JUDGMENT - ASHOK AGARWAL, J.:---By the present application the original accused Nos. 1 and 2 who are facing trial along with four other accused have raised the following questions for my determination:-- (a) By virtue of section 173 of the Code of Criminal Procedure was it imperative for the Investigating Officer to deposit all the documents and statements recorded under section 161 of the Code of the Criminal Procedure in the Court of Metropolitan Magistrate who committed the matter to the Court ? (b) If he has not done so and if the defence makes an application before the Sessions Court to take aforesaid documents in Court's custody, is it obligatory upon the Court to do so ? (c) If once the prosecution relies upon the statements of particular witnesses and consequently give copies thereof (through Court), can the prosecution refuse to give inspection of the original documents and statements to the defence if the defence calls upto the prosecution to do so ? (d) If the prosecution refuse, to comply with such requisition, is the trial Court not empowered to direct the prosecution to given inspection of the original statements and documents ? 2. The facts leading to the filing of the present petition are as under:--- While the prosecution witness No. 15 Vinayak Gajmal Patil, the Investigating Officer was under cross-examination, the present controversy between the parties arose which is reflected in his deposition, the relevant portion whereof is as under:-- "It is not true that I had altered the statement of Bhikaji Shambhaji Sarfare. Q : 1 Put it to you that in the original typed statement of Bhikaji Sarfare, it was typed as 'I remembered that the person on left side fired the shots' and the same has been altered in the hand-writing to the effect that 'the persons on both sides had fired the shots'. Ans. It is not true that in the original typed statement of Bhikaji Sarfare it was typed 'I remembered that the person on left side fired the shots' and that the same has been altered in the hand-writing to the effect that 'the persons on both sides had fired the shots'. Q : 2 Will you kindly produce the original statement of Bhikaji Sarfare in the Court which was show to Mr. B.P. Singh, Adv. yesterday in Court ? (Note) Ld. Spl. Q : 2 Will you kindly produce the original statement of Bhikaji Sarfare in the Court which was show to Mr. B.P. Singh, Adv. yesterday in Court ? (Note) Ld. Spl. PP, submits that this witness has not shown to Mr. Singh, any statement of Bhikaji Sarfare yesterday. Moreover he submits that the prosecution has not examined Bhikaji Sarfare and the prosecution is therefore not relying upon his statement or evidence and therefore he is not willing to show original statements of Bhikaji Sarfare to Mr. Singh Ld. Adv. Moreover prosecution is willing to show the original statements of all the witnesses not examined, to this Hon'ble Court. Ld. Spl. P.P. submits that he himself had not shown the original statement of Bhikaji Sarfare to Mr. Singh Ld. Adv. for accused No. 1 and 2 submits that the original statement of Bhikaji Sarfare was shown by the prosecutor to Mr. Singh while Mr. Singh was cross-examining this witness with regard to the time of recording of the statement of that witness and Mr. Singh personally found in that statement the alteration made as suggested by Mr. Singh in his earlier question today. Mr. Singh tenders an application by way of submission that when the inspection of the statement of Bhikaji Sarfare was given to Mr. Singh yesterday, he found that there were some alterations and forgery. Mr. Shirodkar, Ld. Spl. P.P. in order to pre-empt any allegation submits that prosecution is showing to the Court the original statement Bhikaji Sarfare for the perusal of the Court. (Court has seen the original statement of Bhikaji Sarfare and read the relevant portion therefrom and made a mental note about the same. The Court returned the original statement to I.O. It is not necessary to take original statements or xerox copy on record. However, the Ld. Spl. P.P. in fairness and in order to forestall any further allegations against the prosecution is giving the xerox copy of the original statement. Accordingly Mr. Shaikh Ld. were interpreter accompanied I.O. for getting the xerox copy of the original statement. Accordingly, I.O. P.I. Gaonkar, accompanied Mr. Shaikh, Ld. sworn interpreter returned to the Court and handed over the original statement of Bhikaji Sarfare and one xerox copy of the Court and Ld. Spl. Accordingly Mr. Shaikh Ld. were interpreter accompanied I.O. for getting the xerox copy of the original statement. Accordingly, I.O. P.I. Gaonkar, accompanied Mr. Shaikh, Ld. sworn interpreter returned to the Court and handed over the original statement of Bhikaji Sarfare and one xerox copy of the Court and Ld. Spl. P.P. shows the original statement to the Court and give one xerox copy of the said statement with request that the said xerox copy be kept in a sealed envelope). P.C. original statement after comparing with the xerox copy, of the statement of Sarfare is returned to I.O. One xerox copy of the original statement of Bhikaji Sarfare is kept by the Court and the same is to be kept in a sealed cover by the Ld. Sheristedar. Application of Mr. Singh for inspection of the xerox copy of the said statement is rejected (Ld. Adv. Mr. Singh tenders another application for adjournment of the case for 3 days after the receipt of certified of the order made on Ex. 125, 126 127). (P.C. By consent of the Ld. Adv. and Ld. Spl. P.P. instead of adjourning case for 3 days, cross-exam. of witness P.W. 15 P.I. Patil is deferred till 4th April, 1990. However the case is adjd. to 2nd April, 1990 for examination of other witnesses.)" 