Sasdat Mian and Others vs King-Emperor

Jwala Prasad, J.—This is an application to quash the commitment made by the Magistrate to the Court of Sessions for a charge of dacoity and other offences. The application is made u/s 215 of the Code of Criminal Procedure tinder which the High Court can quash commitment solely on a point of law.

It is urged that the Magistrate contravened the statutory provisions set forth in Chap. 18 of the Code of Criminal Procedure with respect to an inquiry for the purpose of committing to the Court of Sessions, inasmuch as (1) he refused the petitioners the liberty to cross-examine the witnesses for the prosecution and (2) he refused to issue processes and examine the defence witnesses.

The case was pending for some time before the Magistrate, and on the 10th September 1926 the accused put in a petition u/s 526 of the Code of Criminal Procedure, and the case was accordingly adjourned till the 24th September, 1926. No steps, however, were taken for transfer of the case, and the enquiry commenced on the 24th September 1926. On that day five witnesses were examined in chief on behalf of the prosecution and they were discharged with an order to appear when called. After the examination in chief of the first witness for the prosecution Gauri Shankar Prasad, the Magistrate recorded the following note underneath the deposition of that witness.

The defence counsel declines to cross-examine the witness until he gets a copy of the witness''s statement recorded by the police. He puts in a petition for copy. It is now 2-35 p.m.

As regards the other four witnesses examined on that day, the note of the Magistrate is "Cross-examination declined at this stage," but at what stage it does not appear from the record. The accused put in a petition stating that the witnesses for the prosecution had made statements before the police during the investigation of the case and that the accused were entitled under the law to be supplied with copies of those statements. The Magistrate recorded the following order upon that petition:

The Public Prosecutor and defence counsel want to show some authorities to-morrow. Put up to-morrow.

This order was recorded on the 24th September. On the following day, the 25th September the Magistrate passed the following order:

Copies may be granted of the depositions of the witnesses before the police on payment of proper Court-fee.

On the 25th September, the Magistrate examined six prosecution witnesses in chief and discharged them with an order to appear when called. In the depositions of those six witnesses the Magistrate recorded the following order.

Cross examination declined at this stage.

It is not clear whether the order passed by the Magistrate on the petition bf the accused directing copies of the statements of the witnesses examined by the police to be given to the accused referred to the six witnesses examined on the 25th September. Assuming that the order referred to those witnesses also, the accused declined to cross-examine the prosecution witnesses at the stage when their examination-in-chief finished until they were granted copies of the statements recorded by the police. It is with regard to these eleven witnesses, that is, five examined on the 24th and six examined on the 25th September, that it is contended that their cross-examination was kept in abeyance until the copies of their statements before the police were obtained by the accused. Further witnesses were examined on behalf of the prosecution on the 27th, 28th, 29th and 30th September and 1st October, altogether about 39 witnesses. The note of the Magistrate underneath the examination-in-chief of those witnesses is simply "Gross examination declined."

The order of the Magistrate of the 25th September 1926, allowing copies to be granted could not possibly apply to the cross-examination of these witnesses for till]then the witnesses were not called on behalf of the prosecution and the occasion for the exercise of discretion u/s 162 of the Code of Criminal Procedure with respect to the granting of copies of the statements made by them before the police with a view to afford an opportunity to the accused to contradict the prosecution witnesses u/s 145 of the Evidence Act, had not arisen.

Sir Ali Imam who appears on behalf of the accused has abandoned his contention as to the liberty of cross-examination not being given to the accused with respect to the witnesses who ware examined after the 25th September 1926. The contention is confined only with respect to the eleven witnesses who were examined on the 24th and 25th September as is stated above. It is said that the accused could not cross-examine the witnesses with regard to the contradictory statements made by them before the police inasmuch as copies of those statements were not obtained until the 2nd October 1926.

It is further urged that by postponing consideration of the application made by the accused on the 24th September to obtain copies of the statements of the witnesses recorded by the police, the accused were led into the belief that they would be allowed their right cross-examine those witnesses when the Magistrate would finally determine the question raised by them and that by allowing their application to obtain those copies, on the 25fch September 1926, the Magistrate used his discretion vested u/s 162 of the Code of Criminal Procedure, after being satisfied that, the statements recorded before the police were contradictory to the statements of those witnesses made in Court. The proviso to Section 162 runs as follows:

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement if duly proved may be used to contradict such witness in the manner provide by Section 145 of the Indian Evidence Act 1872.

