LexNARAYANSWAMI versus STATE OF MAHARASHTRA
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588 8 c D NARAYANSWAMI y, STATE OF MAHARASHTRA April 30, 1n1 [K. S. HEGDE AND A. N. GROVER, JJ.l Code of Criminal Procedure, 1898-Section 479A sub-section (!)- Reasonable opportunity of being heard contemplated by section not nzan .. datory, The requirement under sub-section (!) of section 479A of the Code of Criminal Procedure, of giving the witness an opportunity of being heard after the recording of the necessary findings .and before making the complaint is not mandatory. That step is required to be taken only if the court thinks fit-a matter left to the discretion of the trial court. The prosecution of the appellant is therefore not vitiated because such an op- portunity was not given. [594F-GJ Dr. B. K. Pal Chaudhry v. The State of Assam, [1960] l S.C.R. 945 and Dr. Kuppa Goundan and Anr. v. M.S.P. Rajesh, [1966) Supp. S.C.R. 373, distinguished. Rukmani Bai v. G. R. Guvindaswamy Chetty, [1963] M.L.J. 411 and Re: Javvaji Uthanna, A.l.R. 1964 A.P. 368, referred to. [In the instant case adequate opportunity wa! given to the appellant, before the findings were recorded to show cause why ho should not be E prosecuted. Therefore tho Court did not find it necessary to expoess any opinion as to the correctness of the observations of the Madras and Andhra Pradesh High Courts in Rukmani Bai v. Govindaswamy Chetty and In re Javvaji Uthanna that even though sub-section (1) does not manda- torily require that any opportunity should be given to the person complain- ed against there is no reason why the principle of audi alteram partem should not apply.] [S95D-E] F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 G H of 1969. Appeal by special leave from the Judgment and Order dated September 2, 4, 1968 of the Bombay High Court, Nagpur Bench in Criminal Appeal No. 74 of 1968. W. S. Barlingay and A. G. Ratnaparkhi, for the appellant. P. K. Chatterjee and S. P. Nayar, for the respondent. The Judgment of the Court was delivered by Hegde, J.-The only substantial question that arises for deci- sion in this appeal by special leave is as to whether the require- ments of Section 479-A of the Code of Criminal Procedure have been complied with before instituting the complaint from which ( NARAYANSW,l.MI ~-MAHARASHTRA (Hegde, J.) 589' this appeal arises and if they have not been complied with A whether the prosecution is vitiated ? In· July 1965, there was a dacoity within the limits of Rail- way Police Station,.Nagpur. Several properties belonging to the Railways were stolen int· the course of that dacoity. During the investigation of that offence, the Railway Police sought the assist· ance of the local police. Inspector Khandagale (D. W. I) who was incharge of the Tehsil police station directed the appellant, the Sub-Inspector working under him to assist the Railway Police in the investigation'· of the case. Part of 'the investigation was carried on by the appellant. Two of the persons arrested in con- nection with that dacoity were Ambadas and Deorao. They are said to have made certain statements on July 21, 1965. It is further alleged that in pursuance of the information given by Deorao, the police in the presence of the Panchas recovered cer- tain properties. The concerned panchnama was attested by two witnesses viz. Pochanna and Abdul Gani. After the investigation a charge-sheet was filed against several persons including Ambadas and Deorao accusing them of the commission of an offence under Section 395, I. P. C. After preliminary enquiry the case was com- mitted to the court of Sessions, Nagpur and was tried before the Additional Sessions Judge, Nagpur as Sessions Trial No. 8 of 1966 on his file. The trial of the case commenced on June 6, 1966. Pochanna, one of the Panch witnesses was examined on June 9, 1966. He did not support the prosecution. Abdul Gani, the other Panch witness also had been cited as a witness but he was not present in court on June 9, 1966. On June 10, 1966, one person who claimed himself to be Abdul Gani, who had attested the panchnama, was examined. He deposed that he had attested the panchnama and that he was present at the time the recoveries were made. On June 11, 1966, the appellant was examined. The appellant deposed that the person examined on the previous day was Abdul Gani and that person had attested the panchnama in question. Thereafter the case took a new turn. It appears that the accused came to know
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