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Report No. 37

511. Section 173(4) and suggestion of Commissioner of Police, Madras.-

The following suggestion has been made by the Commissioner of Police, Madras,1 with reference to section 251A(7):

Under section 251A(7), on the filing of a report under section 173, the Magistrate shall proceed to take such evidence as may be produced in support of the prosecution. It very often happens in cases of importance and complicated nature, like gang cases and criminal conspiracy, that the investigation cannot be completed within 15 days or within the period of expiry of the remand of the accused. The defence counsel press for the filing of the report under section 173 to know the nature of the offence made out against the accused. But, as important witnesses are not available, the prosecution is not able to present the full case against the accused.

Section 251A(7) may therefore (it has been suggested) be suitably amended so as to provide that, in exceptional cases where the police officer is unable to examine some important witnesses by reason of non-availability, he may examine them subsequent to the filing of the report under section 173 and supplement the final charge-sheet, of course, after giving copies of the relevant documents to the accused person".

The suggestion has been made under section 251A, but pertains to section 173. We have already considered the matter.2-3

1. F. 3(2)/55-L.C., Pt. III, S. No. 52, (pp. 249 to 250, correspondence).

2. See discussion regarding section 173 and investigation after challan.

3. The suggestion states that the police officer should file an affidavit.

512. Section 173(4) and copies left out through mistake.-

The following suggestion1 has been made by the Chief Presidency Magistrate, Madras:

"The object of furnishing the accused with copies of documents in warrant cases is to give the accused person an opportunity to know in advance what exactly are the statements and documents against him. There should be a provision in the Code to furnish, at any stage before the prosecution is over, copies of documents left out by mistake or on account of any other satisfactory reason. Suitable safeguards may be made to protect the accused from being taken by surprise. The accused cannot complain of any prejudice if a provision is made in the Code making it obligatory to give an adjournment to the accused in such cases to meet the case in the light of the documents furnished to him during the course of the trial.

"It may not be possible to furnish copies of documents in all cases. It is impossible to give a copy of negative of a photo which is filed as a document and not as a material object. In cases of breach of trust and similar offences, the prosecution may rely on several day books and ledgers merely to show the absence of any entry. A provision should be made in such cases enabling an accused to have an inspection of the file instead of getting a copy of the entire file."

In our view, on the first point, no change is required. The existing law does not come in the way of copies being given subsequently, in cases of bona fide mistake or sufficient reason. Sections 173(4), 207A(1) and 251A(1) do not go to that length.

1. F. 3(2)/55-L.C., Pt. III, S. No. 52.

513. Section 173(4) and immediate supply of copies.-

The following suggestion1 has been made by the Markapur Bar Association, (Andhra Pradesh):

"Section 173 provides for the supply of the report after the same is forwarded to the court besides F.I.R. and such other documents which the prosecution proposes to rely upon. This latitude tends to cause delay in the further proceedings of the case as too many adjournments are taken for supplying the same with the result that disposal of cases is delayed, and the accused are inconvenienced.

"Section 173(1) may be amended to say-

"The officer in-charge of a police Station while forwarding a report under this section to court shall furnish or cause to be furnished to the accused..."

We have considered the suggestion, but in our view no such change is necessary.

1. F. No. 3(2)/55-L.C., Pt. III, S. No. 50(o).

514. Section 173(4)-Various other suggestions.-

Various other suggestions1 to amend section 173 were considered by us.

Amongst these are views of several Inspectors-General of Police to the effect that the provision for supply of copies has thrown immense labour on the police under section 173(4), they have suggested that the provision for supply of copies be removed.

But the provision for supply of copies seems to be an essential part of the scheme of the Code as embodied in sections 207A and 251A et seq. (as inserted in 1955) and if the obligation is removed, great injustice will result to the accused.

1. F. 3(2)/55-L.C., Pt. I, S. Nos. 83, 17 and 71A, and F. 3(2)/55-L.C., S. No. 2.

515. Section 173 and cases of corruption.-

In respect of cases relating to corruption it has been suggested1 that the provisions of section 173(4) regarding supply of copies should be deleted as they cause delay. We are unable to accept the suggestion as section 173(4) is a part of the whole scheme introduced in 1955.

1. F. 3(2)/55-L.C., Pt. VIII, S. No. 549 (Special study procedure in corruption cases made by an expert and forwarded by the Ministry of Home Affairs).

516. Section 173(4) and section 202.-

We have considered the question whether it is necessary to insert a provision as to supply of copies in cases investigated under section 202. We think, that no change in the law is required.

517. Section 174 and suggestion regarding death in police custody.-

The following suggestion1 has been made by a Bar Council, with reference to section 174.

(i) Section 176 should be amended 2 to eliminate police investigation and to empower solely the Magistrate to hold the inquiry in the case of death of any person in police custody.

(ii) Consequential amendment to section 174 is suggested, to give an optional power to a Magistrate to hold an inquest on receipt of information from the officer in charge regarding the death of a person under circumstances mentioned in section 174(a), (b) or (c).

The State Government concerned is in favour of this amendment.

This point is connected with section 176, and will be dealt with under that section.3

1. No. F. 3(2)/55-L.C., Pt. III, S. No. 52, (pp. 264-265, correspondence).

2. See discussion regarding section 176.

3. See discussion regarding section 176.

518. Section 174(5).-

In section 174(5), the word "Executive" should be added before the words "Magistrate of the first class" and, for the words "any Magistrate" the words "any other Executive Magistrate" should be substituted.

519. Section 175(1).-

In section 175(1), the word "truly" should be omitted, to bring the section in line1 with section 161. The person making the statement before a police officer should not be liable for perjury. It will, in consequence, be necessary to amend the connected sections of the Indian Penal Code so as to ensure2 that refusal to answer the questions under section 175 is made punishable.3

1. See discussion regarding section 161.

2. Compare discussion relating to section 161.

3. To be summarised in Appendix for other Acts.

520. Section 175(1) and suggestion regarding copies.-

It has been suggested1 that in section 175, in sub-section (1), after the word "forfeiture" the words "and the police officer shall reduce into writing the statements of the witness so examined by him and shall send the copies of the statements forthwith to the Magistrate having jurisdiction to enquire into the case" should be inserted.

Having regard to the scope and nature of the proceedings under section 175, we are not inclined to recommend such change.

1. F. 3(2)/55 L.C., Pt. VII, S. No. 407, (Shri K.V. Raghunath Reddy's Amendment Bill Rajya Sabha, 11 of 1963).

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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