Harballav Singh and Others vs The State

Das, J.—This reference has come to this Special Bench under Rule 1 of Chapter V of the Rules of this Court. The reference raises the question if the right given to an accused person under proviso (a) to Section 350(1) of the Code of Criminal Procedure is available to persons against whom proceedings u/s 110 of the Code of Criminal Procedure are pending; in other words, the question is if proviso (a) to Section 350(1) of the Code of Criminal Procedure applies to a proceeding u/s 110 of the Code.

The reference has come to this Bench in the following circumstances. A proceeding u/s 110 of the Code of Criminal Procedure was initiated so far back as the 7th of December, 1948 against a number of persons. That proceeding continued before a Magistrate exercising first class powers named Mr. P. Khan. An application for a transfer of the case from the file of Mr. Khan was made to this Court, and the application was dealt with in -- ''Criminal Misc. No. 111 of 1952, D/- 25-4-1952 (Pat) (A)''. Reuben J. (as he then was) passed the following order on the application:

"It has been stated by Counsel for the petitioner that it is possible that all the accused persons in this case may combine in a petition asking for the transfer of the case to another Magistrate and agreeing that, in the event of such a transfer being made, they will not ask for a ''de novo'' trial. If such a petition is filed before the District Magistrate he may pass such order thereon as in his discretion he thinks proper. So far as this Court is concerned there will be no objection if, in these circumstances, he transfers the case to another competent Magistrate selected by him."

It may be stated that the petitioner who had asked for a transfer of the case in this Court was one Foujdar Singh. Before the receipt of the order of this Court by the District Magistrate, Mr. Khan was transferred from the district. The case was then transferred to the present Magistrate, Mr. S. A. Ahmad. Some of the persons against whom the proceeding was pending put in a petition before the present Magistrate that all the witnesses should be recalled and the case tried ''de novo''. It appears that as many as 188 prosecution witnesses and 22 defence witnesses have already been examined in the case. On the 20th of August, 1952, the learned Magistrate dealt with the application for a ''de novo'' trial. He held that proviso (a) to Section 350(1) Criminal Procedure Code did not apply and the petitioners before him had no right to ask for a ''de novo'' trial. Having regard to the great delay which had already taken place, the learned Magistrate dismissed the application for a ''de novo'' trial. The petitioners before the learned Magistrate then moved the learned Sessions Judge of Monghyr. The learned Sessions Judge has made a reference to this Court. His view is that the right given to an accused person under proviso (a) to Section 350(1) of the Code of Criminal Procedure was available to the petitioners before him. On that view the learned Sessions Judge has recommended that the order of the learned Magistrate dated the 20th August, 1952, rejecting the application for a ''de novo'' trial should be set aside and the learned Magistrate should be asked to hold a ''de novo'' trial as prayed for by the petitioners.

The reference made by the learned Sessions judge of Monghyr was first placed before a single judge of this Court who referred it to a Division Bench. As the point involved in this case is of some importance, the Division Bench directed that the case be placed before his Lordship the Chief Justice for being placed before a larger Bench. These are the circumstances in which the case has now been placed before us.

Mr. Murtaza Fazl Ali has appeared as ''ami-cus curiae'' and presented the case of the petitioners before the learned Sessions Judge. We are much indebted to him for the assistance which he has given. These petitioners have not appeared before us in support of the reference. The learned Advocate-General has argued for the State of Bihar and as he had to leave Patna on some urgent piece of work, he has been followed by Mr. K. P. Varma on behalf of the State of Bihar.

