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FakruddIn and ors. Vs. State Police, Nirmal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 647 of 1960 (Cr. Revn. Petn. No. 20 of 1960)
Judge
Reported inAIR1962AP236
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 252-A(2), 251-A 92, 253(3), 436 and 437
AppellantFakruddIn and ors.
RespondentState Police, Nirmal
Advocates:Gopal Rao Ekbote, ;Tej Raj Kapor and ;V. Lakshmi Devi, Advs.;Public Prosecutor
Excerpt:
criminal - revision -sections 252-a (2), 251-a (3), 253 (3), 436 and 437 of criminal procedure code, 1898 - accused discharged under section 251-a (2) - whether sessions court empowered to revise order of discharge and remand matter for further enquiry - discharge order made prior to framing charges and it has to be distinguished from acquittal - held, sessions court entitled to order further enquiry in such cases. - - pointed out that it is rather difficult to define what precisely is meant by the word 'ground less' and that it may probably meanthat 'the evidence must be such that no conviction could be rested on it' thereby implying that there was sufficient justification for the enactment of sub-section (2) of s. held the view that the order of remand for further inquiry made by.....munikanniah, j.1. this revision petition has been referred to a bench as the question whether an order of discharge purported to be under sub-section (2) of section 251-a of the code of criminal procedure could be revised by the session judge, and whether the sessions court can remand the case for 'further enquiry' or there can only be a proceeding by way of a 're-trail'.(2) the facts giving rise to the filing of the present revision petition are quite simple. thirteen persons have been charge-sheeted by the station house officer, nirmal police station, for offences under s. 382 i. p. c. they are accused of committing theft of 10 bags of beedies belonging to mupkal beedi factory at about 5-00 p.m., on 9-3-1960 after making preparation to cause hurt and wrongful restraint. those beedi bags.....
Judgment:

Munikanniah, J.

1. This Revision petition has been referred to a Bench as the question whether an order of discharge purported to be under sub-section (2) of Section 251-A of the Code of Criminal Procedure could be revised by the Session Judge, and whether the Sessions Court can remand the case for 'further enquiry' or there can only be a proceeding by way of a 're-trail'.

(2) The facts giving rise to the filing of the present revision petition are quite simple. Thirteen persons have been charge-sheeted by the Station House Officer, Nirmal Police Station, for offences under S. 382

I. P. C. They are accused of committing theft of 10 bags of beedies belonging to Mupkal beedi factory at about 5-00 p.m., on 9-3-1960 after making preparation to cause hurt and wrongful restraint. Those beedi bags were being transported in a jeep car, which was stopped when it neared a jungle and the beedies were stolen by the accused.

The Munsif Magistrate, Nirmal, discharged the accused 4 to 13. The reason given is that no material was available to show how the police got the names of these ten accused. He ordered that accused 1 to 3 should be charged only under Ss. 341 and 379 I. P. C. read with S. 34 I. P. C. and tried for those offences before himself. Accusted 1 to 3 thereupon filed Criminal Revision Petitions Nos. 24,25 and 26 of 1960 before the Sessions Judge, Adilabad. The State filed Cri. R. P. No. 20 of 1960 against the order of discharge of accused 4 to 13.

The learned Session Judge of Adilabad held the view that a discharge under sub-section (2) of S. 251-A Cr. P. C. is virtually a dismissal of the complaint under S. 203 Cr. P. C. and allowed Cr. R. P. No. 20 of 1960 holding that there were grounds for interferences. He upheld the order of the learned Munsif-Magistrate in so far as accused 1 to 3 are concerned and dismissed Cr. R. P. Nos. 24, 25 and 26 of 1960. The present revision petition is preferred by all the thirteen accused.

(3) It is not necessary for us to have to deal with the merits of the case; for the learned counsel for the petitioners contented with contending that the learned Sessions Judge had no power to interfere with the order of discharge falling under sub-section (2) of S. 251 of the Criminal P. C.

(4) The learned counsel first contented that S. 251-Aa Cr. P. C. which is inserted by Act XXVI of 1955, has considerably altered the procedure in respect of the trail of a warrant case instituted on a police report, while the said procedure in a case instituted otherwise than on a police report, is retained and urged that the consequences attaching to orders of discharge in both cases are not the same. To meet this point, we will now examine both the procedures pertaining to discharge of accused in warrant cases.

