P L D 1960 Dacca 344 (PLP)

(ii) to allow the accused to use the statements to contradict the witnesses in cross‑examination. It is needless to say that the right given to the accused by this subsection is a very valuable right for cross‑examination of the prosecution witnesses. Any attempt to deprive the accused of this privilege which this' subsection confers on him may result in serious prejudice to the accused. Having regard to what we take to be the scheme of the Act, we are clearly of opinion that this is a mandatory provision in the Act.

11. Now the question is : Will the infraction of this mandatory provision vitiate a trial ? Mr. Chowdhury thinks it will. In support of his contention, he has relied on the decision of the Privy Council in the case of N. A. Subramania lyer v. King Emperor (28 I A 257).

12. In the above case, a man was tried on charges of extortion in respect of forty‑one criminal acts extending over a period of two years in contravention of the Code providing that a man can only be tried at one trial for three offences which had been committed within a period of twelve months. The procedure adopted in that case was one which the. Code positively prohibited. Hence, their Lordships remarked that they were unable to refer disobedience of an express provision' of law as to the mode of trial as a mere irregularity.

13. We have already found that subsection (7) of section 6 has nothing to do with the mode of trial. Hence, the present case is clearly distinguishable from the case of N. A. Subramania v. King‑Emperor.

14. Here we may point out that the above case has been distinguished by the Privy Council itself in the case of Abdul Rahman v. The King‑Emperor (54 I A 96). In Abdul Rahman's case, it was held by their Lordships that the provisions of section 360, which requires that the deposition of each witness is to be read over to him, had not been complied with. They then proceeded to discuss whether non‑compliance in this respect would vitiate a trial. They distinguished the case of N. A. Subramania lyer v. King‑Emperor and summed up their views as follows :‑

"To sum up, in the view which their Lordships take of the several sections of the Code of Criminal Procedure, the bare fact of such an omission or irregularity as occurred in the case under appeal, unaccompanied by any probable suggestion of any failure of justice having been thereby occa sioned, is not enough to warrant the quashing of a conviction, which, in their Lordships' view, may be supported by the curative provisions of sections 535 and 537." Similarly, in the case of Pulukuri Kottaya and others v. Emperor (A I R 1947 P C 67), their Lordships, while considering section 162 of the Code of Criminal Procedure, observed at page 69: "The right given to an accused person by this section is a very valuable one and' often provides important material for cross‑examination of the prosecution witnesses. However slender the material for cross‑examination may seem‑ to be, it is difficult to gauge its possible effects. Minor inconsis tencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness prevaricate; and may lead to the ultimate break‑down of the whole of his evidence and, in the present case, it has to be remembered that the accused's contention was that the prosecution witnesses were false witnesses. Courts in India have always regarded any breach of the proviso to section 162 as a matter of gravity. A I R 1945 Nag. 1, where the record of statements made by witnesses had been destroyed, and 53 All. 458, where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the convictions being quashed. Their Lordships would, however, observe that where, as in those two cases; the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused." In the face of the above pronouncements, it is no longer open to contend that the mere fact that an imperative statutory rule of procedure has been broken is enough to vitiate a trial or proceeding. It is further clear that in such cases the Court should see whether the omission or irregularity has worked actual injustice to the accused.

15. This view also finds support from a decision of a Division Bench of this Court in The Crown v. Darog Ali ((1956) 8 D L R 190). In this case, Rahman, J., relying on the Privy Council decision in A I R 1947 P C 67, held that non‑availability of the police diary at the time of cross‑examination involves a breach of mandatory provisions of section 162 of the Code of Criminal Procedure aid that, only in the event of the accused being prejudiced by the breach of the provision, a re‑trial should be ordered. It is thus clear that mere breach of this provision, even though mandatory, cannot be said to be an illegality necessarily vitiating a trial or proceeding, and, unless the accused is prejudiced, it will not warrant quashing a conviction. Consequently, the sole test is whether the accused has been prejudiced by the said irregularity.