The witnesses in question were called for the prosecution and examined in Court. Their statements ware recorded by the police. The accused made a request to the Court to refer to the record of the police containing those statements. The Magistrate directed that the accused be furnished with copies thereof. These requirements of the section having been complied with the accused were at liberty to use the statement of the witnesses before the police or any part thereof for the purpose of contradicting those witnesses u/s 145 of the Indian Evidence Act. They could not do so just when the examination-in-chief of the witnesses finished for they had not till then obtained copies of the aforesaid statements, The application for copy was made on the 27th September, the 26th September being Sunday, and the requisite stamps add folios were put in on that very day and copies were obtained on the 2nd October. The order of the Magistrate of the 25th September allowed the accused an opportunity to cross examine the witnesses with respect to the statements recorded by the police but the accused were not in a position to avail of it, not on account of any fault of theirs, but on account of the time occupiel in obtaining copies of those statements. Clause (2) of Section 208 of the Code of Criminal Procedure in Ch. 18 relating to the inquiry of cases tribal by a Court of Sessions provides that

The accused shill be at liberty to cross examine the witnesses for the prosecution and in such case the prosecutor my re-examine them.

The ordinary rule, as laid down in the Evidence Act is that the witnesses will be examined in chief, cross-examined and re-examined. There is no express provision for postponing the cross-examination of witnesses till all the prosecution. witnesses are examined in chief. A special provision has been made under certain circumstances with respect to trials in warrant cases (Ch. 21), entitling the accused to postpone the cross-examination of witness as till a certain stage. No such provision has been made with respect to an inquiry into the cases triable by a Court of Sessions in Ch. 18 of the Code.

The Magistrate, however, to my mind has the discretion to allow the accused to postpone the cross-examination of witnesses in suitable circumstances. He cannot of course throw any obstacle in the exercise of the liberty by an accused to cross-examine the witnesses for the prosecution The circumstances of this casa show that although the accused were at liberty to cross-examine the witnesses for the production after the close of their examination chief they were not in a position to exercise that right because they were not able to obtain copies of the statements made by the witnesses before the police which the Magistrate in the exercise of his discretion u/s 162 of the Code thought they were entitled to. They made an application to the Magistrate on the 1st October 1926, in which they stated that they had intimated their intention to cross-examine the prosecution witnesses examined in chief as soon as they had obtained copies of the statements of those witnesses recorded by the police and that without such copies they were unable to cross-examine the witnesses. The Magistrate thereupon passed the following order:

The accused were given the opportunity of cross examining the prosecution witnesses as soon as these examination in chief was finished but the defence counsel declined to do so at that stage. The accused are not entitled to defer cross examination till the examination-in-chief of all the prosecution witnesses was completed. The witnesses have been already discharged and there will be considerable delay in the trial of the case if the witnesses are recalled at this stage.

This is an order which would cover a case coming under Clause (3) of Section 208 of the Code of Criminal Procedure under which a Magistrate may refuse to issue process to compel the attendance of any witness when he thinks it unnecessary for reasons to be recorded by him. The present case does not come under that clause. Under it both the complainant and accused are entitled to have processes issued against their witnesses and the Magistrate can refuse it on the ground to be recorded by him that he considers the issue of processes unnecessary. The application of the accused for being given an opportunity to cross examine the prosecution witnesses to my mind does not clearly come under Clause (3) of the section. The application was under Clause (2) asking the Magistrate to afford them an opportunity to exercise their liberty to cross-examine the witnesses for the prosecution. If the accused did not waive their right, which the said clause confers upon them, the Magistrate could not take it away and was bound to give them facility to exercise that liberty by producing the prosecution witnesses in the witness-box. They did not decline to cross-examine the prosecution witnesses, but they declined to do so until they were allowed copies of the statements of the witnesses recorded by the police, and the Magistrate tacitly by his note recorded under the heading of cross-examination beneath the examination of the witnesses in chief and also by his order recorded on the 25th September on the petition of the accused, dated the 24th September, only suspended the exercise of the liberty to cross-examine the prosecution witnesses until the copies were obtained.