Under the unaltered procedure the Magistrate should proceed to hear the complainant (if any) and take all such evidences as many such examination (if any) of the accused as the Magistrate thinks necessary before he discharges an accused on the ground that no case against the accused has been made out which, if unrebutted, would warrant his conviction. The Magistrate is also enabled to discharge the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless (Vide S. 253 Cr. P. C.)

In a case instituted on a police report, two different stages for ordering discharge of accused are not contemplated. The Magistrate shall satisfy himself that the documents referred to in S. 173 Cr. P. C. have been furnished to the accused, and upon consideration of all the documents referred to in S. 173 and making such examination, if any, of the accused as he thinks necessary, and after giving the prosecution and the accused an opportunity of being heard, he shall discharge the accused if he considers the charge against the accused to be 'soundless' (Sec. 251-A, Crii. P. C.). In other words the preliminaries to be gone through as indicated in sub-sections (1) and (2) of S. 251-A Cr. P. C. before an order of discharge is passed are the following:

(1) Documents referred to in S. 173 Cr. P. C. and furnished to the accused should be considered.

(2) An examination, if any, such as the Magistrate thinks necessary of the accused should be made.

(3) The prosecution and the accused should be given an opportunity of being heard.

(4) If he then considers that the charge against the accused is groundless, he shall discharges the accused.

On the other hand, when the order of the discharge falls under sub-section (1) of S. 253 Cr. P. C. the learning of the complainant, if any, and the taking of all such evidence as may be procedure in support of the prosecution, i.e., when the complainant presents himself and such evidence is made available under sub-section (2) of S. 253, no such conditions are laid as the order of discharge can be made for reasons to be recorded as to why the charge or accusation is considered groundless.

It could thus be seen that though the discharge of the accused both under sub-section (2) of S.251-AA and sub-section (2) of S,253 should be for the reason that the court considers the accusation or charge to be groundless, the matters which enter into the determination of these cases are not the same. Under sub-section (2) of S.253, the discharge of the accused can be at any stage and with reference to the matter av. ailable at that stage. A further order of discharge of the remaining accused is also possible if the Magistrate acts under sub-section (1) of S. 253. But such is not the case when the case is on police report. The reason is that the investigation of the case by the police makes more material available to the Court and therefore the procedure lays down that all that matter should be taken into consideration.

Further, these differences in procedure between the two classes of warrant cases are not unintelligible. Speeding up of the trail of cases instituted on police reports has been found to be feasible as the records of investigation obtainable from the police and furnished also to the accused make it possible to examine the accused and to hear the parties even at that stage without having to take evidence, even though all the material to be taken into consideration while the Court acts under sub-section (1) of S. 253, are not wholly before the Court. Therefore, we think that the discharge of the accused under sub-section (2) of S. 251-A should be for the reason that the charge or accusation is groundless. This, it could be considered is put on a par with the discharge under sub-section (2) of S.253. From this, it is also clear that while the discharge on the ground that no case against the accused has been made out would be considered as special to a case instituted otherwise than on a police report, the discharge of the accused for the reason that the charge is considered groundless is available in both the procedures.

While therefore it could be considered that virtually there is no difference between the nature of the order the Magistrate can pass under sub-section (2) of S. 251-A Criminal Procedure Code sub-section (2) of S. 253 Cr. P. C. we are unable to see beyond the apparent difference in the language employed, any virtual distinction between these two kinds of discharge. We hold, therefore, for this reason that in each of these cases, the effect of the order of discharge of an accused is too exonerate him from the case, and cannot in any sense be considered as acquittal of the guilt after a trial.

(5) The further contention of the learned counsel has been that because of the differentiation between the language of sub-section (2) of S. 251-A and sub-section (2) of S. 253 the power given to the Court of Session or the High Court to revise the orders of discharge under S. 435 or 436 Cri P. C. differs in each case. The argument is that the power of revising an order of discharge is taken away in the case of an order of discharge made in a warrant case on a police report.

It is not disputed that the power of revision is exercisable in cases of orders passed under S. 253. Even so, we would examine decided authorities with a view to find out whether the principles stated therein would not be applicable to a case of discharge under sub-section (2) of S. 251-A, which in our view, is analogous to an order under sub-section (2) of S. 253. We consider that an examination of the decided cases is also so importance inasmuch as the learned counsel put for ward a proposition thata without examination of witnesses for the prosecution and consideration of witnesses for the prosecution and consideration of that evidence which is the basis of discharge at least under sub-section (1) of S. 253, the provision for discharge of accused contained in sub-section (2) of S. 251-A is altogether an innovation which is properly akin to an order of acquittal. We have no hesitation in repelling this contention and in no hesitation in repelling this contention and in finding, for the reasons already given, that the order of discharge in warrant cases instituted on order of discharge in warrant cases instituted on police report is not different in nature from the one passed under sub-section (2) of S. 253. In our view, the latter point can be met by pointing out how the examination of witnesses has not been insisted upon for passing of annoy order under sub-section (2) of S. 253.

