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Seriveti Kotiswamy and ors. Vs. State of Andhra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ152
AppellantSeriveti Kotiswamy and ors.
RespondentState of Andhra
Excerpt:
.....officer, after investigation, has come to the conclusion that there are sufficient grounds for the trial of the accused. the condition that there must be a nexus between the basis of classification and the object of the act, is also satisfied because the object framed by the legislature, is that the accused should be tried for serious offences such as those triable by a court of session, only when a responsible officer in the discharge of his public functions has found that there are sufficient materials and that the trial would not be merely a harassment to the accused. it is well settled that although a committing magistrate has a duty of weighing the evidence he does so merely for the purpose of deciding whether the evidence is such as a judge or jury could reasonably be asked to make..........by an additional district magistrate in the exercise of his powers of revision under section 437, criminal procedure code, all the orders of commitment were made by the magistrates under sub-section 10 of section 207a, criminal procedure code.in all the revision petitions a common point of law is raised that section 207-a, criminal procedure code which was newly inserted in the code by the amendment act xxvi of 1955, is void as it is inconsistent with article 14 of the constitution. the contention is that the two kinds of procedure prescribed by section 207 for commitals, one under section 207-a for such inquiries instituted on police reports and the other under sections 208 - 213 for such inquiries in all other cases, discriminate between like accused persons in like circumstances and.....
Judgment:
ORDER

Krishna Rao, J.

1. These revision petitions have been filed under Sections 435 and 439 of Criminal Procedure Code by the different accused in several preliminary inquiry cases, questioning the orders committing them for trial before Courts of Session. Except in Criminal Revision Case No 349 of 1956 in which the commitment was ordered by an Additional District Magistrate in the exercise of his powers of revision under Section 437, Criminal Procedure Code, all the orders of commitment were made by the Magistrates under Sub-section 10 of Section 207A, Criminal Procedure Code.

In all the revision petitions a common point of law is raised that Section 207-A, Criminal Procedure Code which was newly inserted in the code by the amendment Act XXVI of 1955, is void as it is inconsistent with Article 14 of the Constitution. The contention is that the two kinds of procedure prescribed by Section 207 for commitals, one under Section 207-A for such inquiries instituted on police reports and the other under Sections 208 - 213 for such inquiries in all other cases, discriminate between like accused persons in like circumstances and that the more drastic procedure prescribed by Section 207A is violative of equality before the law and of equal protection of law guaranteed by Article 14 of the Constitution.

2. There can be no doubt that, as between the two kinds of procedure for commitment, the procedure specified in Section 207-A is more prejudicial to the accused in the sense that it tends to deny to him chances of a discharge, without being placed for trial before a Court of Session. The entire scope of the inquiry under Section 207-A is different from that under Sections 208 - 213. under Section 207-A, the Magistrate has to form an opinion as to whether there are no grounds for committing the accused person for trial or whether he should be committed for trial

Under Sections 209, 210 and 213 the Magistrate has to satisfy himself as to whether or not there are sufficient grounds for committing the accused person for trial. Not only is there a difference in the object of the inquiry, but also there is a difference in the materials upon which the Magistrate has to form his conclusions. Under Sub-sections 6 and 7 of Section 207-A, the Magistrate has to take into consideration not only the evidence adduced before him but also the documents referred to in Section 173, that is to say, the entire evidence which the prosecution proposes to let in at the trial, whether or not it is adduced before him.

On the other hand under Sections 209, 210 and 213, the Magistrate has to come to a decision on the evidence which has been adduced before him. under Section 207-A, there is no obligation on the prosecution to let in any evidence at all before the Magistrate. Sub-section 4 requires the Magistrate only 'to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged.'1

This is consistent with the position under Sub-sections 6 and 7 that the function of the Magistrate at the inquiry is to consider the effect of the evidence which the prosecution is likely to adduce at the trial and not to confine himself to a consideration of the evidence which the prosecution let in before him. Unlike under Section 208, the accused has no right under Section 207-A to adduce evidence in defence. Nor has he a second opportunity to adduce evidence on his side, as under Section 213, for the purpose of avoiding his being placed on trial.