An accused has no right to cross-examine a prosecution witness except u/s 145 of the Indian Evidence Act, with respect to statement of the witness recorded by the police, for in the present case there was nothing to prevent the accused from availing themselves of the opportunity to cross examine the prosecution witnesses on general lines or on points other than those arising out of the statements recorded by the police, just when the examination in chief of those witnesses finished.

The record shows that an opportunity for general cross examination was given to the accused by the Magistrate, but they refused to avail themselves of this opportunity, except with regard to the statements recorded by the police. The contention of the accused, therefore, only so far as it relates to the cross-examination with respect to the statements recorded by the police should prevail, and there has been a direct violation of the statutory provision contained in Clause (2) of Section 208 of the Code of Criminal Procedure. This is, therefore, a point of law which vitiates the commitment made by the Magistrate and such a commitment can be quashed u/s 215 of the Code.

The other point of law raised by the learned Counsel on behalf of, the accused is that the Magistrate erred in law in not summoning and examining the witnesses for the defence. The contention is that the application of the accused for summoning the defence witnesses was made in time, inasmuch as the case for the prosecution was not closed and no charge as framed against the accused u/s 210 of Chapter 18 of the Code of Criminal Procedure. In this way some of the authorities are sought to be distinguished.

u/s 212, Clause (2) the Magistrate has a discretion to summon any witness named in any list given to him under. Section 211 and such a list is demanded by the Magistrate after the charge is framed. The accused has no right to have his witnesses summoned and examined after the charge is framed against him u/s 210. The matter rests entirely upon the discretion of the Magistrate. Here, the application for examining the defence witnesses was made on the 1st October when the prosecution had not closed its case and no charge was framed.

The Magistrate recorded the following order:

This (petition) is filed shortly before the prosecution was going to close its case. There is prima face evidence for commitment of the accused for trial in the Court of Sessions. The case is long pending and I consider it unnecessary to examine any witness for the defence at this stage.

This order of the Magistrate is apparently under Clause (3) of Section 208 under which he is bound to issue process in order to compel the attendance of any witness unless "for reasons to be recorded, he deems it unnecessary to do so." It is undisputed that the Magistrate is bound to examine the defence witnesses if produced just after the close of the case for the prosecution under Clause (1) of Section 208 of the Code. That section says that:

the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused or as may be called for by the Magistrate.

Therefore, it is imperative upon the Magistrate to examine any witness produced on behalf of the accused. In order to assist the prosecution as well as the accused Clause (3) of the section provides that the Magistrate shall issue processes in order to compel the attendance of their witnesses. The Magistrate, however, can refuse it "for reasons to be recorded" when he considers it to be unnecessary to do so.

The Magistrate has in the present case given reasons for refusing the prayer to summon the witnesses for the defence. He has, therefore, exercised the discretion vested in him by Clause (3) of the section. He has given two reasons: (1) that there is prima facie evidence for commitment of the accused for trial in the Court of Sessions, and (2) that the summoning of the witnesses for the defence will cause inordinate delay in the trial of the case. The Magistrate justifies his reason by referring to the very long delay already caused in the disposal of the case and much on account of the laches on the part of the accused. We are not at all concerned in the present case as to whether the reasons given by him would have appealed to another person or not. We have only to see if the procedure adopted by the Magistrate has contravened any of the statutory provisions in the Code. He has recorded his reasons for rejecting the application of the accused to summon the defence witnesses.

He has also expressly held that it was unnecessary to do so at that stage. Therefore, he has complied with the provisions contained in Clause (3) of Section 208. The order of the Magistrate cannot be held to be illegal and therefore no point of law arises out of it so as to justify the quashing of the commitment by this Court u/s 215 upon that ground. It would have been quite a different thing had the witnesses for the defence, been present in Court and had they been produced by the defence for examination and the Magistrate would then refuse to do so, he would then have contravened the provisions contained in Clause. (1) of the section which expressly says that the Magistrate shall examine the witness, produced by the accused. Therefore, I overrule this contention.