(6) The earliest of the cases is reported in Chinna Narasanna v. S. P. Venkatrayadu, (1911) 1 Mad. WN 149: 12 Cri. L. J. 105. The question for consideration by ayling J. was whether a Magistrate's order discharging the accused under S. 253 Cr. P.C. without examining all the prosecution witnesses is legal. Approving an earlier decision reported in Queen v. Purasurama Naiker, ILR 4 Mad 329 it was held that sub-section (2) of S. 253 Cr. P. C. authorises such a course and that the Magistrate is competent to discharge the accused.

In Kunj Behari Lal v. Emperor, AIR 1926 All 461 Daniels, J. was concerned with an application to revise

the order of the Additional Sessions Judge, Cawnpore, directing further enquiry into the case of certain accused who have been discharged. There, the order of the Additional Sessions Judge was attacked on the ground that it was not made on the merits and after arriving at a finding that there was reason for thinking that the accused had been wrongly discharged. The learned Judge referred to sub-section (2) of S. 253 Cr. P.C. which he considered as enabling a Magistrate to discharge without hearing the complainant or taking of the evidence produced in support of the prosecution, but only on the basis that the charge is groundless. For this reason, the learned Judge refused to interfered with the order of the Additional Sessions Judge which ordered further enquiry.

A Division Bench of the Madras High Court consisting of Waller and Pandalai, JJ. Kasinath Pillsi v. Shanmugan Pillai, AIR 1929 Mad 754 were in agreement with both these decisions. While Waller, J. pointed out that it is rather difficult to define what precisely is meant by the word 'ground less' and that it may probably meanthat 'the evidence must be such that no conviction could be rested on it' thereby implying that there was sufficient justification for the enactment of sub-section (2) of S. 253 Cr. P.C., Pnadalai, J. dealt with the argument of the counsel that the Sub Magistrate had no power to discharge under S. 253(2) Cr. P.C. before examining the complainant's witnesses as it would not be possible for the Sub Magistrate with that meagre material before him to consider that the charge was groundless. Pandalai, J. observed:

'On the question of legal competence, there is no warrant for saying that Magistrates are bound to examine all witness that may be offered or available before taking action under that sub-section. The words of sub-sections (1) and (2), S. 253 are as plain as any words can be on that point. Sub-section (1) states that that if on taking all the evidence referred to in S. 252 and if necessary examining the accused, no case is made out against the accused, the Magistrate shall discharge him. Sub-section (2) says that nothing in that section shall be deemed to prevent a Magistrate from discharging the accused at anay previous stage of the case, that is, before all the evidence referred to in S. 252 has been taken, if for reasons to be recorded the Magistrate considers the charge to be groundless.............The amount of evidence which would enable a Magistrate to say that a particular charge was groundless is so entirely dependent on circumstance that no general rule or direction except that he is required to arrive at his conclusion judicially and not capriciously is likely to be of any use'.

It may be pointed out that the matter came before that Division Bench as a Criminal Revision Petition was filed against the orders of the District Magistrate who, as may be gathered from the record, should have upheld the order of the Sub-Magistrate. It is in this state of law as to the discharge of the accused in the trial of warrant cases udder Chapter XXI of the Criminal Procedure Code, the provisions of S. 251-A Criminal Procedure Code have been conceived and enacted by Act XXVI of 1955.

we find in S. 251-A the absence of anything parallel to sub-section 253 Cr. P.C. obviously for the reason that it is not considered necessary in the interest of speed and expedition to allow the Magistrate to consider once again hearing the question of discharge of the accused after hearing the complainant and on taking of all such evidence as may be produced in support of the prosecution.

The sub- section (2)m of S. 251-A Cr. P. C. we consider is somewhat an amplification of sub-section(2) of S. 253 Cr. P.C. in that the consideration of the documents referred to in S. 173 and the examination of the accused as also giving the prosecution and the accused an opportunity of being heard, have been made compulsory. It is further to be observed that such a course would be in consonance with the altered mode of judging whether the charge is groundless when the case is one instituted on a police report. Sub-section (2)of S. 251-A Cr. P. C., no doubt, does not contain the direction that reasons why he considers the charge to be groundless should be recorded by the Magistrate.