3. Shri Singh appearing on behalf of the petitioners (original accused Nos. 1 2) and Shri Panda appearing on behalf of the respondent Nos. 2 to 5 (original accused Nos. 3 to 6) strenuously submitted that the defence was entitled, in the circumstances of the present case, to inspection of the original statement of Bhikaji Sarfare. According to the defence, a copy of the said statement had been furnished to the defence as the prosecution had proposed to examine him in support of its case. While P.W. 2, the complainant, who is the first informant was being examined, a positive statement was made on behalf of the prosecution that it would examine the said Bhikaji Sarfare if he was available. P.W. 15 Vinayak Patil, the Investigating Officer in paragraph 5 of his evidence has deposed that he had recorded the statement of witnesses i.e. Bhikaji Sarfare, Abdul Wahid (P.W. 3), Vithal Sardesai and Jairam Bhalerao. P.W. 15 Vinayak Patil, the Investigating Officer in paragraph 5 of his evidence has deposed that he had recorded the statement of witnesses i.e. Bhikaji Sarfare, Abdul Wahid (P.W. 3), Vithal Sardesai and Jairam Bhalerao. According to Shri Singh, the learned Advocate appearing on behalf of the petitioners, the original statement of the said Bhikaji Sarfare was shown to him and he had found that the said statement was type-written containing the original "I remembered that the person on left side fired the shots" and the same was altered in the hand writing to the effect that, "the persons on both sides had fired the shots". This has been stoutly denied both by the witness as also by Shri Shirodkar, the learned Special Public Prosecutor appearing in the case. 4. In my judgment, this is a fit case where the prosecution should be directed to produce the original statements of all the three eye-witnesses viz. Vithal Bulbaroon Sardesai, Yashwant Jairam Bhalerao and Bhikaji Sambhaji Sarphare, though the prosecution does not propose to examine them at the trial. 5. It has to be observed that prior to the coming into force of the Code of Criminal Procedure, 1973 the obligation to supply to the accused copies of the documents and statement of witnesses which the prosecution proposes to rely upon was on the police. Under section 173(5) of the 1973 Code the Police Officer is required to forward to the Magistrate all documents or relevant extract thereof on which the prosecution proposes to rely and the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as his witnesses. Section 207 casts an obligation upon the Magistrate to furnish to the accused free of costs copy of the police report, the first information report recorded under section 154, statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as the witnesses and any other documents or relevant extract thereof forwarded to the Magistrate with the police report under section 173(5). 6. It is apparent that the present Code of 1973 has made provision for better safeguard of the right of the accused to put up its defence effectively. 6. It is apparent that the present Code of 1973 has made provision for better safeguard of the right of the accused to put up its defence effectively. A plain reading of section 173(5) would make it clear that what is required to be forwarded by the Police Officer to the Magistrate are the statements of witnesses in original and not copies thereof. Hence ordinarily it would be obligatory on the part of the prosecution to forward to the Magistrate all documents and statements of witnesses in original. It may be that failure to comply with this requirement would not vitiate the trial unless the prejudice is shown to have been caused to the defence. However, if a request is made by the defence as is made in the present case for production of the originals, the same shall have to be acceded to. To this extent, the provision of section 173(5) is mandatory in nature. The fact that the prosecution no longer proposes to examine these witnesses can be no answer to the above obligation cast by section 173(5). 7. In the case of (Satya Narain v. State of Bihar)1, reported in 1980 Cri.L.J. Page 227, the Supreme Court observed as follows:- "Section 173(2)(i) provides that on completion of the investigation the Police Officer investigating into a cognizable offence shall submit a report in the form prescribed by the State Government and stating therein (a) the name of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so whether with or without sureties; and (g) whether he has been custody under section 170. Sub-section (5) of section 173 makes it obligatory upon the Police Officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial." (Emphasis provided). 