# NARAYAN RAO v. THE STATE OF ANDHRA PRADESH - **Citation:** [1958] 1 S.C.R. 283 - **Court:** Supreme Court of India - **Decided:** 1956-11-20 - **Case number:** CRIMINAL APPELLATI> JURISDICTION : Criminal Appeal No. 97 of 1957 - **Bench:** B. P. Sinha, Jafar Imam, J. L. Kapur - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narayan-rao-v-the-state-of-andhra-pradesh-1453 - **Pages:** 13 ## Headnote Sessions Trial-Proceeding on Police Report-Omission· of Police Officer to furnish necessary copies to the accused-Duty of inquiring Magistrate-Validity of proceeding and trial-Code of Criminal Procedure -(Act V of 1898), as amended by the amending Act of 1955 (26 of 1955), SS. 173(4), 207A(3), 537. The word 'shall' occurring in sub-s. ( 4) of s. 173 and sub-s. (3) of s. 2Q7 A of the Code of Criminal Procedure is not mandatory but directory and a non-compliance with the provisions of those subsections, unless it can be shown to have prejudiced the accused person in his defence, cannot invalidate the commitment proceedings or the subsequent trial. Magistrates holding inquiries under s. 207A(3) of the Code of Criminal Procedure must, however, be circumspect and see that an accused person is not handicapped in his defence by any omission on the part of the Police Officer to furhish him with necessary copies. Where such non-compliance is found : to cause any prejudice to the accused, the Court should in the interest of justice reopen the proceedings and insist on a full compliance with the provisions. When it causes no prejudice, it is a mere irregularity curable under s. 537 of the Code. Abdul Rahman v. The King-Emperor, (1929) L.R. 55 I.A. 96, Pulukurl Kotayya v. King-Emperor, (1947) L.R. 74 I.A. 65 and Gurbachan Singh v. The State of Punjab, Cr. A. No. 48 of 1957 applied. 1957 N. Subramania Iyer ,., The 0 fficia/ Receiver, Qui/on Sinha J. 1957 July, 15. 1957 Narayan Rao •• The State of Andhra Pradesh Sinha J. 284 SUPREME COURT REPORTS [1958] Consequently, in a case where an accused person was committed to the Court of Session on a charge under s. 302 of the Indian Pena.I Code and found guilty thereunder by the Sessions Judge and awarded the capital sentence and the order of conviction and Eentencc was unassailable on merits, but the Police Officer had omitted to furnish him copies as required by s. I 73( 4) and the inquiring Magistrate to cause such copies to be furnished to him ·under s. 207A(3) of the Code of Criminal Procedure and such omission could not be shown to have in any way prejudiced the accused person in his defence, it was a mere irregularity that did not vitiate either the commitment proceedings or the trial and was cured by s. 537 of the Code. CRIMINAL APPELLATI> JURISDICTION : Criminal Appeal No. 97 of 1957. Appeal by special leave from the judgment and order dated November 20, 1956, of the Andhra Pradesh High Court at Hyderabad in Criminal Confirmation Case No. 18 of 1956 and Criminal Appeal No. 240 of 1956 arising out of the judgment and order dated April 25, 1956, of the Court of the Sessions Judge at Karimnagar in Criminal Case No. 9/8, of 1956. R. C. Prasad, for the appiellant. R. H. Dhebar and T. Af. Sen, for the respondent. 1957. July 15. The Judgment of the Court was delivered by SINHA J.-The main question for determination in this appeal by special leave is whether and, if so, how far non-compliance with the provisions of ss. 173(4) and 207 A(3) of the Code of Criminal Procedure, has affected the legality of thl~ proceedings and the trial resulting in the conviction of the appellant. The appellant was tried by the learned Sessions Judge of Krimnagar in what used to be the State of Hyderabad (now part of the State of Andhra Pradesh), under s. 302 of the Indian Penal Code, for the murder of his brother Baga Rao, and sentenced to death. The conviction and the sentence were affirmed by the High Court of Judicature of Andhra Pradesh,. at Hyderabad, on appeal and on a reference by the learned Sessions Judge. Along with the appellant, three other persons, named Lingarao, the appellant's brother, Narsingrao, the nephew of the appellant and son of Lingarao S.C.R. SUPREME COURT REPORTS 285 1957 Narayan Rao v. aforesaid, and Mahboob Ali, said to be a close friend of the other accused were also tried under s. 302, read with ss. 34 and 109 of the Indian Penal Code, and convicted and sentenced to imprisonment for li ## Text S.C.R. SUPREME COURT REPORTS 283 orders of the courts below annulling the