Making this as a ground of attack and also as a point of differentiation between the procedure laid down for discharge of the accused between a case instituted on a police report and one filed otherwise, and also relying upon the decisions in In Re: Govidraj, AIR 1938 Mad 396: 1938 Mad WN 38: 39 Cri LJ 335 and in Re: Jayaraman, AIR 1949 Mad 66: ILR 1949 Mad 137 for the proposition that orders of discharge should be made only after the Court finally disposed of the matter and pointing to the absence of a direction for giving reasons in the order of discharge passed under subsection (2) of S. 251-A Cr.P.C. an argument that the order of discharge by the Magistrate when it is under sub-section (2) of S. 251-A Cr. P. C. cannot be revised either under S. 435 or 439 Cr. P. C. was advanced on a prior occasion in this Court, and the same has been dealt with in out decision in Lakshmi Narayana Raju v. Chella Reddy, AIR 1961 Andh Pra 177.

We have therein referred to the Full Bench decision of the Madras High Court In Re: Nalla Baligadu, : AIR1951Mad0 (FB) and held that not only an order of discharge passed under sub-section (2) of S. 251-A is revisable even when the order of discharge is in respect of a few accused or some of the offences and no reasons are assigned to show why the charge is groundless. We proceeded on the basis that an order of discharge under sub-section (2) of S. 251-A Cr. P.C. is revisable as the competence of a revision before the Sessions Court or the High Court has not been questioned, but only whether a revision on lie when the order of discharge was in respect of some accused or in respect of some offences and when the reasons are not given was alone discussed before us. Nevertheless, having regard to the undeniable fact that we approved the dictum in AIR 1929 Mad 754 we have gone on the track that orders of discharge passed under sub-section (2) of S. 251-A Cr. P. C. It could therefore be said that a further stage has thus been reached by judicial dicta in the consideration of the question whether orders of discharge passed in all cases falling under Chapter XXI of the Cr.P.C. could be revised, and that it should be taken that no doubts regarding it exist.

(7) The learned counsel for the petitioners, however, strongly relied upon the decision of Krishna Rao. J. in Govindaswamy v. state : AIR1960AP391 for urging the contrary view. Adopting the line of reasoning which found acceptance with that learned Judge, it is contended that under the new procedure specified in S. 251-A Cr. P.C. there is no inquiry but only a 'Trial' by the Magistrate and that an order for further inquiry is without jurisdiction.

The facts with which Krishn a Rao, J. was concerned are the following : A charge-sheet was filed against the accused under Sections 332 and 335 I.P.C. before the Additional District Munsif-Magistrate, Tirupatti. Additional District Manusif-Magistrate framed a charge under Section 35 I.P.C. but discharged the accused of the offence under Section 332, I.P.C. The assistant Public Prosecutor applied to the Magistrate to add a charge under Section 332, I.P.C. On this an application was filed under Sections 435 and 436 Cr. P.C. before the Sessions Judge, Chittoor. It was therein prayed that the order of implied discharge of the accused under Sec.332, I.P.C. may be set aside. The Sessions Judge remanded the case for further inquiry acting under Section 436 Cr. P.C.

Krishna Rao, J. held the view that the order of remand for further inquiry made by the Sessions Judge can only be a proceeding by way of 'retrial' and the contention that the Sessions Judge has no power to interfere in cases of discharge under sub-section (2)of Section 251-A is well founded . The learned Judge remarked that

'If a Sessions Judge, acting under sec. 435, finds in such cases that a trial should be conducted on charges in respect of which there was a discharge, the only course available to him is to report the matter under section 438 for the order of the High Court'

In the result, he set aside the order of the Sessions Judge. The learned Judge, however, considered thata since the matter has come before the High Court, this Court is competent to order the retrial of the petitioner on a charge to be framed under Section 332, I.P.C. besides the charge already framed under Section 335 I.P.C. In support of the latter method of disposal of the case, the learned Judge relied upon the decision in Ramgopal Ganpatrai Ruia v. State of Bombay : 1958CriLJ244 . He held that the powers of this Court acting under Section 439 Cr. P. C. to order a re-trial even when it is not a case of acquittal or of conviction, are available. This later point is not before us, because there was no discussion as to the nature of the powers of the High Court under Section 49 Cr.P.C. at the Bar. Further in the view we are taking of the matter that a revision lies and the Sessions Judge can order further inquiry we do not propose to touch upon this portion of the judgment of Krishna Rao, J. which relates to the ambit of powers of the High Court to order a re-trial.

