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Criminal Revision No. 798 of 1975, heard on 8th December 1975

‑‑‑ S. 251‑A‑Statements recorded under S. 161, Cr. P. C., supply of‑Contention that provisions of S. 251‑A applicable to warrant cases only and commitment proceeding not covered by it‑Held : Not correct and provisions extend to all cases instituted upon police report.

The State v. Gaman Khan and others P L D 1966 B J 30 and Khadim Hussain and others v. The State 1970 P Cr. L J 735 rel.

‑‑ S. 251‑A‑Non‑compliance with S. 251‑A, effect of‑‑‑Provisions directory in nature‑Committal Court ordering de novo exami nation of witnesses on ground of non‑compliance of provisions contained in S. 251‑A‑Nothing to show accused being prejudiced in recording statements of witnesses‑Order set aside, in circum stances.

Khadim Hussain and 2 others v. The State 1970 P Cr. L 1 735 and State v. Faiz Muhammad 1971 P Cr. L J 264 not fol.

Abdul Rehman and others v. The State P L D 1968 Lah. 514; Khurshid and another v. The State 1969 P Cr. L J 1312 and Mst. Sudan v. The State PLD1965 BJ l2 rel.

Dr. Khalid Ranjha for Petitioner.

Ghulam Ali Mubashir for Respondents Nos. 1 and 2.

Arif Iqbal Hussain Bhatti for Respondents Nos. 3 to 7.

Date of hearing : 8th December 1975.

This application has been filed to revise an order passed by the learned committing Magistrate on 16‑9‑1975, whereby he, on accepting the contention of the respondent‑accused party that the compliance of the provisions Of section 251‑A, Cr. P. C. had not been made, ordered that the prosecution witnesses be examined de novo. It appears from the submissions made by the counsel for the parties that by the date the impugned order was passed, 15 out of the 18 cited P. Ws. had actually been examined, of whom, 2 had been reserved for cross‑examination, and that 2 other witnesses had been given up.

2. Two questions have been raised which are :

(i) whether the provisions of section 251‑A, Cr. P. C. are applicable to commitment proceeding ; and

(ii) whether non‑compliance of the provision is fatal to the proceeding.

3. On the first question, it has been contended that the provision of section 251‑A. having been incorporated under Chapter XXI which relates to trial of warrant cases, is not applicable to cases not covered by that chapter. In this connection, my attention has also been drawn to the Provision of section 251, Cr. P. C. which says "The following procedure shall be observed by Magistrates in the trial of warrant oases". It has been urged that the provision of section 251‑A thus applies only to warrant cases. The contention, to my mind, is only superficial because a careful reading of the words used in section 251‑A shows that the provision is for the benefit of the accused "in all cases instituted upon police report except those tried summarily" and not only warrant cases. The question had been examined at some length in The State v. Gaman Khan and others (P L D 1966 W. P. B J 30) and it bad been held:‑

"What is required is that there should be a case instituted upon a police report and once this is established, the Courts will enforce section 251‑A in "all cases" irrespective of the fact whether the case pertains to a summary trial, Sessions trial or commitment proceedings. The meanings of section 251‑A are clear and in no way doubtful. The heading of the Chapter will, therefore, in no way affect, limit or control the application of section 251‑A."

The above view was followed in Khadim Hussain and two others v. The State (1970 P Cr. L J 735). The view expressed in these authorities has held the field from 11‑4‑1966 and is not shown to have been superseded. I, therefore, hold that the provision is applicable to commitment proceeding.

4. As regards the second question, the view taken in Khadim Hussain etc, v. The State was that "the omission is State v. Faiz Muhammad (1971 P Cr. L J 264) reflects similar view, fatal to the proceedings." It appears, however, that a different view had been taken by a Division Bench of this Court in Abdur Rehman and others v. The State (P L D 1968 Lah. 514). The question referred to the Division Bench had been :‑‑‑

"What is the effect of the non‑compliance with the provisions of section 251‑A on the legality of the proceedings and the trial of an accused person resulting in his conviction"

The answer returned by the Division Bench was :‑

"The provisions of section 251‑A of the Code are directory in nature and non‑compliance with the provisions will not have the effect of vitiating the proceedings or the trial unless it is shown that the case of an accused person has been prejudiced by that omission."

The learned Judges had further observed :‑

"Each case will then depend upon its own circumstances to find out how far has the omission injured the interests of the accused. If a prejudice has taken place, the Court will not hesitate to set aside the trial and order the rehearing of the case after the accused had been supplied with copies of the documents as mentioned in section 251‑A."

In Khurshid and others v. The State (1969 P Cr. L J 1312) where copies of statements of prosecution witnesses had already been with counsel of the accused in connection with defence of the co‑accused in the same case and such counsel had cross‑examined the same witnesses, it was held that under the circumstance it could not be said that the accused had been prejudiced. The essential requirement is, therefore, that no prejudice should have been caused to the accused. The Division Bench's view expressed in Abdul Rehman's case has a binding authority. I, therefore, hold that the provision is of a directory nature and that its non‑compliance could not vitiate a proceeding unless a prejudice is shown to have been caused to the accused.

5. Learned counsel for the petitioner urged that the respondents accused not having taken the objection in time cannot be said to have been prejudiced and that the omission stood cured. The submission, I am afraid, is not in accord with the facts. Learned counsel for the respondents pointed out, on the basis of certified copies of the proceeding‑sheets of the committing Court, that as recorded in the proceeding‑sheet of 14‑11‑1974, the respondents had applied to the Court for supplying them the copies of the statements of all witnesses who had been joining the police investigation. I also find that tae learned Magistrate had observed in the impugned order that the copies of the statements of only those witnesses, who had been cited in the challan, bad been given to the accused. According to learned counsel for the respondents, the accused had been applying in the matter from time to time and according to the proceeding‑sheet of 28‑8‑1975, they had applied even on 11‑8‑1375 and at their request the learned Magistrate had directed on that date, i.e., 28‑8‑1975, that the P. S. I. should study the police file and supply copies of the statements of the remaining witnesses without delay.

6. The purpose of supplying to the accused the copies of the statements of witnesses recorded under section 161, Cr. P. C., is to enable him to know the material upon which the prosecution case rests, so that he may prepare his defence and accordingly cross‑examine the prosecution witnesses. This being so, the ends of justice will be satisfied if the prosecution witnesses already examined are re‑called for their further cross‑examination by the accused. It is to be noted that 15 out of the 18 cited P. Ws. have already been examined and nothing has been shown to satisfy me that in recording their statements, the accused have been so prejudiced as to require a de novo examination of the prosecution witnesses. It is not the case of any of the parties that the Inquiry Magistrate has no power to re‑call the witnesses for the purpose of their further cross‑examination. In fact, Mr. Arif Iqbal Hussain Bhatti, Advocate, relying on the authority of Panchana Sarkar v. Emperor (A I R 1930 Cal. 666) urged that the Court could even order a de novo inquiry. In the circumstances of the present case, I do not see proper justification for the ordering of a de novo examination of all the witnesses. In a similar situation, a Division Bench of this Court in Mst. Sadan v. The State (P L D 1965 B J 12) had given the following direction

"We, therefore, direct the learned Magistrate to supply copies of the police statements of the witnesses to the petitioner and to afford her an opportunity to cross‑examine them in the light of those statements".

7. I, therefore, set aside the order of the learned committing Magistrate ordering a de novo examination of the witnesses and direct that the witnesses so far examined be re‑called, if so wanted by the defence, for their further cross‑examination by the accused.

Order accordingly.

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