8. Sub-section (5) of section 173 makes it obligatory upon the Police Officer to forward along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as witnesses at the trial." (Emphasis provided). 8. In the case of (Sudhakar D. Malekar v. Hemu P. Thakur)2, reported in 83 Bom.L.R. page 496, this Court observed:-- "It is true that the documents, referred to in section 227 would be the original documents, but there is hardly any case where the Court sees the original documents at the time of framing the charge. The reason is that in no case in Greater Bombay the documents referred to in section 173(5) are sent to the Sessions Court. The combined effect of sections 173(5) and 209(c) is that the Magistrate has to receive and send to the Sessions Court the said documents, statements and articles on committing the case to the Court of Sessions. There is no provision in the Code requiring the Sessions court to receive the documents and statements from the police." 9. The above two decisions are sufficient to arrive at a finding that what section 173(5) requires the police to file before the Magistrate are original documents and statements and not copies thereof. It may be as observed in the case of Sudhakar D. Maleker (supra) that a practice is developed in the city of Bombay to supply to the Magistrate copies and not the original. That, however, cannot detract from the requirement of the statute. In this view of the matter question (a) posed by the petitioners is answered in the affirmative i.e. it is imperative for the Investigating Officer by virtue of section 173 of the Code of Criminal Procedure to deposit all documents and statements recorded under section 161 of the Code of Criminal Procedure in the Court of the Metropolitan Magistrate who committed the case to the Court of Sessions. Once it is held that the prosecution is bound to furnish to the Court the original statements, it would follow as of course that the defence should be given a right of inspection. This would be in the interest of justice and fair play and in consonance with the principles of natural justice. Once it is held that the prosecution is bound to furnish to the Court the original statements, it would follow as of course that the defence should be given a right of inspection. This would be in the interest of justice and fair play and in consonance with the principles of natural justice. What use the defence can make of these statements at the trial is a matter which will be Governed by the provisions of section 162. In what manner these statements can be used or whether the same can be used at all has no bearing on the right of the defence to the inspection of the original statements recorded during the course of investigation. I will point out in the later part of this judgement that there are various ways in which the defence can make use of these statements without contravening the provisions of section 162 of the Code of Criminal Procedure. 10. The further point that is required to be commented upon is the effect of the non-compliance of the above requirement of depositing all the original documents and statements before the Magistrate. In my judgment, if the originals are not deposited and only copies thereof are filed, the trial will not be vitiated and a conviction would not become invalid unless prejudice is shown to have been caused to the accused on account of the failure to produce the originals. However, if the defence makes an application before the Sessions Court to take the original documents and statements in its custody in the event of the police not having filed the originals, in my judgment, it would be obligatory upon the Court to do so. To this extent, the Court is bound to implement the mandatory provisions of section 173(5). The same provides that "the Police Officer shall forward to the Magistrate......" (emphasis provided). Hence, the answer to the question (b) raised by the petitioners is answered in the affirmative i.e. if the police has not filed the original documents and police statements recorded under section 161 of the Code of Criminal Procedure and the defence makes an application before the Sessions Court to take the aforesaid original documents in the Court's custody, it would be obligatory upon the Court to do so. 11. 