A number of decisions have been placed before us. Before I proceed to consider those decisions, it is necessary to read the sections which bear upon the question. Section 350(1) is in these terms :

"350(1) Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may re-summon the witnesses and recommence the inquiry or trial :

Provided as follows :

(a) in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard; * * *"

There is another proviso numbered (b) which has no bearing on the question at issue and I have, therefore, not quoted it. It is clear that Sub-section (1) of Section 350 makes a distinction between an inquiry and a trial, because of the juxtaposition of the two expressions in the sub-section. The expression "trial" has not been defined in the Code of Criminal Procedure, but the word "inquiry" has been defined in Section 4(1)(b). Under that clause, ''inquiry'' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. For the purposes of this case, it may be taken as correct that Sub-section (1) of Section 350 makes a distinction between an inquiry and a trial and gives a discretion to a Magistrate to act on the evidence recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself; or he may re- summon the witnesses and recommence the inquiry or trial; therefore, it is clear that Sub-section (1) of Section 350 gives a discretion to a Magistrate, whether the Magistrate is holding an inquiry or a trial. The sub-section is followed by proviso (a), which states that in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard. Proviso (a) goes beyond mere discretion, and gives a right to an accused person; but the proviso, in express terms, refers to a trial but does not refer to an inquiry; therefore, it cannot be said that the proviso applies to an inquiry ''suo vigore''.

The next section which I should read is Section 117 of the Code of Criminal Procedure. The two sub-sections which are relevant are in these terms :

"117(1) When an order u/s 112 has been read or explained u/s 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued u/s 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant-cases, except that no charge need be framed."

The whole discussion before us has turned on the interpretation of the concluding words of Sub-section (2) of Section 117. So far as the sub-section is relevant for our purpose; it states that where the order requires security for good behaviour the inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases, except that no charge need be framed.

Mr. Murtaza Fazl Ali has contended that by reason of Sub-section (2) of Section 117, proviso (a) to Sub-section (1) of Section 350 of the Code of Criminal Procedure applies to a proceeding u/s 110 of the Code of Criminal Procedure, and a person or persons against whom a proceeding u/s 110 of the Code of Criminal Procedure has been instituted can ask for a ''de novo'' trial when the Magistrate originally holding the inquiry is succeeded by another Magistrate. The learned Advocate-General has contended that the scope of Sub-section (2) of Section 117 is narrowed by two delimiting clauses; one clause is "as nearly as may be practicable" and the second clause is "in the manner hereinafter prescribed for conducting trials and recording evidence in warrant-cases". The contention of the learned Advocate-General is that the clause "as nearly as may be practicable" itself shows that all the provisions occurring in certain subsequent chapters of the Code cannot be applied to a proceeding u/s 110 of the Code of Criminal Procedure. He has also contended that in using the expression "in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases", the Legislature intended to refer to Chapter XXI which deals with trial of warrant cases by a Magistrate and Chapter XXV which deals with the mode of taking and recording evidence in inquiries and trials. His contention is that there is no room for the application of the provisions in Chapter XXIV to a proceeding u/s 110 of the Code of Criminal Procedure. Chapter XXIV, be it stated contains certain general provisions as to both inquiries and trials.

Therefore, the point at issue lies within a fairly narrow compass and it is this: when the Legislature said in Sub-section (2) of Section 117 that an enquiry where the order requires security for good behaviour shall be made as nearly as may be practicable in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases, were they referring merely to Chapter XXI and Chapter XXV, or were they referring to other provisions also which lay down the procedure to be followed in the trial of warrant cases? The contention of the learned Advocate-General is that a narrow construction should be given to Sub-section (2) of Section 117. Mr. Murtaza Fazl Ali has contended that there is no reason why the words in Sub-section (2) of Section 117 should not be given the amplitude of meaning which those words grammatically bear.

This very question has been considered in several decisions, and I now proceed to refer to those decisions. The earliest decision which has been brought to our notice is that reported in -- ''Buroda Kant Roy v. Korimuddin Moonshee'' 4 Cal LR 452 (B). The case was decided, under the old Criminal Procedure Code, and the proceeding in that case was u/s 491 of the Old Criminal Procedure Code relating to an order for security against a breach of the peace. Their Lordships dealt with Section 328 of the old Code which corresponded to Section 350 of the present Code. It was held by their Lordships that notwithstanding the introduction into Section 328 of the words "the accused person" and "conviction", the provisions of Section 328 of the Criminal Procedure Code applied to an inquiry instituted u/s 491, with, a view to enforcing the giving of security against a breach of the peace.