Before we are advert to the reasoning adopted by Krishna Rao, J.in : AIR1960AP391 to hold that in the case of a warrant trail commenced on police report 'there is no judicial inquiry' we would point out that it is not by dispending with the taking of such evidence as may be produced in support of the prosecution or non-consideration thereof by virtue of sub-section (2) of Section 251-A, that the stage of 'inquiry' which otherwise precedes the trial of a warrant case instituted by a charge-sheet is done away with. We have to see if one the language of the provisions of Chapter XX an inquiry or a preliminary stge meant to proceed the trial of warrant cases is dispensed with. The learned Judge concedes that before the insertion of section 251-A Cr. P. C. a trial cannot take place without preliminary steps of a judicial inquiry. The learned Judge himself recognises that prior to the enactment of Section 251-A, it has been held by a caatena of cases by the several High Court that the trial would commence only on the framing of the charge by the court. It is therefore not necessary here to detail those cases.

But we are unable to find an support for the further proposition stated by the learned judge that an 'enquiry' includes not only the taking of evidence but also the econsidertin of that evidence before the framing of the charge.aay be pointed out that whatever may be the nature of the inquiry to be conducted under Chapter XVIII, such is not the case with reference to preliminary steps, be it termed inquiry or not, to be taken in the case before the framing of charge against the accused by the Court. For this reason also we are unable to subscribe to this view of the learned Judge in those general terms.

(9) The next point concerns the object of inserting Section 251-A in the Code. No doubt, the purpose is to abrogate the elaborate procedure available in the case of private complaint. But as already mentioned by us, a speedy trial of the accused without any avoidable delay is achieved by dispensing with the need to consider the matter on record again and gain for passing further or more orders of discharge as in the case of a private complaint

The reliance on the observation in Hanumantha Rao v. State of Andhra Pradesh,s : 1957CriLJ1463 in this connection by Krishna Rao J. cannot,in our view, support his conclusion that the preliminary steps or inquiry is altogether avoided in warrant cases. That there could be acquittals without proper trail of accused is also opposed to principles of proper or legal justice. Therefore to seek any support for the intention of the Legislature apart from what is expressed and could be gathered from the language of the section is, we think, not permissible.

(10) Now we will come to the point that the entire procedure under Section 251-A is olys a 'trial' and as there is no stage of inquiry, there can be no discharge of the accused, but only an acquittal of the accused. The hypothersis upon which the learned Judge bases is detailed as hereunder:

'In my opinion, there is nothing repugnant, to the context or to the ordinary meaning of the word, 'trial', if, in regard to warrant cases instituted on police-reports, the trial is held to commences soon as the stage of sub-section (7) to the accuser's claim to be tried and evidence is taken because there is obviously a trial even when the accused pleads guilty and is convicted thereon under sub-section (5) The question of framing charges may occur in the course of a trial (See section 227). A discharge may also occur in the course of a trial (See Section 33). A trial may be held without its being preceded but a judicial inquiry in summons case-- See Chapter XX. Then appears no reason why effect should not be given to the plain meaning of the expression 'at the commencement of the trial' used in sub-section (1) of Section 251-A'.

Taking the last of the reasons that a effect should be given to the words, 'at the commencement of the trial' which occur in sub-section (1) of Section 251-A, we are unable to see by the mere employment of the word 'trial' makes the entire procedure one without the preliminary steps or inquiry. That the effect of the use of those words is to convert the procedure into a trial without the preliminary steps could not be the intention at anay time becomes evident if for a moment it is remembered that the title of Chapter XXI itself which is 'Of the Trial of warrant Cases' existed even before the insertion of Section 251-A Cr. P.C. and nevertheless, the instant case has been although considered as consisting of a preliminary stage to be followed by trail of the accused. Also Section 251 which speaks of the procedure in warrant cases runs as follows:

' In the trial of warrant cases by Magistrates the Magistrate shall,--

(a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and

(b) in any other case follow the procedure specified in the other provisions of this Chapter'. This section describes the procedures for both the species of cases as in the course of trial as embracing the entire proceedings. Further on, the word 'triable' occurs in sub-section (3) of S. 251-A and also in Section 254. It is enjoined that the Magistrate competent to try is to frame a charge if he is of the opinion that there is ground for presuming that the accused has committed an offence 'triable' by that court. Therefore, having regard to the way in which the words 'trial' 'triable'and 'tried' have been used in this Chapter or elsewhere in the Code, it is not necessary to construe the word 'trial' as excluding the preliminary stages such as inquiry.