11. In the present case, the prosecution before the commencement of the trial had furnished to the accused copies of the police statements which included the statements of Vithal Bulbaroon Sardesai, Yashwant Jairam Bhalerao and Bhikaji Sambhaji Sarfare. The supply of these copies was obviously because the prosecution proposed to examine these witnesses in support of its case. It appears that during the pendency of the trial, Vithal Sardesai died, hence, he is not available for being examined as a prosecution witness. One Abdul Wahid was examined as an eye-witness. Witnesses Yashwant Bhalerao and Bhikaji Sarfare, the other two eye-witnesses were not examined. There is some controversy raised between the parties, it is the case of the prosecution that they are not available and hence not examined, whereas it is the suggestion of the defence that they are being kept back as, if they are examined they would be against the interest of the prosecution and in favour of the accused. It has be noted that this Bhikaji Sarfare has also featured in the panchanama dated 13th June, 1987 regarding the scene of offence. The Panchanama recites:- "Mr. Sarfare pointed that the assailant on the left hand side spot had fired about 3 rounds from his fire arm on the person of Shri Rusi Mehra and the person on the right hand side spot obstructed the path of the scooter. Mr. Sarfare also pointed out a spot adjacent to the southern footpath of P.B. Marg and mentioned it as the place where a black coloured motor car had been parked in which the assailants had ran away after firing the rounds on Rusi Mehra." 12. The prosecution having furnished the copies of the statements of the aforesaid witnesses would have been bound, if any application was made by the accused at the commencement of the trial, to deposit their original statements in Court. Can it reasonably be held that a right which was available to the accused at the commencement of the trial when the copies of the statements were furnished to them is taken away by the subsequent event i.e. the prosecution thereafter choosing not to examine these witnesses ? Can it reasonably be held that a right which was available to the accused at the commencement of the trial when the copies of the statements were furnished to them is taken away by the subsequent event i.e. the prosecution thereafter choosing not to examine these witnesses ? Can the request now made by the accused be turned down on the technical plea that the accused cannot rely on the contents of the statements in view of the bar under section 162 of the Criminal Procedure Code ? I should think not. The use to which those statements can be put without offending section 162 could be many as illustrated by Shri Ponda. He pointed out that P.W. 15 Vinayak Patil, the Investigating Officer in paragraph 5 of his deposition stated. "At the Police Station I recorded the statements of witnesses viz. Bhikaji Sarfare, Abdul Wahid (P.W. 3), Vithal Sardesai and Jairam Bhalerao." It may be possible in a given case to challenge the above assertion by confronting the witness with the hand-written statements and showing that the hand-writing materially differ from the other admitted hand-writing of the witness, i.e. the Investigating Officer. 13. It may also be possible for the defence by placing reliance on the original documents to verify the date, time and signature of the Investigating Officer appended at the end of these statements. The endorsement regarding the date time of recording the statement and the signature of the Investigating Officer cannot form a part of the statement of the witness. It is the endorsement of the Investigating Officer and he can undoubtedly be cross-examined with reference to the same, if the original statement of the witness is signed by the witness whose statement it purports to be. It may be open to the defence to contend that the said statement has been recorded and signature obtained in contravention of provision of section 162. Seeing the original statement is different from using the contents of it. In my view, it may also be permissible to make use of such statements for the purpose of testing the bona fides of the investigation. It may be possible in a given case for the defence by reference to such part of the statement as is permissible under law to rely upon, to contend that the investigation is dishonest. In my view, it may also be permissible to make use of such statements for the purpose of testing the bona fides of the investigation. It may be possible in a given case for the defence by reference to such part of the statement as is permissible under law to rely upon, to contend that the investigation is dishonest. In this view of the matter the answer to question (c) posed by the petitioner is answered in the negative i.e. if once the prosecution relies upon a statement of particular witness and consequently gives copies thereof through Court, it would not be open to the prosecution to refuse to give inspection of the original documents and statements to the defence if the defence calls upon the prosecution to do so. Consequent upon the aforesaid finding, it follows that the answer to question (d) posed by the petitioners will have to be answered in the affirmative i.e. if the prosecution refuses to comply with such requisitions, trial Court is undoubtedly empowered to, in fact, it is bound to direct the prosecution to give inspection of the original documents and statements to the defence. 