In Re: Bogi Reddi Ankamma and Others

Bardswell, J.—The five petitioners come in revision against the order of the Sessions Judge of Guntur, directing that they stand their trial at

the Sessions on a charge of murder in addition to a charge u/s 201, I.P. Code, already framed by the Committing Magistrate. They ask on various

points of law that the commitment on the charge of murder may be quashed.

A charge sheet was put in against them and sixteen others by the Station House Officer, Bapatla, the offences stated being those punishable

under Sections 302 and 201, I.P. Code. In the charge sheet the petitioners figured as accused 3, 4, 5, 8 and 16. The Stationary Sub-Magistrate,

Guntur, who held the preliminary enquiry, discharged sixteen of the accused, including all the petitioners, in respect of both offences and, while

discharging the first accused (Ankamma) before him in respect of the offence of murder, framed a charge against him u/s 201 and committed him

to the Sessions to stand his trial on that charge. The Sessions Judge, on reading the committal order, issued, on his own motion on 25th July, 1932,

notice to (1) accused 1, 4, 6, 7, 9 to 15 and 17 to show cause why they should not be committed on a charge of murder; (2) accused 2, 3, 5, 8

and 16, the present petitioners, to show cause why they should not be committed for offences punishable under Sections 302 and 201, I.P. Code.

After hearing the petition the learned Judge, in his Criminal Revision Proceedings No. 22 of 1932, of the same date, passed orders that accused

2 should be committed to the Sessions on a charge of murder and that the petitioners should be committed to the Sessions for the offence u/s 201,

I.P. Code. The Sub-Magistrate committed these several persons to> the Sessions accordingly. This also was on 26th July, 1932. On 8th August,

1932, the Public Prosecutor made an application to the Sessions Judge u/s 338, Cr.P. Code, in which he represented the expediency of tendering

a conditional pardon to Ankamma (accused 1) in order that he might be examined as witness against the other accused, whether for the

prosecution or on behalf of the Court.

The learned Judge then tendered a pardon to Ankamma, and adjourned the case (S.C. No. 24of 1932) against him sine die, and directed that

he should be heard as a witness, though not as a prosecution witness, as the right of the prosecution to summon an additional witness, was, to use

his own words, ""exhausted u/s 219, Cr.P. Code."" In another order, however, of the same date, he adjourned the case (S.C. No. 36 of 1932)

against the petitioners to 4 P.M. the next day, in order to enable the prosecution to summon Ankamma before the Committing Magistrate under

that very Section 219. His reasons for adjourning the case were that, if Ankamma repeated his version, the interests of justice would require that

some or all of the petitioners and others should be tried for murder and that some or all of those others should be tried for the offence u/s 201, I.P.

Code. On the following day, 9th August, 1932, after Ankamma had been examined as a witness by the Committing Magistrate, he passed an

order that the charges against the petitioners were to be u/s 302 as well as u/s 201, I.P. Code.

One ground on which this order is attacked in revision is that it was a review, such as was not within his competence, by the Sessions Judge of

his revisional order of 26th July, 1932. It is not disputed that a Court cannot revise its own revisional order. Even a High Court cannot do this:

Ranga Rao, In Re: B. Runga Rao, . The learned Judge, however, has tried to show that in his order of 9th August, 1932, he was not revising his

earlier order, dated 26th July, 1932, but only interpreting it; but the learned Public Prosecutor does not try to support a great part of the reasoning

by which he tries to show this, nor, indeed, can it be supported. He sets out that, in his order of 26th July, 1932, he should have said merely that

he had directed the Committing Magistrate to commit accused 3, 4, 5, 8 and 16 (petitioners) for trial and that, when he said further that the trial

was to be ""for the offence u/s 201, I.P. Code"" those additional words were mere surplusage. At least this is what he clearly means, though he has

only underlined the words ""Section 201"" as being by way of surplusage. That he should have so expressed himself is most astonishing. By the

terms of Section 437, Cr.P. Code, under which the order of 26th July, 1932, must be taken to have been passed, the Sessions Judge may order

that a person, who has been improperly discharged by an inferior Court in a case triable exclusively by the Court of Session, be committed for trial

upon the matter of which he has been, in the opinion of the Sessions Judge, improperly discharged. Obviously the order cannot be confined to a

bare direction that the person is to be committed, but must state the matter in respect of which the commitment is to be made. It is true that Section

437 does not say that the commitment is to be on a specific charge, but the very sections in Ch. XVIII on which the learned Judge relies in support

of his view show that a Magistrate, in committing any person to the Sessions, has to frame against him a charge showing with what offence he is

charged. It was under Ch. XVIII that the Magistrate had to make the commitment. Indeed, I cannot follow the line of argument of the Sessions