No doubt, 'inquiry' is defined under Section 4 (k) as including 'every inquiry other than a trial......', While it is significant that in the present Code there is no definition of 'trial' it is only in the Code of 1872 that 'trial' was also defined; but the same has been deleted in the Code of 1882. The Code of 1872 contained the following definition :

' 'Inquiry includes any inquiry which may be conducted by a Magistrate or Court under this Act'.

'Inquired into' means and includes every proceeding preliminary to trial.

'Trial' means the proceedings taken in Court after a charge has been drawn up and includes the punishment of the offender.

It includes the proceedings under Chapters XVI and XVIII, from the time when the accused appears in Court'.

In the earlier Code of 1861, the words ' enquired into' alone have been defined under Section 9. It has been stated that those orders were deemed to comprise 'every proceeding preliminary to trial'. There also no definition of 'trial' was found; but the word 'determined' was defined to comprise 'trial' and every subsequent proceeding, including the punishment of the offender'.

(11) This story, of the presence and absence of definitions in successive Codes which ultimately resulted in the delineation of giving a limited meaning to 'trial' and limiting 'inquiry' only to the preliminary stage which is not the determination of the cause, clearly, in our view brings out that the etymologocal meaning of 'trial' alone has to be employed as best suits the context and the situation in which it is used in the Code.

A Full Bench of the Madras High Court in Venkatachennayya v. Emperor, ILR 43 Mad 511 : (AIR 1920 Mad 337) (FB) had occasion to consider the meaning of the word 'inquiry' occurring in Section 117 Cr. P. C. Courts Trotter J. pointed out that Secs. 117, 118 and 119 Cr. P.C. undoubtedly speak of an 'inquiry' but repelled the contention that the word does not carry a narrower and technical sense as defined in Section 4 (k). he held the view that the word 'inquiry' is not used in those sections as meaning the preliminary inquiry before trial court in Chapter XVIII and that the word 'trial' found in the Code should be regarded as being used where the context requires it in a general and popular sense. The learned Judge remarked :

' It is quite true that the word trial is not defined in the Code, but it may not unreasonably be urged that the definition of inquiry impliedly defines trial as every proceeding which is not an inquiry'.

He adds further on the following at p. 527 (of ILR Mad ) : (at P.344 of AIR):

'No doubt , if manifest absurdity or injustice ensued from treating inquiry in any particular context as being used in the technical sense, the Court would feel itself at liberty to assume that the word is used in a looser and more popular sense'.

In the same case, Wallis , C. J. concurred with this opinion of Coutts Trotter, J. and pointed out the following :

'Though we talk of the trial of persons, what are really tried, both in civil and criminal cases, are issues. An ordinary Criminal trial in England is in the language of the common law, a trial of the general issue joined between the Crown and the accused on the latter plea of 'not guilty' of the charge preferred against him.

I think the framers of the Code had this distinction in mind when they framed the definition of inquiry so as to exclude 'trial'

The popular sense of the word 'trial' would be hearing of the case before a Court which would be the proceedings of the case from the beginning to the end and does not exclude the inquiry or preliminary step.

To a similar effect, we consider, is the excerpt quoted by krishna Rao, J. in : AIR1960AP391 , from the decision of the Supreme Court in State of Bihar v. ram Naresh, (19570 SCJ 336 : AIR 1957 SC 889 at p. 394, though the learned judge made use of it for another purpose. we would for completeness of the discussion reproduce the same.

It was observed by the Supreme Court :

' The word 'trial' is not defined in the Code. 'Trial' according to S roud's Judicial Dictionary means 'the conclusion by a competent tribunal, of questions in issue in legal proceedings, whether civil or criminal' (Stroud's Judicial Dictionary, 3rd Edn. Vol. 4, page 3092) and according to Wharton's Law Lexicon means 'the hearing of a cause, civil or criminal before a Judge who has jurisdiction over it, according to the laws of the land' (Wharton's Law Lexicon, 14th Edn. page 1011). The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code to which our attention has been drawn the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in another context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the particular context in which they are used and with regard to the scheme and purpose of the provisions under consideration.

