A, sub-ss. 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-s. (4) of s. 207A. But it has been found by the
High Court, on the admission of the Government Advocate, that the provisions of
sub-s. 3 of s. 207A had not been complied with. It is not clear as to whether
all the documents contemplated by s. 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 s. 173, read with sub-s. 3 of s. 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 s. 537 (a) of the Code ? In other words, are the provisions of S.
173(4), read with s. 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-s. (4) of s. 173 and sub-s.
(3) of s. 207A is not mandatory but only directory, because an omission by a
police officer, to fully comply with the provisions of s. 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 far reaching effect than the omission
to carry out the provisions of s. 162 or s. 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 v. The King-Emperor(1), their Lordships of the Judicial Committee had to
consider the effect of noncompliance with the provisions of s. 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 s. 537. In the case of Pulukuri Kotayya and others v. KingEmperor
(2), the Judicial Committee had to consider the effect of breach of the
statutory provisions of s. 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 s. 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 v. The King-Emperor (1), where failure to
comply with s. 360 of the Code of Criminal Procedure was held to be cured by
ss. 535 and 537. The present case falls under s. 537, and their Lordships hold
the trial valid notwithstanding the breach of s. 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 s. 537 of the Code, as no case of prejudice has been made out.
This Court, in the case of Gurbachan Singh v. 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.
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