The following authorities were cited at the Bar in support of the respective contentions of the parties:

Kuar Jaswant Singh and Others Vs. Emperor, , Queen-Empress v. Ahmad [1898] 20 All. 264, Emperor v. Muhammad Hadi [1903] 26 All. 177, In re Mohammad Kasim [1901] 14 M.L.T. 532, The Sessions Judge of Coimbatore v. Immudi Kumara Kangaya [1912] 36 Mad. 321, Phanindra Nath Mitra v. Emperor [1909] 36 Cal. 48, Salt v. Emperor [1909] 36 Cal. 560, Emperor v. Surath [1915] 42 Cal. 608.

There seems to be some conflict of opinion with respect to the provisions relating to the cross-examination of prosecution witnesses and the right of an accused to have the defence witnesses summoned and examined and the effect of the infringement of those provisions upon the commitment made by the Court. There has also been conflict of opinion with respect to the interpretation and effect of Section 347 of the Code of Criminal Procedure. This section has no application to the facts of the present case. I have carefully considered the authorities and the provisions in Ch. 18 of the Code of Criminal Procedure relating to an inquiry into cases triable by the Court of Sessions. It seems to me that the view taken by me on both the points fully accords with the language, intent and scope of the relevant provisions in the chapter.

The result is that the commitment is quashed, and the case is sent back to the Court below in order to allow the accused an opportunity to cross-examine the eleven witnesses for the prosecution who were examined on the 34th and 25th September 1926, with respect to the statements made by them before the police, in order to contradict those witnesses u/s 145 of the Indian Evidence Act.

Macpherson, J.

I agree to the order proposed and would make a few observations.

The only question is whether there has been an illegality which would entitle this Court to quash the commitment tinder Section 215 of the Code of Criminal Procedure. Of the two alleged illegalities it is clear that the failure of the Magistrate to issue process on the defence witnesses was in the present instance not an illegality at all. The Magistrate in his discretion deemed it unnecessary to issue process and recorded his reasons for his view. The case accordingly falls under Sub-section (3) of Section 208. In this connexion reference may be made to Emperor v. Surath [1915] 42 Cal. 608.

Again, the. Magistrate did accord the accused liberty to cross-examine the prosecution witnesses. He did so just after the examination-in-chief of these witnesses and ordinarily that is a full compliance with the law. The accused has no right to reserve cross-examination: In re Mohamed Kasim [1901] 14 M.L.T. 532. But in the present instance there is reason to hold that the provisions of Sub-section (2) of Section 208 which is mandatory were not really given effect to in the case of the eleven prosecution witnesses examined on the first two days of the inquiry, the defence being misled by the rather confused dealing of the Magistrate with their application for postponing cross-examination and with their application for copies under the proviso to Section 162(1) of the Code of Criminal Procedure, into the belief, during the first two days of the inquiry, that it was his intention to allow them to cross-examine at a later stage.

The Magistrate evidently misunderstood the provisions of the proviso to Section 162(1).

There is, however, no real obscurity in that enactment so far as the grant of copy is concerned. Two points in particular stand out, and strict adherence to them, which unfortunately is rare, will obviate much confusion. In the first place, the question of furnishing to the accused a copy of the statement of a witness recorded by the police in the course of the investigation into an offence does not at all arise until the witness is called for the prosecution at the inquiry or trial in respect of the offence and secondly, the Court is not competent to direct that the accused be furnished with a copy of such statement unless it contains something which constitutes a contradiction to a statement made by the witness in his deposition at such inquiry or trial. These two circumstances must coexist before an accused is entitled under the proviso to Section 162(1) to such a copy.

Then contradictions vary so greatly in importance that it is advisable for the Magistrate holding an inquiry under Ch. 18 to indicate when directing under the proviso that a copy of a witness''s statement to the police be furnished to the accused, whether the contradictions between that statement and the deposition of the witness are or are not so important as to render it expedient to postpone the cross-examination of the witness u/s 208(2).

If the defence is informed forthwith that the contradictions, if any, are not material, the mere grant of a copy of a statement of the witness to the police will not be any ground for failure on the part of the accused to avail himself forthwith of the liberty to cross-examine the witness then accorded to him.