Judge in this connection, nor has any attempt been made to explain it. He says, with a strange confusion of tenses, ""the Committing Magistrate

framed a charge u/s 210 and he cancels it u/s 213(2), Cr.P. Code, but when he commits u/s 213(1), Cr.P. Code, he merely commits the accused

for trial without being under any obligation to commit accused for trial for ally particular offence. If he refers to any particular offence, with

reference to his committal, the reference is surplusage"". Why he should have at all dragged in Section 213(2) is past my imagining. The Magistrate

in this case has not cancelled any charge and, had he done so, under the provisions of Section 213(2), there would, of course, have remained

nothing left on which the petitioners could be committed. It almost seems as if the learned Judge thought that, because Section 218 comes later

than Section 213(2), it is some show affected by it, so that for the purposes of applying Section 218, the Magistrate''s action in framing a charge as

required by Section 210 is washed out. It is only by taking it that he had some such idea in his head that I can understand his making the further

remark that ""the distinction between the framing of a charge by the Committing Magistrate and the committal made by him may be seen in Form

No. 33 of the Criminal Rules of Practice,"" though what he means by this is beyond me. Section 210 provides that, when the Magistrate is satisfied

that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the

accused is charged, while in Form 33, which is the form to be used when applying Section 218, there have to be stated the offence in respect of

which there is a charge against the accused; and Section 218 itself is even more explicit. By it when an accused is committed for trial a notification

has to be sent by the Magistrate to the person appointed by the Local Government on that behalf, in which the offence is to be stated in the same

form as the charge, and the charge together with the record of enquiry is to be sent to the Court of Session. The word ""charge"" in this section can

only mean the charge framed as provided by Section 243. It is clear, then, that the Magistrate in committing the petitioners had to frame a charge

showing of what offence they were accused, and this is what he has, in fact, done in framing a charge against them u/s 201, Indian Penal Code, in

accordance with the Sessions Judge''s revisional order of 26th July, 1932.

Mr. Bewes tries to support that part of the learned Judge''s order under review in which it is stated ""I must find that I did not accept the

discharge of the present accused 1 to 6 (petitioners) by the Committing Magistrate as regards Section 302 as final, on grounds other than those on

which the Judge has himself based his finding."" Mr. Bewes points out that there was a notice issued to the petitioners to show cause why they

should not be committed to the Sessions for offences under both Sections 201 and 302, Indian Penal Code, and argues that as the order of 26th

July, 1932, while directing this committal u/s 201, Indian Penal Code, did not specifically discharge the notice as against them in respect of Section

302, there was not a definite disposal of that notice as regards the charge of murder. Even however, assuming, without allowing, that it was open

to the learned Judge to make such a reservation while passing what was on the face of it a final order, and that he did, in fact, make such a

reservation, I cannot find that that in any way justifies his order of 9th August, 1932, against the petitioners. An order u/s 437 has to be passed on

an examination of the record of any case; and so any order passed by the learned Judge, in pursuance of his notice to the petitioners to show

cause, could only be with reference to the record as it stood at the time when he took it up for consideration. The evidence of Ankamma, recorded

u/s 219, was a later addition by way of supplement to that record and by no means a part of it. I understand the learned Public Prosecutor to

concede, at least, that there would have been no committal of the petitioners for murder without the evidence of Ankamma, and that such is the

case is, indeed, plain from what the learned Judge has stated in his earlier revisional order. He doubted very seriously whether certain statements

made by Ankamma as an accused party could be used in evidence against his fellow accused, and found that the evidence of P.Ws. 10, 13 and

14, the only other witnesses against the petitioners, justified a charge against them only u/s 201, Indian Penal Code. It is evident, then, from his

order now under review that it was because of the additional evidence of Ankamma that he directed that the petitioners should be charged with

murder. That order, then, was not based on the record as it stood before him either when he initiated proceedings u/s 435, Criminal Procedure

Code, or at the time of his passing the order itself u/s 437, and it is therefore unsustainable. The learned Judge has given, as another reason for

holding that his order of 26th July, 1932, against the petitioners was not final, that he wound up the order thus:

I hope that eventually further investigation will disclose who the offenders beside the accused 2 are in respect of the charge of murder.

But the taking from Ankamma on oath of a statement in consonance with what he had previously stated, without being-sworn to it, as an

accused, can hardly be regarded as a further investigation, while anything that came out in a further investigation could not be part of the record as

it then stood before the Sessions Judge. Investigation, too, I may note, normally means investigation by the police. My conclusion, then, is that the

order of the learned Judge now under review cannot be upheld, as far as it is considered as having been passed u/s 437, Criminal Procedure

Code.

I have next to consider whether the framing of the additional charge of murder can be justified under the terms of Section 226, Criminal

Procedure Code. By that section, when any person is committed for trial without a charge, or with an imperfect or erroneous charge, the Court

may frame a charge, or add to or otherwise alter the charge, as maybe, having regard to the rules contained in the Code as to the form of charges.

The learned Judge has referred to this section also and has observed that, once the Sessions Court has seisin by virtue of the committal, it can

frame any charge that arises on the evidence adduced in the Committing Magistrate''s Court. Now, in the present case, the petitioners have

certainly not been committed for trial without a charge, neither can it be said, with reference to the evidence, to which I have already alluded, that

was available at the time of the committal, that they were committed with an imperfect or erroneous charge. The absence of any such defect is

clearer here than in Queen-Empress v. Kharga ILR (1886) All. 665, which has been brought to my notice. Reference has also to be made to

Rama Varma Raja v. The Queen ILR (1881) 3 Mad. 351.