If the prosecution does not choose to produce any of its witnesses and if the accused wants to show that the evidence likely to be adduced at the trial is unworthy of credit, he can only invoke the powers of the Magistrate under the second part of Section 207-A (4) to take the evidence of the prosecution witnesses ''in the interests of justice'. Even if the accused is in possession of evidence to disprove the prosecution case against him, such as an unimpeachable alibi, Section 207-A does not provide for his letting in that evidence and he can only have recourse to the Magistrate's discretionary powers under Section 540, Criminal Procedure Code.

The clear object of the Legislature in enacting Section 207-A is that in cases which have to be tried by a Court of Session and which have been instituted on police reports, the accused should be placed on trial merely if the Magistrate concurs with the police officer that the evidence, which the prosecution proposes to adduce at the trial, is likely to make out the offence. But in all other cases' which have to be tried by a Court of Session, the Magistrate has to take evidence and judicially determine whether the evidence is sufficient to place the accused on trial.

3. The question is whether this classification of cases triable by a Court of Sessions offends Article 14 of the Constitution. The relevant nature of the inhibition under Article 14 cannot be better expressed than in the words of his Lordship Das, J. (as he then was) in Budhan Chowdhry v. State of Bihar : 1955CriLJ374 . The learned Judge said.

It is now well established that, while Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions-must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The classification may be founded on different bases, namely, geographical, or according-to objects or occupations or the like. What is-necessary is that there must be a nexus between: the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.

Cases instituted on police reports are those which have been investigated by the police under chapter XIV of the Code and in which the investigating officer has collected the evidence and come to the conclusion that there is sufficient evidence to justify the accused being placed on trial. When a Police officer in the discharge of his public functions has thus found that there is a prima facie case against the accused, the situation is different from cases which are instituted on private complaints and in which the evidence available has not been subjected to any scrutiny by a disinterested person.

As observed by Chagla C.J. in Arunachalam Swami v. State of Bombay, : AIR1956Bom695 , there is a possibility of private complaints being frivolous or actuated by private vendetta. Hence there is nothing inherently wrong if the Legislature says that an accused should not be placed on trial in cases where the sufficiency of the evidence has not been scrutinised by a police officer, unless the evidence is ascertained and scrutinised by a Magistrate. There are other provisions of the Code which treat private complaints with similar suspicion.

Under Sections 200 - 203 of the Code, in the case of private complaints the Magistrate has to examine the complainant and any witnesses present on oath and may dismiss the complaint without, issuing process to the accused if, in his judgment, there is no ground for proceeding. The condition of intelligible differentia is satisfied in the classification of cases into those instituted on police reports and those instituted otherwise, because in the former category of cases a responsible police officer, after investigation, has come to the conclusion that there are sufficient grounds for the trial of the accused. The condition that there must be a nexus between the basis of classification and the object of the Act, is also satisfied because the object framed by the Legislature, is that the accused should be tried for serious offences such as those triable by a Court of Session, only when a responsible officer in the discharge of his public functions has found that there are sufficient materials and that the trial would not be merely a harassment to the accused. It has to be noticed that there is no differentiation between the two classes of cases in title procedure at the trial itself. It is not suggested that there is a fundamental right inhering in any citizen to claim that he shall not be placed on trial for an offence of which he is accused, unless conditions precedent such as set standards of evidence are fulfilled. It, therefore, appears to me that the procedure prescribed by Section 207-A, Criminal Procedure Code is not based on unreasonable classification and does not offend Article 14 of the Constitution.

4. Sri P.H. Ramachandra Rao, the learned Counsel for some of the petitioners has relied on the decision in State of West Bengal v. Anwar Ali : 1952CriLJ510 which declared Section 5 (1) of the West Bengal Special Courts Act X of 1950 to be ultra vires the Constitution toy reason of its being in conflict with Article 14 of the Constitution. Speedier trial of offences which was sought to be achieved by the provisions of the impugned section was held by the Supreme Court to be too vague, uncertain and illusive a criterion to form the basis of a valid and reasonable classification.

The learned Counsel contends that the motive for enacting Section 207-A, Criminal Procedure Code is also speedier commitment and trial. This may be so, but is not the basis of the classification. The different treatment of] cases instituted on police reports is based on a reasonable ground, viz., that the prosecution evidence intended to be adduced in them has been already considered sufficient, by a responsible officer. The learned Counsel has also cited the decisions in Suraj Mall Mohta and Co. v. Visvanatha Sastri : [1954]26ITR1(SC) and Meenakshee Mills Ltd. v. Viswanatha Sastri (S) : [1954]26ITR713(SC) .