The next decision which has dealt with the point at issue at some length is the Full Bench decision of the Madras High Court in -- ''Venkata-chennayya v. Emperor'' AIR 1920 Mad 337 (C). The decision refers to the meaning of the expression "trial" and the learned Judges of the Full Bench pointed out that the expression "trial", which was not defined in the Code, was sometimes used in a loose sense and sometimes in a very strict sense. Apart, however, from the meaning of the expression "trial", their Lordships held that by reason of Sub-section (2) of Section 117 of the Code of Criminal Procedure, Section 350(1), proviso (a), of the Code applied to a proceeding u/s 107 of the Code. Their Lordships were dealing with a proceeding u/s 107 of the Code of Criminal Procedure. We are dealing with a proceeding u/s 110 of the Code of Criminal Procedure. Both these proceedings are initiated under the provisions in Chapter VIII of the Code of Criminal Procedure; on the question of principle under discussion here, there is no distinction between a proceeding u/s 110 of the Code of Criminal Procedure and a proceeding u/s 107 of the Code of Criminal Procedure. Dealing with the point that the delimiting clauses in Sub-section (2) of Section 117 refer only to Chapter XXI and Chapter XXV, Ayling, J. made the following observations :

"I must confess to great difficulty in the interpretation of this clause. It is certainly true that if the intention of the Legislature had been that ascribed to it on petitioner''s behalf, other language might have been employed; and the specific reference to the mode of recording evidence is somewhat significant of a limitation of the attractive power of the section. On the other hand it would have been perfectly easy to specify Chapters XX, XXI and XXV, if the framers of the Act had only these in mind....

It seems to me that the words of the clause may be held to cover anything which has to do with the procedure in the Magistrate''s Court, and that the right to have the witnesses re-summoned and re-heard conferred by Section 350 is as much a matter of procedure as the right to have prosecution witnesses recalled and cross-examined conferred by Section 256."

Coutts-Trotter, J. said;

"It is argued that this only incorporates Chapters XX and XXI of the Code, which contain specific provisions applicable only to summons and warrant cases, respectively. But the Code contains many general provisions to be found outside these two Chapters which regulate matters of procedure in summons and warrant cases alike, such as the directions as to the manner in which evidence shall be received and recorded, the right of accused persons to be legally represented, and the like. I think the true interpretation of Section 117 is, that it requires the whole of the procedure in a summons or warrant case respectively to be adopted by the tribunal which inquires into a security case."

I am inclined to take the same view as their Lordships of the Madras High Court took in the aforesaid Full Bench decision. I do not think that the so-called delimiting clauses in subjection (2) of Section 117 refer only to the provisions in certain specified chapters of the Code of Criminal Procedure. My view is that they refer to all those provisions which bear upon the manner in which trials in summons--cases or warrant-cases (as the case may be) are conducted. I draw special attention to the expression "hereinafter" occurring in Sub-section (2). If the intention was to refer to the provisions in certain, specific chapters only, it should have been easily possible for the Legislature to mention those Chapters instead of using the very general expression "hereinafter prescribed for conducting trials and recording evidence in warrant-cases."

The learned Advocate-General has drawn our attention to a subsequent Full Bench decision of the same High Court -- In Re: Karuthaswami Servai alias Athiappan Servai, . That case dealt with the question as to if Section 256 was applicable to a proceeding u/s 110 of the Code of Criminal Procedure. It was pointed out that in view of the scope of the enquiry in a proceeding u/s 110 of the Code and with particular reference to the order u/s 112 which takes the place of the charge in such an inquiry, there was no room for the application of Section 256 of the Code; because that section related to the recalling and cross-examination of witnesses after a formal charge had been made. It was on this special ground that it was held that Section 256 did not apply. Their Lordships further pointed out that the observations of Ayling, J. in the earlier Full Bench decision with regard to Section 256 of the Code were ''obiter''. The decision in -- In Re: Karuthaswami Servai alias Athiappan Servai, , does not, however, touch the question at issue before us. On the contrary, Curgenven, J. rightly pointed out that there was no question of the correctness of the earlier decision, in so far as it said that Section 350 of the Code of Criminal Procedure was as much a matter of procedure as the provisions in Chapter XX, Chapter XXI or Chapter XXV.