It may not be inappropriate to refer to what Wilson, J. observed in Hari Dass Sanyal v. Saritulla ILR 15 Cal 608 (FB) in this context. We find the following at p. 620 :

' The word 'enquiry' is one of frequent occurrence in the Code. The definition in the interpretation clause is very wide, and in some sections of the Act it certainly includes trial. If that meaning were adopted here, it might be that S. 437 would authorise a Sessions Judge or District Magistrate, not only to order further enquiry preliminary to trial but also to order a charge to be framed and the trail of that charge to proceed. The word is often, however, used in a more specific sense, to denote the enquiry before a Magistrate preliminary to trial, which regularly results in a charge or discharge'.

The observations in these decided cases regarding the meaning to be attached to the word 'trial' clearly justify the need of not costruing the words 'at the commencement of the trial' occurring in sub-section (1) of Section 251-A Cri. P.C.as excluding the preliminary steps akin to inquiry and construing the proceedings as a 'trial' after framing charge from the very commencement , but only understanding these words 'as at the commencement of the hearing of the case', ascribing to the word 'trial' its popular sense.

It is of significance also to observe that though the words 'as at the commencement of the hearing occur in sub-section (1) of section 251-A, the use of the word 'trial' has been made as already pointed out, both in the title to the Chapter as well as in Section 251 Criminal Procedure Code and the same continue to remain both before and after the amendment of that section and that in spite of the presence of the word 'trial'in those provisions it has been still possible to arrive at a conclusion that an order of discharge could be passed and that the Sessions Court or the High Court while setting aside orders of discharge under Secs. 435 and 436 Cr. P. C. exercised the to order further enquiry. This clearly shows that though it is termed that the entire thing falling under Chapter XX1 is a trial and the preliminary stages have not been specifically demarcated as an 'inquiry' an order of discharge can still be passed at a certain stage . The decisions (already referred to ) which upheld the view that revision lies against orders of discharge have, to our mind, proceeded on the basis that what really matters for the power to exercise revisional jurisdiction is whether by order of the Magistrate the accused is 'discharged'.

(12) In this connection, it will be useful to refer to some of the kinds of order of discharge which have been mentioned to in the Code. At the outset, it may be observed it is not as though an order of discharge cannot be passed after the charge is framed. On the other hand, Sections 333 and 213 illustrate some of the cases where the discharge is after the framing of the charge. Sub-section (2) of Section 213 Cr. P. C. empowers the Court to cancel the charge and discharge the accused if, after hearing the witnesses for the defence, the Magistrate is satisfied that there are not sufficient grounds for committing the accused. This section occurs in Chapter XV111. Section 209 which deals either the discharge of the accused in the course of inquiry under Chapter XV111 in any proceeding instituted otherwise than on a police report, the same pattern as is adopted in Section 213 is found. Sub-section (6) of Section 207-A serves the same purpose as sub-section (2) of Section 251-A. Section 333 which relates to special provisions for the High Court, has it that the High Court can discharge the accused before the return of the verdict if the Advocate General informs the court on behalf of the Government that he will not further prosecute the defendant upon the charge. The stage at which this can be done can therefore be after the charge has been framed, but all the same it is laid down in that section that that discharge will not amount to an acquittal unless the presiding judge otherwise directs.

These, in our view exemplify the opinion that has been given vent to in some decisions that the word 'discharge' may be for many different reasons though the effect may be the same. It is also for that reason that this word 'discharge' has not been defined as resulting either adopting a particular procedure or at a particular point. In : AIR1951Mad0 (FB), this omission of a definition is adverted to. It is interesting to note in this connection that the word 'charge' has not also been used in the only specific sense as meaning the charge on which the accused is asked to take his trial. Even in the inquiry stage or when, before the preliminary steps are over and an order of discharge is passed the Magistrate could consider the charge against the accused as groundless.

Therefore, it is obvious that the word 'charge in sub-section (2) of section 251-A does not carry the same meaning as the word 'charge' in subsection (3) of the same section. So also is the employment of that word in the loose and technical sense in Section 253 and 254 respectively. There we refer to only to show that it is not the use of the word 'inquiry' that delineates the preliminary steps or procedure before the trial takes place, but 'inquiry' in the loose and popular sense could be applied even to preliminary steps, if such are contemplated by the procedure laid down in the hearing of any case.