usufructuary mortgage bond in question set aside and the transaction held binding on the estate of the insolvents. It follows that the lease back to the mortgagors being a part of the same transaction is equally binding on the estate of the insolvents. The appellant is entitled to his costs throughout, to come out of the estate in the hands of the Official Receiver who must pay his own costs. Appeal allowed. NARAYAN RAO v. THE STATE OF ANDHRA PRADESH (B. P. SINHA, JAFAR IMAM AND J. L. KAPUR JJ.) Sessions Trial-Proceeding on Police Report-Omission· of Police Officer to furnish necessary copies to the accused-Duty of inquiring Magistrate-Validity of proceeding and trial-Code of Criminal Procedure -(Act V of 1898), as amended by the amending Act of 1955 (26 of 1955), SS. 173(4), 207A(3), 537. The word 'shall' occurring in sub-s. ( 4) of s. 173 and sub-s. (3) of s. 2Q7 A of the Code of Criminal Procedure is not mandatory but directory and a non-compliance with the provisions of those subsections, unless it can be shown to have prejudiced the accused person in his defence, cannot invalidate the commitment proceedings or the subsequent trial. Magistrates holding inquiries under s. 207A(3) of the Code of Criminal Procedure must, however, be circumspect and see that an accused person is not handicapped in his defence by any omission on the part of the Police Officer to furhish him with necessary copies. Where such non-compliance is found : to cause any prejudice to the accused, the Court should in the interest of justice reopen the proceedings and insist on a full compliance with the provisions. When it causes no prejudice, it is a mere irregularity curable under s. 537 of the Code. Abdul Rahman v. The King-Emperor, (1929) L.R. 55 I.A. 96, Pulukurl Kotayya v. King-Emperor, (1947) L.R. 74 I.A. 65 and Gurbachan Singh v. The State of Punjab, Cr. A. No. 48 of 1957 applied. 1957 N. Subramania Iyer ,., The 0 fficia/ Receiver, Qui/on Sinha J. 1957 July, 15. 1957 Narayan Rao •• The State of Andhra Pradesh Sinha J. 284 SUPREME COURT REPORTS [1958] Consequently, in a case where an accused person was committed to the Court of Session on a charge under s. 302 of the Indian Pena.I Code and found guilty thereunder by the Sessions Judge and awarded the capital sentence and the order of conviction and Eentencc was unassailable on merits, but the Police Officer had omitted to furnish him copies as required by s. I 73( 4) and the inquiring Magistrate to cause such copies to be furnished to him ·under s. 207A(3) of the Code of Criminal Procedure and such omission could not be shown to have in any way prejudiced the accused person in his defence, it was a mere irregularity that did not vitiate either the commitment proceedings or the trial and was cured by s. 537 of the Code. CRIMINAL APPELLATI> JURISDICTION : Criminal Appeal No. 97 of 1957. Appeal by special leave from the judgment and order dated November 20, 1956, of the Andhra Pradesh High Court at Hyderabad in Criminal Confirmation Case No. 18 of 1956 and Criminal Appeal No. 240 of 1956 arising out of the judgment and order dated April 25, 1956, of the Court of the Sessions Judge at Karimnagar in Criminal Case No. 9/8, of 1956. R. C. Prasad, for the appiellant. R. H. Dhebar and T. Af. Sen, for the respondent. 1957. July 15. The Judgment of the Court was delivered by SINHA J.-The main question for determination in this appeal by special leave is whether and, if so, how far non-compliance with the provisions of ss. 173(4) and 207 A(3) of the Code of Criminal Procedure, has affected the legality of thl~ proceedings and the trial resulting in the conviction of the appellant. The appellant was tried by the learned Sessions Judge of Krimnagar in what used to be the State of Hyderabad (now part of the State of Andhra Pradesh), under s. 302 of the Indian Penal Code, for the murder of his brother Baga Rao, and sentenced to death. The conviction and the sentence were affirmed by the High Court of Judicature of Andhra Pradesh,. at Hyderabad, on appeal and on a reference by the learned Sessions Judge. Along with the appellant, three other persons, named Lingarao, the appellant's brother, Narsingrao, the nephew of the appellant and son of Lingarao S.C.R. SUPREME COURT REPORTS 285 1957 Narayan Rao v. aforesaid, and Mahboob Ali, said to be a close friend of the other accused were also tried under s. 302, read with ss. 34 and 109 of the Indian Penal Code, and convicted and sentenced to imprisonment