The question may be considered from another point of view. The provisions relating to judgment occur in Chapter XXVI. On the argument of the learned Advocate-General the provisions in Section 366 in Chapter XXVI would not apply to an inquiry u/s 110 of the Code of Criminal Procedure; because the opening words of Section 366 refer to "the judgment in every trial in any criminal court of original jurisdiction". If the contention of the learned Advocate-General is correct, then the Magistrate holding an enquiry in a proceeding u/s 110 of the Code of Criminal Procedure need not pronounce a formal judgment. He need only pass an one-line order saying that the person must execute a bond to be of good behaviour for a certain period of time. I think it is relevant that such a view could not have been contemplated by the Legislature. An order passed in a security proceeding is subject to an appeal, and it is not likely that the Legislature intended that an order In a security proceeding need not conform to the provisions of a judgment as laid down in Section 366 of the Code of Criminal Procedure.

The Pull Bench decision of the Madras High Court referred to above was followed in the Allahabad High Court in -- ''Mahtab Singh v. Emperor'' AIR 1S37 All 438 (E)'' and also in the Oudh Chief Court in -- AIR 1925 228 (Oudh) . If I may say so with great respect, the reasoning on which the Pull Bench decision of the Madras High Court is based appears to me to be sound. No contrary decision of any High Court has been brought to our notice.

It is necessary, however, to consider two decisions of this Court : one is -- Charan Mahto Vs. Emperor, and the other is an unreported decision in -- ''Criminal Revn. No. 409 of 1952'', decided by a single Judge of this Court on 5-9-1952 (Pat) (H). The latter decision follows the Pull Bench decision, of the Madras High Court and need not detain us any longer. The earlier decision requires some examination. In the earlier decision, the question was whether a person who had been asked to execute a bond to be of good behaviour for a period of one year and was committed to jail for failure to execute the bond, was entitled to ask for bail under the provisions of Section 426 of the Code of Criminal Procedure. Section 426 of the Code of Criminal Procedure, in express terms, refers to the grant of bail to a convicted person. The decision of the Division Bench of this Court was that a person who had been asked to execute a bond for good behaviour was not a convicted person and was not, therefore, entitled to ask for bail under the provisions of Section 426 of the Code. It was observed by Macpherson, J. :

"Even if for certain purposes of procedure a person in respect of whom an inquiry is proceeding, is an accused, he cannot be convicted as he is not accused of an offence. A conviction is the judgment of a legal tribunal adjudging a person guilty of a criminal offence."

As the person who has been asked to furnish security for good behaviour was not a convicted person in the sense of having been convicted of an offence, it was held that he could not apply for bail under the provisions of Section 426. I do not think that the aforesaid decision has any direct bearing on the question at issue before us. It was incidentally observed by Macpherson, J. that a person in respect of whom an inquiry was made in a proceeding u/s 110 of the Code of Criminal Procedure might not be an accused person in the strict sense of the term; but he was a quasi-accused, whatever that expression may mean.

There are a number of decisions in which it has been held that a person who is asked to" show cause as to why he should not execute a bond for good behaviour is an accused person, though he may not be accused of any offence as the word ''offence'' is defined in the Penal Code. I do not think it is necessary to examine those decisions in detail, I need only refer to them :

-- ''Jhoja Singh v. Queen Empress'' 23 Cal 493 (I); -- ''Hopcroft v. Emperor'' 36 Cal 163 (J); --''Queen Empress v. Mutasaddi Lal'' 21 All 107 (K); -- ''Jaggu Ahir v. Murli Shukul'' 34 All 533 (1); and -- ''Queen Empress v. Mona Puna'' 16 Bom 661 (M).

