Nazir and others vs State

S.B. Sen, J.—A challan was filed by Police Ujjain under Sections 307, 147 and 148, Indian Penal Code against the applicants, who are

seven in number. The committal proceedings were stated u/s 207-A of the Criminal Procedure Code. The Magistrate after examining prosecution

witnesses found that the evidence and the documents did not disclose any ground for commitment; but he was of the view that he should try the

case himself on charges under Sections 324, 325, 147, 148 and 149, Indian Penal Code and framed the charges accordingly against them.

All the applicants pleaded not. guilty to the charges and the Magistrate fixed the case for 30-10-1963 for cross-examination of the prosecution

witnesses already examined on behalf of the prosecution. The witnesses, however, could not be cross-examined for various reasons.

On 16-6-1964 an application was submitted by the applicants that the Magistrate decided to try the case himself and therefore, the evidence

recorded by him u/s 207-A, Code of Criminal Procedure could not be treated as evidence against them. They, therefore, prayed that the witnesses

should be examined afresh before they could cross-examine them. The Magistrate rejected this prayer. Applicants went up in revision but that was

also rejected. They have now come up in revision before this Court.

The only point urged before me is that after the Magistrate decided to try the case himself, he should have followed the procedure laid down u/s

251-A and as such the witnesses should be examined afresh.

The procedure adopted by the Magistrate is now undoubtedly a procedure that is enjoyed u/s 207-A, Sub-section (6). It says (hat when the

Magistrate is of the opinion that the accused cannot be committed and that he is not in a position to discharge him; and if it appears to him that the

accused should be-tried by himself or some other Magistrate, he should proceed accordingly.

It is at this stage the question arises whether he has followed the procedure laid down u/s 251-A or not. There are three courses in the

commitment proceedings: (1) when the Magistrate finds that there is ground for commitment, he shall commit; (2) when he finds that there is no

ground to proceed against the accused in any other manner, he should discharge; (3) and that when he finds that there are grounds to proceed

against the accused he has to proceed himself or ask any other Magistrate competent for the purpose to proceed. The procedure u/s 207-A ends

under category (3) when the Magistrate chooses the step to be taken under Sub-section (6). After that stage the procedure laid down u/s 251-A

comes in.

Section 207-A does not lay down any procedure as to how the Magistrate should proceed with the case when he feels that he should proceed

against the accused himself. There are different procedures laid down in the Code for different cases. Regarding trials before the Magistrates either

summons or warrant procedure has to be followed. Reargding trial of warrant cases two distinct procedures again have been laid down one is on

police report and the other when it is filed by a complainant. The instant case is instituted undoubtedly on a police report. If that is so, I do not

understand why the procedure mentioned u/s 251-A of the Code of Criminal Procedure should not be followed.

There is a wide difference between the procedure laid down u/s 207-A and S. 251-A of the Criminal P.C. In a commitment proceeding the

evidence of those witnesses on which a commitment order is to be based is not sufficient evidence in a Sessions trial. Before the Sessions Court, if

the commitment is made the witnesses have to be examined afresh. There fore, the accused may not be very particular in cross-examining the

witnesses at the stage before the framing of the charge. We are not considering prejudice because the trial has not begun. Question of prejudice

can only come in when something irregular or illegal has already been done. We are considering which should be the normal procedure. After the

Magistrate came to the conclusion that there was no case for commitment and that he could try the case himself he framed the charge. The trial

commences subsequent to the framing of the charge and if the trial commences after the framing of the charge, strictly speaking there is no legal

evidence of the prosecution after framing of the charge. u/s 251-A, it is after the charge is framed that the oral evidence comes in. Whatever is

recorded before the framing of the charge cannot be legal evidence after the framing of the charge because Section 251-A does not contemplate

any such evidence. If the evidence recorded in commitment proceeding is not sufficient evidence before the Sessions Court when the accused is

tried after the commitment, I do not understand why the evidence recorded before the commitment should be taken as evidence when the trial is to

be held by the Magistrate himself. The principle behind recording fresh evidence before the Sessions Court after commitment is that the evidence

recorded by the Magistrate is only the evidence during the inquiry. The same principle must also apply in view of clear provision in Section 251-A

(7) of the Criminal Procedure Code.

It may some times happen that when the commitment proceeding is for more than one offences, the accused may not be very particular in

observing what the witnesses are saying in respect of those offences as he knows that the witnesses are again to be examined in a Sessions trial.

Much depends on the offences on which the accused is charged.

He may or he may not be prejudiced subsequently. But that is not the question we are discussing. I may repeat that we are not talking of any

irregularity in the procedure as contemplated u/s 537, Criminal Procedure Code.