In that decision it is pointed out that a Court of Session has power, when the accused has been committed without a charge at all, or upon a

charge which the Court, upon a reference to the proceedings before the Committing Magistrate, considers improper, to draw up a charge for any

offence which it considers proved by the evidence taken before the Committing Magistrate. A charge which was added by the Sessions Court and

which could not be supported by the evidence taken by the Magistrate was found to have been framed ultra vires. It is true that in the same case it

was found that there was no evidence taken by the Magistrate which would have supported the charge that was framed, whereas here, after the

examination of Ankamma u/s 219, there is evidence, taken by the Magistrate, on which the charge of murder might be supported. But in the

circumstances of that case the evidence taken by the Magistrate could only have been the evidence taken up to the time of committal, as the

additional witness on the strength of whose evidence the conviction on the added charge could alone be sustained, was not at all examined by the

Magistrate, but only at the Sessions. The decision does not deal with Section 219, because, in the circumstances, it had no occasion to do so, but

so far as it goes it does not, as I read it, encourage the idea that Section 226 can be applied with reference to additional evidence taken u/s 219. I

may note that the additional charge in that case was framed before the additional witness was examined and so it was added, or purported to be

added, u/s 226. Section 227, which has to be read with Section 237, can only apply after some evidence has been taken at the trial in the Sessions

Court. I have not now to consider the applicability of that section as the stage for applying it, if it can be applied at all, has not been reached. There

appears to be no decision as to the effect upon Section 226 of additional evidence recorded u/s 219; but, without any authority, it seems clear

enough that, as contended by Mr. Jayarama Aiyar, its effect upon that section must be nil.

Section 226 has to do with a charge that is imperfect or erroneous when any person is committed for trial, and this, I take it, can only mean

that, for it to apply, the charge must be imperfect or erroneous at the time of commitment. Section 219 provides for the taking of supplementary

evidence after commitment but before the trial, and there is no provision that the charges can be altered or a fresh committal order made by the

Magistrate of his own motion, after the taking of such evidence. And so, though the additional evidence may be, and in this case has been,

recorded by the Committing Magistrate, it forms no part of the record upon which the accused has been, or could have been, committed for trial.

Though it has no bearing upon the effect of Section 219, I may here refer, for the purpose of showing the general principle, to Birendra Lal Bhaduri

v. Emperor ILR (1904) 32 Cal. 22, in which it is pointed out that ""the Sessions Court is not a Court of original jurisdiction and, though vested with

large powers for amending and adding to charges, can only do so with reference to the immediate subject of the prosecution and committal and not

with regard to matter not covered by the indictment"".

This statement of principle has been quoted with approval in Muthu Goundan v. Emperor 1920 M.W.N. 149. I must hold that the learned

Sessions Judge was not authorised u/s 226 in framing the additional charge of murder against the petitioners, in that the charge against them at the

time of their commitment was neither imperfect nor erroneous. As I have remarked above, the question of whether the additional charge of murder

can be framed, later on, on the strength of Section 227, is not a matter with which I have now to deal. I do not, therefore, discuss some rulings

bearing on that section which have been quoted in the course of the argument on the petition.

Another point that has been taken for the petitioners is that the Committing Magistrate was not warranted in law in recording the evidence of

Ankamma u/s 219, and that the Sessions Judge should not have ordered him to take it. I do not, however, find that the learned Judge ordered the

Magistrate to record this evidence. What he did was to allow time to the prosecution to examine Ankamma before the Committing Magistrate. I

must take it that the Magistrate was asked to record the evidence of Ankamma and that he recorded it because he thought fit to do so. This would

be in accordance with Section 219 and as I see no reason to think that the provisions of that section were not complied with, the petitioners fail on

the point. As, however, they have succeeded on the other points, I quash the charge against them u/s 302, leaving open the matter of whether that

charge can be added later on u/s 227.

Cr.M.P. No. 783 of 1932 is an application for the transfer of the case against the counter-petitioners to the file of some other Sessions Court.

The learned Sessions Judge, in his revisional order of 26th July, 1932, has said of Ankamma that his statement appeared to be intrinsically true in

broad outlines and that, therefore, he need not be tried for the offence of murder. He has also taken him as a witness and suspended sine die even

the case against him u/s 201. I do not suppose for a moment that the learned Judge is prepared blindly to accept anything that Ankamma may say,

especially when tested by cross-examination, but I do think that what he has said and the line which he has taken are sufficient to raise a

reasonable apprehension in the minds of the petitioners, that he is inclined in advance to take a view of the case which is to their prejudice. In such

circumstances I think that a transfer of the case is advisable. I transfer it to the file of the Sessions Judge, Nellore.

In conclusion I would observe that Rama Varma Raja v. The Queen (1881) ILR 3 Mad. 351 suggests a procedure which might have been

adopted in this case. It might, perhaps, be allowed even now.