There can be no doubt that the whole scheme of a proceeding u/s 110 of the Code of Criminal Procedure is this. Section 110 empowers the Magistrates enumerated therein to re- quire a person habitually addicted to the commission of offences under Clauses (a) to (e) to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit. Section 112 provides that where a Magistrate deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information receive,d, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties required. Section 113 says that if the person in respect of whom such order is made is present in court, it shall be read over to him or explained to him if fie so desires. Section 114 says that if such a person is not present in court, a summons should be issued calling on him to appear. Section 115 requires the summons or warrant to be accompanied by a copy of the order made u/s 112 and to be delivered in person. These sections provide the procedure preliminary to the starting of the inquiry. Then comes Section 117 which, prescribes the mode of enquiry, and the mode is the same as that of conducting trials in warrant-cases (so far as an inquiry in a proceeding u/s 110 of the Code of Criminal Procedure is concerned). It is obvious that the person against whom the inquiry is made is put in peril and he has to answer the substance of the information which is explained to him if present in court, or a copy of which is given to him if he is not present in court. It is true that proviso (a) to Sub-section (1) of Section 350 uses the words "trial" and "accused". So far as the word "trial" is concerned, there is no difficulty; because Sub-section (2) of Section 117 approximates an inquiry to a trial so far as procedure or mode of trial is concerned. I do not think that there is any particular charm in the use of the expression "accused" in proviso (a) to Sub-section (1) of Section 350. In a proceeding u/s 110 of the Code of Criminal Procedure, nobody else but the person who is asked to show cause can be treated as the accused person.

Therefore, it seems to me that the weight of authority is all in favour of the view that proviso (a) to Sub-section (1) of Section 350 of the Code of Criminal Procedure, applies to an inquiry in a security proceeding u/s 110 of the Code of Criminal Procedure. I would accordingly answer the question referred to this Bench.

It is only necessary to refer to a last decision cited at the Bar by the learned Advocate-General, namely, -- Binode Behari Nath Vs. Emperor, . It is, I think, sufficient to state that the question considered in that decision was whether for the purpose of Section 342 of the Code of Criminal Procedure a person against whom a security proceeding is taken is an accused person or not. Their Lordships held that in view of the provisions in Sub-section (3) of Section 342, it was doubtful if the expression "accused" covered the case of a person called on to give security. Having expressed their doubt, their Lordships decided the case on the footing that no prejudice was caused to the accused person by his non-examination in that particular case. Obviously, that case does not lay down any rule of law or principle, which can be of any assistance in solving the problem before us.

As the whole case is before us, it is necessary to pass a final order. For the reasons which I have given above, I would accept the reference made by the learned Sessions Judge of Monghyr, set aside the order of the learned Magistrate dated the 20th of August, 1952, rejecting the prayer for a ''de novo'' trial. The accused persons had the right to ask for a ''de novo'' trial, and if they wished to exercise that right, the learned Magistrate had to try the case ''de novo'' and re- summon and re-examine all the witnesses.

It is unfortunate that this case is pending since 1948. It is obvious to us that the learned Magistrates who have been dealing with the case did not exercise strict control over the proceedings; nor did they try to hold the trial with expedition and method. It is necessary that the ''de novo'' inquiry should now be held as quickly as possible; it would be best if the Magistrate fixes a date convenient to both parties, resummons all the witnesses in batches, and holds the inquiry ''de die in diem'' so that it may be disposed of as expeditiously as possible.

Narayan, J.

I entirely agree with my learned brother and have nothing useful to add. The point raised has been considered in several authorities which though not binding on us appear to have dealt with the question fully. No decision of any Court in India has been cited before us in which a contrary view may have been taken, and the Full Bench of the Madras High Court in -- In Re: Karuthaswami Servai alias Athiappan Servai, , has not and could not dissent from the view which had been expressed in the earlier Full Bench decision. The point considered in the subsequent Full Bench decision is a different one which did not directly arise in the earlier Full Bench decision.

Jamuar, J.

I am of the same opinion as my brother, Das, J.