In Jhagru Tewari v. State of West Bengal and Anr. AIR 1999 Cal 176, a Division Bench of the Calculta High Court have taken the view as

under:

........where a charge is being framed by a Magistrate because he is satisfied in any enquiry u/s 207-A that there is no ground for committing the

accused for trial, but it appears that he should be tried by himself or some other Magistrate and the Magistrate has not only examined the

documents referred to in Sub-section (2) of Section 251-A but has in addition taken evidence referred to in Sub-section (4) of Section 207-A, it is

absurd to suggest that he cannot frame a charge against the recused after deciding that the trial shall be before him merely because he has taken

into consideration the evidence referred to in Sub-section (4) of Section 207-A. It is true that Section 251-A in its third Sub-section does not

permit the Magistrate to examine the witnesses before framing the charge but where the decision to try is made u/s 207-A (6) the legislature by

authorising the Magistrate ''to proceed accordingly'' has authorised him to frame a charge for a suitable offence in such a case. The strict

observance of Sub-section (3) in such a case would be impossible. It cannot be thought for a moment that that would make the trial irregular.

Clearly, therefore, this departure from the strict observance of Sub-section (3) of Section 251-A of the Code of Criminal Procedure is permitted. I

can see no reason, therefore, why the further departure namely, the non-examination by the prosecution again of the witnesses who have been

already examined in the enquiry before the same Magistrate should be considered to vitiate the trial. It is well to remember the principle that the

Court should avoid putting on the statute a construction which is inconvenient or unjust-unless it is clear that this is the intention of the legislature. In

my judgment, it cannot have been the intention of the legistature that in such a case where the Magistrate has decided to proceed with the trial

himself under Sub-section (6) Section 207-A, the witness already examined should again be examined by the prosecution.

It is clear that Their Lordships proceeded on the basis that it is impossible to follow strictly the procedure laid down u/s 251-A in a case where

the Magistrate proceeds accordingly as contempled u/s 207- A(6). With due respect, I do not think that it is an impossibility. Moreover, Their

Lordships were discussing the likely prejudice. The question was whether for the procedure that was followed not being strictly in accordance with

Section 251-A, the accused could challenge the conviction. The point that was agitating in Their Lordships'' mind if I may say so, is the effect of

such a trial and not in what way the Court should have proceeded after the committing Magistrate decided to proceed with the case himself.

Section 207-A, Sub-section (7) is a step which has to be taken after the stage under Sub-section (6) is over. Now it is at this stage that we

may call it the turning point in the procedure. Under Sub-section (7) the matter may go to the Sessions and all the witnesses examined by the

Magistrate will again be examined by the Court of Session. Now if the Magistrate under Sub-section (6) decides to proceed himself against the

accused then the trial is u/s 251-A which is a trial on a police report. Therefore, the Magistrate has to frame a charge as contemplated u/s 251-A.

It may be that he has got an additional advantage of the evidence of certain witnesses-recorded on oath, but that does not mean that the step which

is subsequent to the framing of charge contemplated u/s 251-A has to be avoided.

Sub-section (3) of Section 251-A contemplates consideration of documents and examination of the accused and after hearing both the sides if

the Magistrate feels that there are grounds for framing a charge he shall frame a charge against the accused. The only difference at this stage in a

trial u/s 251-A and Section 207-A is that in addition to the documents and argument mentioned in Section 251-A, Section 207-A contemplates

consideration of certain oral evidence already recorded. After the framing of the charge u/s 251-A (3), all the procedure laid down in the section

can be followed without any difficulty. Only addition is that evidence once recorded has to be recorded again. Subsequent steps are very easy and

there is no difficulty, not to speak of impossibility.

Section 251-A (4) says that the charge shall be read over and explained to the accused. This step can easily be taken. Sub-section (5)

contemplates that if the accused pleads guilty, the Magistrate shall record the plea and may in his discretion, convict him thereon. This Sub-section

also can be complied with. The further procedure laid down u/s 251-A can also be easily followed. I need not quote the various Sub-sections.

What I mean to say is that if strict observance of Sub-section (3) of Section 251-A. is not possible, it does not mean that to the extent the

procedure can be followed should not be followed.

With due respect, I do not agree with the view expressed by the Calcutta case (supra) in the following lines:

The strict observance of Sub-section (3) in such a case would be impossible. It cannot be thought for a moment that that would make the trial

irregular......... It is well to remember the principle that the Court should avoid putting on the statute a construction which is inconvenient or unjust

unless it is clear that this is the intention of the legislature.

It is not incovenient or unjust for the witnesses to come twice and to get themselves examined twice. If after commitment the witnesses could

be examined once again before the Sessions Court, I do not understand why there should be any difficulty for examining them before the

Magistrate where the particular trial begins. Moreover, in the Calcutta case as we have already seen the position was that the trial was over and

the objection was raised after the conviction of the accused; and their Lordships were considering whether a trial was vitiated by not following the

procedure laid down u/s 251-A. In the instant case the trial is to begin and we, should see what should be the normal procedure. We are not in the

instant case considering the irregularities in the trial. As, in my view, the witnesses have to be recalled for examination-in-chief after the framing of

the charge, the order passed by the trial Magistrate as well as by the learned Sessions Judge are wrong.

The case reported in Chhadami Lal Jain and Others Vs. The State of Uttar Pradesh and Another, , cited by the opponent speaks of inquiry u/s

207, Code of Criminal Procedure and therefore, is besides the point.

The result is the revision petition is allowed, the order passed by the learned Courts below is quashed and the case is sent back to the trial

Magistrate with direction to follow the procedure laid down u/s 251-A Code of Criminal Procedure and dispose of the case according to law.