16. In the present case, the relevant facts are as follows: On 29‑1‑1959, the Special Judge fixed 9‑2‑1959 for trial and summoned P. Ws. 1 to

10. On 9‑2‑1959, as soon as the accusation was read over and explained, the accused pleaded not guilty and then filed a petition stating that he had not been supplied with the copies of statements of the witnesses and prayed for an adjournment with a direction on the Public Pro secutor to supply the defence with the copies of statements. As the Public Prosecutor undertook to supply the statements of 4 P. Ws. by that evening and the rest by 10 a.m. on the next day, the defence did not press for an adjournment. The Public Prosecutor, however, did not supply any statement at all in the evening... He gave the statements of 8 witnesses on the next day, i.e., on 10‑2‑59 at about 10‑54 a.m. and of some witnesses on 11‑2‑1959. and of one witness on 12‑2‑1959. He did not give at all the statement of P. W. Mansurar Rahman.

17. Mr. Chowdhury contended that the defence really got the statements of some of the witnesses on the next day at a time when the case was going on and they, therefore, did not really get any benefit from the said statements. The learned Deputy Legal Remembrancer has contended that the defence was not prejudiced by this delay in supplying the statements. He has further contended that by not pressing the objection on 9‑2‑1959 before the Judge the defence really waived the delay and hence no question of prejudice would arise in this case. We have really failed to appreciate this contention of the learned Deputy Legal Remembrancer.

18. The defence did not press for an adjournment because the Public Prosecutor undertook on 9‑2‑59 to give statements of five witnesses by the evening and the rest on the following day at 10 a.m. The Public Prosecutor, however, did not carry out that undertaking and did not supply any statement that evening. On the next day, at 10‑45 a.m., he gave the statements of eight witnesses. On that day, four witnesses including P. W. Asirul Huq and P. W. E. A. Hashmi, Magistrate, were examined. They were very material witnesses in this case. The receipt of the statements of these two witnesses at the time of trial could not have been of much assistance to the defence. Furthermore, the statement of` the material witness Mansurar Rahman was not supplied at all. Hence, on the facts and circumstances of the case, we are satisfied that the accused‑appellant was seriously pre judiced. (i) by the statements not being made available to him in proper time ; and (ii) by non‑supply of the statement of P. W. Mansurar Rahman. In our opinion, this defect cannot be cured under section 537 of the Code of Criminal Procedure. We have, therefore, no other alternative but to set aside the conviction and sentence of the appellant and to remand the case for re‑hearing.

19. Mr. Chowdhury's prayer that the case may be tried by another Special Judge at Dacca seems to be reasonable. Hence, we' grant this prayer. Let this case be re‑tried by a Special Judge other than Mr. A. M. Hossain, Special Judge.

20. Before leaving this case, we would like to impress upon the Government that the clear provisions of law such as we have in subsection (7) of section 6 of the Act should be obeyed strictly. Non‑supply of statements mentioned in this subsection may be regarded, in the words of their Lordships of the Privy Council in the case of Mahadeo v. The King (AIR 1936PC242), as violation of: "fundamental rules of practice, necessary for the due protec tion of prisoners and the safe administration of criminal justice." Of late we have noticed that the State is not strictly following this subsection. It cannot be gainsaid that the State is expected to adhere to the requirements of this subsection. Any omission on the part of the State will defeat the right which the Legislature bestows on a person under trial.

21. The Director‑General of the Bureau of Anti‑Corruption who appeared before us expressed certain difficulties in practical working of subsection (7) of the section. The Government may consider the desirability of framing rules under section 12 of the Act for carrying out the general purpose of the Act. We think it is desirable that a Special Judge before the commencement of the trial should see that the requirements of subsection (7) are complied with. By doing so, he will not only save his time but will also avoid the possibility of a re‑trial.

22. Till the rules are framed, we suggest the following to facilitate quick and proper disposal of cases under this Act :‑

(1) The Special Judge may generally fix the date of trial at least three weeks ahead and the parties may be informed of the said date at least two weeks before the trial. (2) Copies of the statements to be filed by the State in Court at least two weeks before the trial. (3) The accused to be asked to take the said statements from the Court at least one week before the trial.

23. There seems to be no bar in adopting this procedure in order to carry out the provision of subsection (7) of section 6 of the Act. As already stated, the object of this particular sub section is to confer some right on the accused. The‑ denial to the accused of the full benefit of this section may no doubt seriously prejudice the accused and, in some cases, it may be said that he bad not a fair trial. HASAN, J ‑I agree. K. B. A. Re‑trial ordered.