for life. Their appeals also were heard along with the appeal preferred by the appellant and by a common judgment, the High Court dismissed all the appeals and confirmed the convictions and sentences passed against all the four accused persons. This appeal concerns only Narayan Rao who had been sentenced to death by the Courts below. TMStateoj Andhra Pradesh The facts of the case are short and simple. The murdered man Baga Rao, who was an excise contractor, had separated from his other brothers aforesaid, and had partitioned the family lands. There were differences amongst the brothers which had led to arbitration proceedings a few months earlier, which did not satisfy Baga Rao. On the Saturday previous to the Monday, December 26; 1955, which was the day · of the occurrence, there was a quarrel between Baga Rao on one side and Lingarao and Narsingrao on the other in the field said to belong to Baga Rao. The parties reside in village Kollamaddi taluk Sircilla, district Karimnagar. At about 7 a.m., on the morning of December 26, 1955, Baga Rao had been proceeding from his village towards Nirmal side. The accused,. who appears to have been lying in wait for Baga Rao, came running from behind and the appellant fell upon Baga Rao with his knife. The other accused persons caught hold of Baga Rao and the appellant inflicted several injuries on his person with his knife (M.O. 13). at first, Baga Rao got himself released from the grip of Narsingrao but the latter chased him and overtook him. ·All the accused overpowered him by catching hold of the different parts of his body and the appellant stabbed him in the regions of the neck, abdomen, thigh and other parts of his body, the fatal injuries being in the neck and the abdomen. At the Hme of the occurrence, P.W. 1 father's brother of the appellant, who also was proceeding towards Nirmal, saw most of the occurrence and the, out of fear, hid himself in a hut nearby. P.W. 2-a boy -of about 12 Sinha J. 1957 ~varayan Rao .. The State of .4ndhra Pradesh Sinha J. 286 SUPREME COURT REPORTS [1958] years-a student of 4th standard in a Government school, was also proceeding in that direction that morning, and saw the whole occurrence from beginning to end from a short digtance of a few yards. This young boy claimed the murdered Baga Rao as his maternal uncle, stating that his mother is the sister of Baga Rao. But the wife of the murdered man, P. W. 6, stated in cross-examination that P.W. 2-Ramchander Rao is distantly related to her husband and that he is not the son of her husband's sister. The father of the murdered man, Chat:riah, aged about 85 years, who has been examined as defence witness No. l, disclaimed all relationship with the said P. W. 2, but stated that he is related to Dharmiah, P.W. 1, who is no other than his full brother. Chatriah, the father, had been examined to support the defence suggestion that it was P.W. 1, Dharmiah Rao and his son who got Baga Rao murdered and falsely implicated the accused persons. That evidence has naturally not been accepted by the courts below because such a case was never sought to be made out at any previous stage of the proceedings until his examination in court. D. W. 2 who claims to be the son-in-law of P. W. 1, was examined only to prove that there had been a rivalry between P.W. 1 and the accused persons for the pruchase of some land. His evidence was rejected as vague and of no relevance. The case against the appellant, as also against other accused persons not before this Court, rested mainly on the evidence of Dharmiah P.W. 1 and Ramchander Rao, P.W. 2, who figure as the eye witnesses. Besides their testimony, there is the evidence of the recovery of the blood-stained garments from the houses of the accused persons and the blood-stained knife found near the dead body, and identified in court as belonging to the appellant, which were all found by the chemical examiner, to have stains of human blood. The courts below have relied upon the evidence of the ·eyewitnesses corroborated by the incriminating circumstances aforesaid, and have agreed in convicting and sentencing the accused as stated above. S.C.R. SUPREME COURT REPORTS 287 We have been taken through the evidence in this case and after having heard counsel for the appellant, we do not see anv reasons to differ from the courts below in their estimate· of the evidence adduced by the prosecution in support of the case against the appellant. Hence, in our opinion, there