14. Section 165 of the Indian Evidence Act deals with the Judge's power to put questions or order production. It provides:--- "165. 14. Section 165 of the Indian Evidence Act deals with the Judge's power to put questions or order production. It provides:--- "165. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question : Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved : Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149, nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted." In my judgment, the above provision is a salutary one and permits of no limitation in the exercise of the said power except the one found in the second proviso. That provides for a limitation on the power of a Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131 or to ask any question which would be improper under section 148 or 149. It is common ground that neither of the aforesaid provisions are set up by the prosecution for resisting the present application of the accused as the same are not applicable. In my view the provisions of section 162 of the Criminal Procedure Code can be no bar to the powers of the Court under section 165 of the Evidence Act. It is common ground that neither of the aforesaid provisions are set up by the prosecution for resisting the present application of the accused as the same are not applicable. In my view the provisions of section 162 of the Criminal Procedure Code can be no bar to the powers of the Court under section 165 of the Evidence Act. In the case of (Raghunandan v. State of U.P.)3, reported in 1974 Cri.L.J. page 453, the Supreme Court observed :--- "It is true that the ban imposed by section 162, Cri.P.C. against the use of a statement of a witness recorded by the police during investigation, appears sweeping and wide. But, at the same time the powers of the Court, under section 165 of the Evidence Act, to put any question to a witness are also couched in very wide terms authorising the Judge in order to discover or to obtain proper proof of relevant facts' to 'ask any question he pleases, in any form, at any time, of any witness or of the parties, about any fact relevant or irrelevant.' The language of section 162, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by section 165 of the Evidence Act in order to secure the ends of justice. A narrow and restrictive construction put upon the prohibition in section 162 so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions and also serve the ends of justice. Section 162 Cr.P.C. does not impair the special powers of the Court under section 165, Evidence Act." In this view of the matter, the answer to question (d) posed by the petitioners will be that the Court to whom a request is made is not only empowered but would be bound to direct the prosecution to give inspection of the original documents and statements to the accused. 15. Shri Shirodkar, the learned Special Public Prosecutor, however, vehemently opposed the grant of the prayers contained in the present petition. 15. Shri Shirodkar, the learned Special Public Prosecutor, however, vehemently opposed the grant of the prayers contained in the present petition. According to him, the accused are not entitled either to the copies of the statements of the witnesses or to the inspection of their originals as the prosecution does not propose to examine the said witnesses. According to Shri Shirodkar, the bar for section 162 is absolute. If the defence is not entitled to use the contents of the statements in view of the bar under section 162, they would not be entitled to the inspection of the original. 16. He placed reliance on the decision of the case of (Tahsildar Singh v. State of U.P.)4, reported in A.I.R. 1959 S.C. Page 1012, wherein it was observed :- "The intention of the legislature in framing section 162 in the manner it did in 1923, was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused." "The section was conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police-officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar." 17. There can be no quarrel with the propositions ennunciated in the above decision but in my judgment the same has no application to the controversy raised in the present petition. In the present case, the controversy that has arisen between the prosecution and the defence is apparent from the cross-examination of P.W. 15 Vinayak Patil, the Investigating Officer. There can be no quarrel with the propositions ennunciated in the above decision but in my judgment the same has no application to the controversy raised in the present petition. In the present case, the controversy that has arisen between the prosecution and the defence is apparent from the cross-examination of P.W. 15 Vinayak Patil, the Investigating Officer. It is the contention of the defence that the statement of Bhikaji Sarfare has been altered. The alteration is in regard to a material portion of the statement. In view of my findings arrived at hereinabove, the defence would be entitled to the inspection of the original documents and statements. What use the defence can make in law of these statements is a matter which may have to be decided after the defence puts them to use. The defence cannot be denied inspection on the hypothetical assumption that no use can be made of the statements. 