Santi Jiban Bose vs Braja Nath Munshi

Debabrata Mookherjee J.

The question that arises for consideration in this Rule relates to the procedure that the Magistrate is required to follow when in the midst of trial of a warrant case he decides to commit the accused to the Court of Session.

The Petitioner and two others were being prosecuted before a learned Magistrate of Raiganj upon allegations which prima facie made out charges of offences under Sections 477 and 420 of the Indian Penal Code. The proceedings originated in a complaint and they were transferred to the Magistrate who after several intermediate dates of hearing examined on December 13, 1954, three witnesses for the prosecution. Thereafter three other witnesses were examined and the learned Magistrate fixed January 17, 1955, as the date for hearing arguments as respects the charges to be adopted in the case. Arguments were in fact addressed to the Magistrate on January 19, 1955, who adjourned the case for orders till January 24. On this last mentioned date the Magistrate made up his mind that the offences which the Petitioner and his co-accused appeared to have committed were offences triable by the Court of Session and in that view he decided to commit the Petitioners and his co-accused to the Court of Session. As soon as this decision was reached and communicated to the accused persons, the Petitioner prayed to the learned Magistrate for opportunity to cross-examine the prosecution witnesses. The Magistrate considered the prayer but ultimately refused it in the view that he had no power to allow cross-examination at the stage reached in the proceedings; in other words, the view which the learned Magistrate took was that after having once made up his mind to commit the Petitioner and the co-accused to the Court of Session there was no provision in the law under which he could permit cross-examination of the prosecution witnesses. The prayer for cross-examination was therefore refused. Thereafter the Petitioner applied to this Court and obtained the present Rule.

It seems that the learned Magistrate was not apprised of the provisions of Section 347 of the Code of Criminal Procedure. That section is in these words:

Section 347. (1) If, in any inquiry before a Magistrate, or in any trial before a Magistrate before signing judgment/it appears to him at any stage of the proceeding that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained.

(2) If such Magistrate is not empowered to commit for trial, he shall proceed u/s 346.

The section which I have just read contemplates a case of the kind with which the Magistrate was concerned. There can be no doubt that the case was being proceeded with on the footing that it was triable under the warrant case procedure. After the examination of several witnesses and the hearing of arguments addressed to him as regards the charges to be framed, the learned Magistrate decided that instead of trying the case himself, he should commit the Petitioner and his co-accused for trial to the Court of Session. The section set out above clearly envisages a case of this kind where in the midst of a trial the Magistrate sees reason to discontinue it and to commit the accused to the Court of Session or the High Court, as the case may be. In the instant case the learned Magistrate after having heard the evidence felt persuaded that the case was one which ought to be tried by the Court of Session and decided to commit. It was quite open to the learned Magistrate to do so; but Section 347 which provides that in a case of this kind the Magistrate is free to commit the accused for trial also enjoins that the commitment has to be made "under the provisions hereinbefore contained". These last words, if they mean anything, clearly mean that after a decision is reached to commit, the Magistrate is required to follow the procedure prescribed under Chapter XVIII of the Code. The language used in Section 347 is perfectly plain. The Magistrate is directed to commit the accused under the provisions "herein-"before contained". There cannot be the slightest doubt that the provisions contained in Chap. XVIII are provisions contained in the Code and which come before Section 347 which appears in Chapter XXIV relating to general provisions as to enquiries and trials. That being the position there can be no doubt that the Magistrate was required under the law to proceed afresh under the provisions contained in Chap. XVIII of the Code.