In the case first cited, Section 5 (4) of the Taxation on Income (Investigation Commission) Act, XXX of 1947, was held to deal with the same persons as those who fell within the ambit of Section 34 of the Indian Income-Tax Act, that dealing with such persons under the more drastic provision of Section 5 (4) of Act XXX of 1947 was discriminatory and that Section 5 (4) was therefore hit by Article 14 of the Constitution. In the case second cited, the same view was taken of Section 5 (1) of Act XXX of 1947 after the introduction of the new Sub-section 1-A in Section 34 of the Income-Tax Act. These decisions have no application, because the classification under Section 207, Criminal P.C. is not with reference to persons but with reference to cases which have different characteristics.

5. Sri T.V. Sarma, the learned Counsel for some of the petitioners has urged that the effect of Section 207, Criminal Procedure Code is to give special treatment in favour of complaints sent by Police officers and pointed out that complaints made even by Courts under the provisions of Section 476, Criminal Procedure Code are not given the same favoured treatment But the differentiation under Section 207 is not by reason of the mere fact that the complaint is signed by a Police Officer.

It is based on the fact that the police report is made after investigation and collection; of evidence. Courts acting under Section 476, Criminal Procedure Code are themselves empowered to complete the enquiry and commit the accused under Section 478 for trial. It is not as if, where they consider the evidence sufficient for commitment, a further preliminary inquiry by a Magistrate is considered necessary.

6. The learned Counsel have also pointed out that commitment for trial is a serious matter, which puts the liberty of a subject in peril and jeopardy. No doubt under Sub-section 16 of Section 2007-A as under Section 220, the Magistrate has to commit the accused to custody after commitment. But this is only subject to the provisions of the Code regarding taking of bail, which means that the position of the accused is no worse than when the accusation was originally levelled against him. I see no substance in the contention that merely because the Magistrate is authorised to remand the accused to custody after commitment, the legislature has to prescribe the same procedure in all cases involving commitment.

7. Another contention is that Section 207-A authorises the Magistrate to consider and use for the purpose of commitment the statements of witnesses made to police officers in the course of their investigation and this offends the principle of Section 162(1), Criminal Procedure Code. But as pointed out by Chagla, C.J. in 58 Bom LH 628 : (S) A.I.R. 1956 Bom 695 (B), the words 'save as hereinafter provided' to Section 162 (1) operate to save Section 207-A, Criminal Procedure Code.

No doubt when the Code was enacted in 1898, it proceeded on the footing that police officers were over-zealous and that statements recorded by them should not be used to advance the prosecution. But surely the Legislature can take note of the changed conditions after the lapse of more than half a century. As stated in 1955 S.C.J. 163 : (S) A.I.R. 1955 SC 191 (A), the Legislature understands and correctly appreciates the needs of its own people. It is not permissible for Courts to say that the Legislature should for ever treat the statements recorded by police officers with suspicion.

8. In Criminal Revision Case No. 349 of 1956 an additional contention on the merits is put forward that the Additional District Magistrate ought not to have revised the Sub Magistrate's order discharging the first accused. The Sub Magistrate rejected the evidence of all the three witnesses, P.Ws. 2, 3 and 9, who implicated the 1st accused. P.Ws. 2 and 9 were disbelieved on the ground that they falsely implicated the 3rd accused in the case, during investigation. P.W. 3 was disbelieved on the ground that she retracted from her evidence against the 1st accused in cross-examination.

The Additional District Magistrate set aside the Sub Magistrate's order of discharge in the view that the credibility of P.Ws. 2, 3 and 9 was properly one for decision by the trial Court and not by the committing Magistrate. It is well settled that although a committing Magistrate has a duty of weighing the evidence he does so merely for the purpose of deciding whether the evidence is such as a Judge or Jury could reasonably be asked to make the basis of conviction. Venkataswamy v. The King 1950 Mad W.N. 139 (F).

His function is further restricted under the new Section 207-A, Criminal Procedure Code because he has to discharge the accused only if no grounds are disclosed for committing the accused person for trial. The fact that he is not prepared to accept the evidence of three witnesses on the ground of their varying the statements would not warrant such a conclusion, because the trial Court may take the view that the variations do not affect their credibility. Therefore the Additional District Magistrate was clearly justified in ordering the committal of the 1st accused.

9. These Criminal Revision Petitions are dismissed.


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