It has however, to be pointed out that the word charge is also used in connection with inquiry or preliminary steps. There it is not synonymous with the 'charge' framed to put the accused on trial. Indeed no trial commences without a 'charge' being framed and therefore the mere consideration of the accusation or charge before discharging the accused as required under sub-section (2) of Section 251-A, or the use of the words at the commencement of the trial does not, in our view , make the entire proceedings only for that reason a trial . There is nothing to show that the trial of warrant cases is denuded of the preliminary steps which are at least in the nature of an 'enquiry' . We therefore consider that these reasons impel us to hold that this 'discharge' under sub-section (2) of Section 251-A cannot in any sense be equated or considered that these reasons a 'trial' . Having thus pointed out that there can be an order of discharge in the course of proceedings in warrant cases, we are clearly of the opinion that the charge framed under Sub-section (3) of Section 251-A when the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XX1 is the stage at which the 'trial' of a warrant case commences. Till then the procedure concerns the preliminary steps and the discharge of an accused under sub-section (2) of section 251-A Cri. P. C. can in no sense end in an acquittal which results only after he trial of the accused.

Similarly it is when the stage mentioned in Section 254 is reached that the trial begins with the framing of the charge by the Court, and therefore the procedure which precedes it and the discharge of the accused under section 253, as has been consistently held cannot at all be treated in any sense an acquittal. All the same we are unable also to subscribe to the proposition that there is no trial until the accused pleads guilty or when the Magistrate proceeds to take evidence under sub-section (5) or sub-section (7) of section 251-A Cr.P.C. The 'trial' in its technical sense commences when the charge is framed by the Court under sub-section (3) of section 251-A Cri P.C.

Section 227 Cr. P. C. pertains to the alteration or addition of charges in the course of trials, but that is only in the nature of amplifying or modifying the charge already framed with a view to make it more specific. The analogy sought to be drawn from the nature of a trial, in a summons case cannot, in our view be considered helpful as no two stages in the trial of summons cases are indicated by the provisions in the code and as the trial in a summons case cannot be preceded by judicial inquiry or by any preliminary steps. Further, it is neither possible nor necessary to conclude that by use of the words 'at the commencement of the trial' in sub-section (1) of Section 251-A the preliminary steps or stage before the charge is framed to put the accused on trial, is put an end to in respect of a warrant case. In our view, the question is not whether there could be any scope for the introduction of preliminary steps akin to inquiry in warrant cases, but whether those preliminary steps have been indicated in the procedure laid down by the provisions of Chapter XX1 and when they are so present whether they could be treated as of no effect.

We are inclined to hold the view that since the word 'discharge' in sub-section (2) of Section 251-A has been specifically used in respect of orders passed before framing a charge whenever the accusation or charge upon which the accused is brought to Court is found to be groundless, it is not possible to construe the 'discharge as acquittal without straining the language.

(13) It seems to us that the criterion for judging the content of power of a revisional Court under Section 436 or Section 437 Cr. P. C. is to have due regard to the language used in those sections. In Section 436 it is the wrong dismissal of a complaint under section 203 or sub-section (3) of Section 204 or the discharge or any person accused of a offence that gives the power to a Sessions Judge or the High Court to revise the order and order further inquiry. Section437 concerns with the power to order commitment in a case triable exclusively by a Court of Section when an accused person has been improperly discharged. Thus, the revisional powers of a Court under these two sections could be invoked whenever there is an order of discharge. It would not therefore be necessary for the Court which exercises the revisional powers to consider whether one order of discharge resembles or differs from another, or by resembles or differs from another, or by reason of the difference in the nature of the discharge effected by the order the power of the Court stands altered. It stands to reason to hold that whenever there is an order of 'discharge' filling under any of the provisions of the Code and so delineated by language of the Code those orders fall within the purview of these section subject only to the classification discernible for the purpose of the actual exercise of that power under the appropriate provision giz. Sec. 436 or 437, Cr. P. C.

(14) It needs only to be observed that in the view we have that in the view we have taken of the question that the order of discharge can be revised by the Sessions Judge exercising powers under Section 436 Cr. P. C., it is hardly necessary to point out that an order passed under sub-section (2) of Section 251-A should necessarily be considered as on falling under the later part of Section 436 which pertains to 'the case of any a person accused of an offence who has been discharged'' and that the earlier portion pertaining to a dismissal of a complaint under Section 203 or sub-section (3) of Section 204 cannot be called in aid as it would not apply. We have also to make it clear that the view of the learned Sessions Judge that a discharge under sub-section (2) of Section 251-A Cr. P. C. is virtually a dismissal of the complaint, under section 203 Cr. P.C. cannot be sustained.

(15) From the foregoing, it becomes obvious that we are unable to agree with the view taken by Krishna Rao, J. in : AIR1960AP391 . It follows that the Sessions Judge of a Adilabad had powers to order further inquiry in exercise of the revisional powers. This revision petition is accordingly dismissed.

LE/R.G.D. Revision petition dismissed.


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