There has been some argument at the bar that the Magistrate having already heard some evidence it was not necessary for him to go through the provisions contained in Chapter XVIII anew. The effect of this argument is that the Magistrate might very well treat the evidence already on the record as good evidence for the purpose of an enquiry preliminary to commitment. It is not easy to agree to this proposition. There may be danger attendant on such procedure since it is quite conceivable that in a case which was being dealt with as a warrant case under Chapter XXI, the prosecution might have postponed examination of relevant witnesses until after the cross-examination of witnesses for the prosecution. Such witnesses are usually described as ''remaining ''witnesses'' who are offered for examination u/s 256 of the Code of Criminal Procedure. However much the practice of putting forward material witnesses at a late stage of the proceedings may be deprecated, particularly when those witnesses are called to depose to essential facts of the case, nevertheless Section 256 of the Code permits the prosecution to call such evidence at a rather late stage of the proceedings. That being so, it cannot be said that when a Magistrate who was trying a case under the warrant case procedure feels in the midst of it that he should commit the accused for trial he can vary well treat the evidence recorded by him under Chapter XXI as good evidence under Chapter XVIII. To say the least the procedure under Chapter XVIII is basically different from the procedure laid down for the trial of a warrant case. Under Chapter XVIII the prosecution is required to place all its cards and produce all its evidence; the accused has the right and liberty to cross-examine the witnesses thus produced; the Magistrate is given the discretion to discharge the accused u/s 209 if in his view there is no ground for committing the accused for trial after hearing the evidence in chief as also the evidence in cross-examination if there be any; thereafter the accused is given the right to call witnesses in defence and such of the witnesses as the Magistrate thinks should be examined may by their evidence succeed in influencing the decision of the Magistrate u/s 213 of the Code with the result that although the Magistrate had already framed a charge he would still be free to cancel it under the provisions of that section. This is certainly a procedure very much different from the one prescribed for the trial of warrant cases. I, therefore, cannot agree that it in the midst of a trial which is being held under Chapter XXI, the Magistrate decides to commit the accused, the evidence that has already been before him, will be good and sufficient evidence for the purpose of commitment. That will, I think, involve an element of injustice and unfairness to the accused persons, apart from the question that it will entail a departure from the procedure prescribed by the legislature under Chapter XVIII of the Code. I think, therefore, that when a Magistrate decides in the course of a trial in which the warrant case procedure is being followed that the case is such that the accused ought to be committed to the Court of Session, the duty of the Magistrate is to hear the evidence once again under the provisions of Chapter XVIII and not allow the evidence already, on the record to do duty for that which is receivable in accordance with the procedure prescribed under Chapter XVIII.

I feel fortified in the view I take of the matter by a decision of this Court in the case of G.V. Raman v. Emperor ILR (1929) Cal. 44 (54); the relevant passage is at p. 54. The observation is as follows:

It is possible, and it generally so happens, that the Magistrate starts a case before him with a view to try it himself; but in the midst of the trial, when certain facts have been disclosed, he makes up his mind to commit the accused to the Sessions. When the trial was commenced before him, he treated it as one of a warrant case and the accused exercised the right to reserve cross-examination after charge. If, in the midst of the trial or immediately after finishing the evidence for the prosecution, the Magistrate decides to commit the accused to the Sessions, it does not seem just to the accused that he should, at that stage, because the Magistrate has come to a certain decision, lose the right which he had before such decision. In such a case, Section 347 should not be held as compelling the Magistrate to refuse to allow the accused to cross-examine the witnesses and to commit at once the case to the Sessions.

That was a Bench decision which I respectfully follow and I think the relevant provisions of the law to which I have referred are such as would repeal a peremptory committal of the accused to the Court of Session upon the evidence ready-made under Chapter XXI of the Code of Criminal Procedure.

The question was also considered by a Full Bench of the Allahabad High Court in the case of Emperor v. Asghar and Ors. ILR (1935) All. 671. The learned Judges held that it is only fair to the accused that the whole of the prosecution evidence should be led in the Magistrate''s Court as directed by Section 208, and unless that is done an accused will be hardly in a position to give a complete list of his witnesses, which he is required to do by Section 211 of the Code. It could not have been the intention of the legislature in enacting Section 347 to give power to the Magistrate to override this provision of the procedure, obviously intended for the benefit of the accused contained in Chapter XVIII of the Code.

In the case before me some of the witnesses were asked just one or two questions in cross-examination before charge; the learned Counsel appearing on behalf of the State has argued that the accused had in fact opportunity to cross-examine some of these witnesses. But that is not enough; accused persons have no right to cross-examine witnesses at that stage at a trial held under Chapter XXI of the Code. Cross-examination before charge is more or less a matter of sufferance. Accused persons have the right to cross-examine only after charges have been framed; and I shall be indulging in speculation if I were to think that the accused persons have been given adequate opportunity to cross-examine in the instant case; it is quite possible that the Magistrate at that stage did not think it right to extend the indulgence to cross-examine the witnesses in full before the charge was framed. I, therefore, cannot agree that the mere fact that one or two questions were put to some of the witnesses by way of cross-examination is a sufficient circumstance justifying deprivation of a very valuable right which the law gives to the accused under Chapter XVIII of the Code of Criminal Procedure. In proceedings preliminary to commitment the accused have the right to cross-examine witnesses whereas in trials held under Chapter XXI they have no such right before charge although as a matter of practice cross-examination is sometimes allowed before charges are framed.

The result, therefore, is that this Rule is made absolute. The order committing the Petitioner and his co-accused to the Court of Session is set aside and the Magistrate is directed to proceed in accordance with law by following the provisions of Chapter XVIII of the Code of Criminal Procedure.