18. Shri Shirodkar also placed reliance on the case of Sudhakar D. Malekar v. Hemu P. Thakur, (supra). He emphasised the observation of this Court that the practice of the Bombay Courts is to furnish copies and not the originals. Hence, according to Shri Shirodkar, the accused are not entitled to the inspection of the originals. In my judgment, no useful reliance can be placed on the said decision as this Court was dealing with the case where the entire file containing the original documents and statements was misplaced and the submission was advanced on behalf of the defence that no charge can be framed on the basis of the copies. Controversy in the present case is entirely different. It has to be noted that even in that case it has been observed :-- "It is true that the documents referred to in section 227 would be the original documents........" Hence this decision favours the defence and not the prosecution. 19. Controversy in the present case is entirely different. It has to be noted that even in that case it has been observed :-- "It is true that the documents referred to in section 227 would be the original documents........" Hence this decision favours the defence and not the prosecution. 19. Shri Shirodkar next relied upon the decision in the case of (Willie Slaney v. State of Madhya Pradesh)5, reported in A.I.R. 1956 S.C. page 116, wherein the Supreme Court observed :--- "In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself." Placing reliance upon the above observation, Shri Shirodkar contended that no prejudice can be said to have been caused to the accused for non-production of the original documents as the prosecution has not examined the said witnesses. According to him, since the accused are not being prejudiced, they are not entitled to the inspection. In my judgment, for the foregoing reasons, there is no merit in the above contention. In the present case, we are not dealing with the question of prejudice, whether the same is sufficient to set aside or uphold an order of conviction. We are concerned more with a trial being conducted on following the principles of fair play as also the principles of natural justice. If the prosecution has chosen to give inspection of the original statements to the Court, I see no reason why the defence should be denied the same. In my view, non-furnishing of the inspection would be a breach of fair play in the matter of the trial. It would amount to breach of the principles of natural justice. 20. Shri Shirodkar lastly relied upon the decision of this Court in the case of (Rangnath Raoji v. State)6, reported in A.I.R. 1958 Bombay page 390, wherein it has been observed :--- "The object of the criminal trial is not to support at all costs a theory, but to investigate the offence and to determine the guilt or innocence of the accused. The duty of the Public Prosecutor is also equally clear and that is to represent not the police, but the State and this duty he has to perform with fairness, without fear and with full sense of the responsibility attached to his office. Utmost candour and fairness on the part of those conducting the prosecution is necessary. Witnesses essential to the unfolding of the narrative on which the prosecution is based, may be, of course called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution. But the idea that the prosecution must call all the eye-witnesses respective of their number and of their reliability or that they should do the functions of both the prosecution and the defence is not correct." Placing reliance on the above concluding observation, Shri Shirodkar submitted that the prosecution is not bound to examine all the prosecution witnesses. Hence, it is not open to the defence to score a point by contending that the above witnesses are available and the prosecution is suppressing them from the Court. In my judgment, the thrust of the present controversy is not as to whether the prosecution is withholding material evidence. The thrust of the contention of the defence is that there has been a defective investigation or the investigation has been dishonest. Whether the defence succeeds in establishing its allegation will be a matter to be decided at the trial. In my view, the defence has clearly made out a case for grant of the reliefs claimed in the present petition. 21. In the result, the petition succeeds. The impugned orders passed by the learned trial Judge on Exhibits 125, 126 and 127 are set aside. The learned Judge of the trial Court is directed to take the original statements of Vithal Bulbaroon Sardesai, Yashwant Jairam Bhalerao and Bhikaji Sambhaji Sarfare. The learned trial Judge will thereafter give inspection of the original statements of the aforesaid witnesses to the Counsel for the defence. Rule is made absolute. Rule made absolute. -----