BHARGAVA, J.—This is a reference by the learned Additional District Magistrate, Jodhpur recommending that the order of the City Magistrate, Jodhpur dated 23rd October, 1961 passed in criminal case No. 317 of 1961 under sec. 415 of the Indian Penal Code be set aside. 2. Against Raghunath and one other person the Police submitted a report under sec. 419 of the Indian Penal Code in the court of the City Magistrate, Jodhpur. The learned Magistrate after complying with the provisions of sub-sections 1 and 2 of sec. 251 A of the Code of Criminal Procedure framed charges against the accused under sec. 420 of the Indian Penal Code on 6th June, 1961. The accused did not plead guilty. The learned Magistrate fixed a date for the examination of the prosecution witnesses. On 23rd October, 1961, when Munirkhan P. W. 3 was being examined, prosecution wanted the witness to prove certain entries from a log book pertaining to jeep No. 723 of the Excise and Taxation Department. This was objected on behalf of the accused on the ground that this document was neither relied on by the prosecution nor was its copy furnished to them. This objection prevailed with the learned City Magistrate and the prosecution was not permitted to prove the entries of this log book. |A revision was preferred against this order in the Court of the learned Additional District Magistrate, Jodhpur who came to the conclusion that the prosecution could not be prevented from putting in the document at the trial even if its copy had not been furnished to the accused. He, therefore, made this reference. 3. Mr. Makhtoormal Singhvi learned counsel for the accused Raghunath opposes the reference. It is urged that the provisions of sec. 173(4) of the Code are mandatory. The prosecution is not entitled as a matter of right to put in any additional document in evidence at the trial copy of which had not been supplied to the accused in accordance with the provisions of sub-sec. 4 of sec. 173. He says that if the prosecution is allowed to put in additional document in this manner it will render the provisions of sub-sec. 4 of sec. 173 nugatory and will be prejudicial to the interest of the accused. In support of his argument he has placed reliance on Thota Ramalingeshwara Rao Vs. 4 of sec. 173. He says that if the prosecution is allowed to put in additional document in this manner it will render the provisions of sub-sec. 4 of sec. 173 nugatory and will be prejudicial to the interest of the accused. In support of his argument he has placed reliance on Thota Ramalingeshwara Rao Vs. State of Andhra Pradesh (1), In re Rangaswami Goundan, (2), and Chandu Veeraiah Vs. State of Andhra Pradesh (3). 4. It is true that under sec. 173(4) there is an obligation on the prosecution to furnish or cause to be furnished to the accused copies of all the documents on which it proposes to rely. The object of furnishing copies referred to in sec. 173(4) to the accused is to safeguard his interests so that he may have notice of the case he is required to meet. There is however, nothing in sub-sec. 4 which prevents the prosecution from putting in such documents at the trial which at the time of the report were not available to them or if they were available their copies were not supplied to the accused. This sub-section came to be interpreted by the Supreme Court in Narayan Rao Vs. State of Andhra Pradesh (4) in which it was held that: "The provisions contained in sec. 173(4) and sec. 207 A(3) 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 see that all the documents necessary to give the accused persons all the information for the proper conduct of their defence, are furnished. But non-compliance with those provisions has not the result of vitiating those proceedings and subsequent trial. The word shall occurring both in sub-sec. (4) of Sec. 173 and sub-sec. (3) of sec. 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of sec. 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the Court of Sessions, wholly ineffective." It will thus be clear that the provisions of the said sub-section are not mandatory but only directory. 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before the Court of Sessions, wholly ineffective." It will thus be clear that the provisions of the said sub-section are not mandatory but only directory. It therefore, follows that a non-compliance of this provisions cannot debar the prosecution from examining any witness or producing any document during the course of the trial. On the other hand sub-sec. 7 of sec. 251 A which lays down the procedure to be followed by the court in cases instituted on police report is in very wide terms and the Magistrate is bound to take all such evidence as may be produced in support of the prosecution. No restriction has been put on the right of the prosecution to produce evidence at the trial in this sub-section. Sub-sec. 4 of sec. 173 does not control sub-sec.(7) of Sec. 251A of the Code. The words all such evidence do not mean only such evidence as is referred to in sub-sec. 4 of sec. 173. If that were so then something more will have to be read in sub-sec. (7) which is not there. Ail that can be inferred from sub-sec. 4 of sec. 173 is that before the prosecution is allowed to put in additional document it should furnish a copy of the same in advance to the accused so that he may not be prejudiced in his defence. If it is shown that by the production of additional evidence the rights of the accused are prejudiced in any manner the Magistrate may recall any witness for the purpose of cross-examination and also give him opportunity to meet that additional evidence. However, the provisions of sec. 173 cannot be read to mean that the prosecution is prevented from putting in additional document at the trial, copy of which had not been supplied to the accused. In Thota Ramalingeswara Raos case,(1) relied on by Mr. Singhvi it was held that the provisions of sec. 173(4) are mandatory and its noncompliance leads to failure of justice. In view of the decision of the Supreme Court referred to above this case cannot be taken as laying down good law. In Thota Ramalingeswara Raos case,(1) relied on by Mr. Singhvi it was held that the provisions of sec. 173(4) are mandatory and its noncompliance leads to failure of justice. In view of the decision of the Supreme Court referred to above this case cannot be taken as laying down good law. A division bench of the same court in Chandu Veeriahs case(3) dissented from the view expressed in Thota Ramalingeswara Raos case(1) and held that there is no express prohibition in sec. 173(4) or sec. 251(A) against the use by the prosecution of documents copies of which have not been furnished. These provisions do not, by implication, deny the prosecution using a document at the enquiry or trial, a copy of which does not happen to have been furnished to the accused. In re Rangaswami Goundan,(2) though it was held that provisions of sec. 173(4) are mandatory yet it was held that the report of the chemical examiner which is usually not received by the time the enquiry commences can be admitted in evidence during the course of the enquiry, even though its copy had not been supplied to the accused. There is ample authority in support of the view that if in the course of trial the prosecution thinks it necessary to file additional documents or statements of witnesses on whom they propose to rely sec. 173(4) does not prevent them from filing them. See Public Persecutor VS.C.S. Pachippa Mudaliar,(5) The State Vs. Jagdish Pandey,(6), In re Shantilal(7) and State Vs. Baikunthanath Mohanta(8). In my view the learned City Magistrate was in error in rejecting the request of the prosecution to prove the entries in the log book by the evidence of Munir Khan. In order to safeguard the interests of the accused he should have directed the prosecution to supply copies of the entries of the log book, to the accused in advance. It has not been urged before me that the entries of the log book are not relevant in this case. 5. The revision is allowed and the order of the learned City Magistrate dated 23rd October, 1961 is set aside and he is directed to proceed in the light of the above observations.