JUDGMENT- This is a Reference by the Additional Sessions Judge of Poona, recommending that the order passed by the Judicial Magistrate, First Class, Poona, on October 14, 1971 rejecting the application filed by the prosecution to examine a head constable in view of the challenge by the accused in regard to the sending of the sample bottles to the Chemical Analyser be quashed. 2. The short facts necessary for the purpose of this judgment are that the accused was charged with offences under sections 66 (1) (b), 81 and 83 of the Bombay Prohibition Act in regard to 47 tins of illicit liquor, and with having entered into a conspiracy in regard to the same. The prosecution had examined 5 witnesses, and had still not closed its case when, on October 14, 1971, the learned Public Prosecutor made an application to examine a head constable who is alleged to have carried the sample bottles to the Chemical Analyser. That application was presumably made in view of the unreported judgment of Kotval C. J. in Ravji Ktishna Kadam v. The State of Maharashtra1 whereby proof in regard to carrying of the sample was held to be necessary. The learned Magistrate rejected that application on the ground that the statement of the head constable who was sought to be examined as an additional witness had not been recorded and it was not known what he was expected to depose, and permitting the prosecution to examine him at that stage would, therefore, prejudice the defence of the accused. It is from that order that the State preferred a revision application to the Sessions Court and the learned Additional Sessions Judge, after hearing the same, made the present reference, being of the view that the learned Magistrate had no power to curtail the right of the prosecution to examine witnesses- of their choice at any time before it closed its case. He also took the view that an accused person would be entitled to copies of statements only in the case of witnesses whose statements had been recorded by the police under section 161 of the Code of Criminal Procedure, and not otherwise. 3. Section 173 (4) was introduced in the Code of Criminal Procedure only in the year 1955 and there was no corresponding provision to be found in the statute book prior thereto. 3. Section 173 (4) was introduced in the Code of Criminal Procedure only in the year 1955 and there was no corresponding provision to be found in the statute book prior thereto. Even so, Rangnekar J. had, in the case of Emperor v. Dhondiba2 which was decided long before the introduction of section 173 (4), approved of the old practice under which, when the prosecution proposed to examine new witnesses in the Sessions Court, the Public Prosecutor furnished their statements to the Court through the Clerk of the Crown, and copies thereof were also supplied to the defence. That view was based on the English practice with which, Rangnekar J. observed, there was nothing inconsistent in the Code of Criminal Procedure. The point arose again in a case which went up to the Supreme Court after the introduction of section 173 (4) in the Criminal Procedure Code. That was in the case of Narayan Rao v. Stale of Andhra Pradesh3. It appeared that the committing Court had not complied with the provisions of section 173 (4), and though the position was not clear as to whether all the documents contemplated by that section had not been furnished, the Supreme Court proceeded to dispose of the appeal before it on the assumption that there was an entire omission to carry out the provisions thereof., The Supreme Court in its judgment stated (para. 10) that it was the duty of the Magistrate while holding a preliminary inquiry, to satisfy himself that the documents referred to in section 173 had 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 that is done." The Supreme Court, however, took the view that the omission on the part of the Magistrate to secure compliance with the provisions of section 173 (4) did not necessarily result, in the vitiating of the entire proceedings and the subsequent trial, because the word "shall" occurring in section 173 (4) was not mandatory but was only directory. The Supreme Court then proceeded to lay down as follows (para. The Supreme Court then proceeded to lay down as follows (para. 10 at p. 741): "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 pended has caused prejudice to the accused, in the interest of justice the Court may re-open the proceedings by insisting upon full compliance with the provisions of the Code." On the facts of the case before them, the Supreme Court came to the conclusion (para. 12) that the proceedings and the, trial, had not been vitiated by non-compliance with the provisions of section 173 (4), and that the irregularity was durable by reference to section 537 of the Code of Criminal Procedure as no case of prejudice had been made out. 4. Turning to the facts of the present case in the light of this legal position, the trial of this case is still pending before the learned Magistrate and. as laid down by the Supreme Court in Narayan Raos case, if the Magistrate found that the police Officer concerned had not carried out his duty under section 173 (4), the Magistrate should see to it that that was done. The statement of the head constable can still be recorded by the police and a copy thereof furnished to the accused. Though investigation ordinarily concludes when the injury or trial before the Magistrate commences, and that is of particular significance for the purpose of section 164 of the Criminal Procedure Code, there is nothing in the definition of that term in section 4 (1) (1) or in any other provision of that Code to preclude the police from continuing the investigation even after that stage if it should become necessary to do so, as for instance, when new facts or-evidence come to light, or new contentions are raised. The learned Magistrate had, however, no right to refuse to allow the prosecution to examine the head constable as its witness in the present case on the ground that his statement had not been recorded by the police, as the Additional Sessions Judge has rightly observed in his judgment in making the Reference. The learned Magistrate had, however, no right to refuse to allow the prosecution to examine the head constable as its witness in the present case on the ground that his statement had not been recorded by the police, as the Additional Sessions Judge has rightly observed in his judgment in making the Reference. It has been held by the Supreme Court in the case of Tilkeshwar v. Bihar State4 that the failure of the police to record a statement in accordance with section 161 (3) of the Code of Criminal Procedure might affect the weight to be attached to the evidence of the witness, but does not render the evidence inadmissible (para. 6), for it is the Indian Evidence Act which lays down who are competent witnesses and on what matters their evidence is inadmissible (para. 5). If the trial in the present case proceeds and the head constable is examined as a witness without complying with the provisions or section 173(4), the prosecution will only have to thank themselves for the consequences thereof, for, apart from its effect on the probative value of that evidence, the question as to whether or not the accused has been prejudiced thereby might be raised at any later stage of the proceedings either in appeal or otherwise, and in that event, again as laid down by the Supreme Court in Narayan Raos case, if the Court comes to the conclusion at that stage that non-compliance with those provisions had caused prejudice to the accused, in the interest of justice it would re-open the proceedings by insisting upon full compliance with those provisions. Having regard to that legal position, I fail to see how any useful purpose would be served by the prosecution proceeding to examine the head constable in question without complying with the provisions of section 173 (4) of the Code. In this view of the matter, the order passed by the learned Magistrate rejecting the application filed by the prosecution to examine the said head constable must be quashed, as recommended by the Additional Sessions Judge, and the case sent back to the trial Court for being proceeded with in the light of this judgment: I accept the Reference and make the Rule absolute. Rule made absolute.