is no ground for interference with the conclusions of the courts below on the merits of the case. It now remains to consider the question of law which has been seriously pressed upon us. It has been argued, as was admitted by the learned Government Advocate before the High Court, that the provisions of ss. 173(4) and 207A(3) of the Code of Criminal Procedure, have not been complied with, and that, as a necessary consequence of those omissions, the entire proceedings and the trial are vitiated. It is convenient at this stage to set out the course, in some respects rather unusual, of the proceedings before the police and the committing magistrate as also at the trial before the learned Sessions Judge. When P.W. I aforesaid informed Gopal Rao (P.W. 8)-Police Patel-about the occurrence, he drew up the first information report at about 11 a.m., on December 26. All the four accused were named as the culprits in the first information report. He issued that report to the station house, Gambhiraopet, about 5 miles from the place of occurrence. The Sub-Inspector of police, P.W. 11, proceeded to the spot and prepared the inquest report. He found the throat of the deceased cut, besides other injuries on the left side of the stomach and right thigh and three wounds on the left hand. Two panchas, Lachmayya and Ramayya (P.W. 10), were called by the police officer and in their presence and under their signatures,,. he entered a long note as to what the panchas saw on the spot, and then follows the substance of the statements of the eyewitnesses, P.W.s 1 and 2 aforesaid. This record of the statements of the two eye-witnesses, aforesaid, made the same day when the occurrence took place, has been made to serve the double purpose of what the police officer and the panchas aforesaid saw and heard at the spot, as also the record of the substance of the M2SC/61-9 1957 Narayan Rao v. The State of Andhra Pradesh Sinha J. 1957 Narayan Rao v. The State of Andhra Pradesh Sinha J. 288 SUPREME COURT REPORTS [19 58 two main witnesses for the prosecution before the investigating police officer. The post mortem report, made the next day, December 27, corroborated the nature of the injuries stated above, and added that the incised wound across the lower part of the neck, had cut the vital organs like trachea, oesophagus and the jugular vein. The prosecution also proved, as exhibit P-5, the panchnama prepared the same day and signed not only by the panchas but purporting to have been signed also by the accused persons. This document is a record which is a complete confession of the crime from the beginning to the end .by all the accused persons. This was highly irregular, but fortunately, it was not a jury trial and has not, therefore, done much harm to the accused persons, but certainly the provisions of the Evidence Act and of the Code of Criminal Procedure have not been observed. On January 10 and 11 , 1956, the learned Munsiff-Magistrate recorded the full length statements of Ramchandar Rao as P. W. I, and of Dharmiah Rao, P. W. 2, under s. 164 of the Code of Criminal Procedure. Apparently, the police, apprehending that those two persons were related to three out of the four accused, took the precaution of havirig their statement so recorded. The police report under s. 173 of Criminal Procedure Code was made by the investigating police officer on January 11, 1956, and was placed before the MunsiffMagistrate on January 12. It gives a very complete statement of the prosecution case and the names and full description of the witnesses to be examined in support of the prosecution case. The learned MunsiffMagistrate appears to have examined the investigating police officer as P. W. 1, and the two eye-witnesses, Dharmiah and Ramchander Rao, as P.W.s 2 and 3, and the medical officer as P.W. 4, on or about February 15, 1956. The record of the statement of the medical officer appears in the paper book, but the evidence of the other three witnesses does not appear in the paper book. On February 16, 1956, the learned Munsiff-Magistrate put very detailed questions to each one of the accused persons and placed the evidence of all the witnesses examined by him in detail, to the S.C.R. SUPREME COURT REPORTS 289 accused persons who have denied their complicity in the crime and who alleged enmity with the two eyewitnesses aforesaid. The committal order, if any, is not before us. The learned Munsiff-Magistrate framed a charge for murder under s. 302, against the appellant, and for participation in the crime, against the other three accused, under s. 302, read with ss. 34 and I 09 of Indian Penal Code. He again put a number of questions to each one of the accused persons as to what they had to say against the charges framed and as to what they had to say in their defence. lt does not appear that before the learned MunsiffMagistrate who was holding his inquiries under s. 207A(3) and (4), any grievance was made that the provisions of s. 173(4) had not been complied with by the police officer in-charge· of the investigation. Nor does it appear that any request was made, to call upon the police officer concerned, to furnish to the accused, copies referred to in sub-s. ( 4) of s. 173 of the Code. There is no indication in the record that even when the accused persons were placed on their trial before the learned Sessions Judge,' any such grievance or any such request was made to that court. The cross-examination of the eye-witnesses aforesaid has been done at some length, and there are also references to the record made by the police officer during the investigation. It was only after the conviction and sentences of the accused persons by the learned Sessions Judge, when the appeals were preferred to the High Court, that the ground is raised, for the first time, in the memoranda of appeal in these terms: "The lower court has lost sight of the fact that the mandatory provisions of ss. 173, 207 A and other sections of the Code of Criminal Procedure have not been complied with, and this fact has caused a complete failure of justice." The High Court, while dealing with this ground of appeal, has o.bserved ~hat the learned qoyernment Advocate, while concedmg that the comm1ttmg court had not complied with the provisions of those sections, had urged that that omission was not sufficient to 19S7 Narayt111 Rao "· The State of Andhra Prat/em SlnhaJ. Narayan Rao •• The State of .tndhra Pradesh SinhaJ. 290 SUPREME COURT REPORTS [1958J vitiate the trial unless the accused succeeded in show ing that they had been prejudiced in their defence· They further observed that when the accused got the copies in the Sessions Court before the recording of the statement of the witnesses, it could not be said that the accused had been so prejudiced. The High Court finds, as a fact, that the accused got the necessary copies of the depositions of the witnesses in the Sessions Court before the statements of the prosecution witnesses were recorded by that court. The High Court also remarked that it was not denied that the copies were supplied a day earlier, but that there was nothing to show that the accused made any grievance that the time at their disposal was too short to enable them to cross-examine the prosecution witnesses, or that they prayed for an adjournment of the case in order to enable them to effectively. cross-examine those witnesses. In view of these considerations, the High Court held that the accused had failed to show any prejudice. Before us, no attempt was made to show that the non-compliance with the provisions of ss. 173(4) and 207A(3) had caused any prejudice to the accused. The learned counsel for the appellant sought to argue that the omission had the effect of vitiating the entire proceedings ending in the trial of the accused, and that, therefore, ipso facto, a fresh trial became necessary irrespective of whether or not the accused had shown any prejudice. In other words, he contended that these illegalities rendered the proceedings null and void and that the Court need not stop to consider the question of prejudice. Section 173, sub-s. (4), of the Code of Criminal Procedure was amended by the Code of Criminal Procedure Amendment Act, 26 of 1955, by adding the following: "( 4) After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant e:x tract S.C.R. SUPREME COURT REPORTS 291 thereof, on which the prosecution proposes to rely, 19s1 including the statements and confessions, if any, Narayan Rao recorded under section 164 and the statements recorded Th 8v. 1 1 under sub-section (3) of section 161 of all the persons Andh~a ra;,~esh w~om the prosecution proposes to examine as its 81;;;;;;,, witnesses. (5) Notwithstanding anything contained in subsection ( 4), if the police officer is of opinion that any part; of any statement recorded under sub-section (3) of section 161 is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and, in such a case, he shall maJ