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In Re: Pedda Amma Muttigadu and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 191 of 1957 and Criminal Revn. Petn. No. 142 of 1957
Judge
Reported inAIR1959AP469; 1959CriLJ1044
ActsCriminal Penal Code , 1898 - Sections 173 and 207A
AppellantIn Re: Pedda Amma Muttigadu and ors.
Appellant AdvocateG. Hariddatta Reddy, Adv.
Respondent AdvocateA. Subba Rao, Adv. for Public Prosecutor
DispositionRevision allowed
Excerpt:
.....made by magistrate - order of commitment challenged on grounds that magistrate did not examine witnesses - magistrate has discretion to summon eye witnesses when prosecutor did not do so at preliminary enquiry - in terms of sound judicial practice magistrate has to call upon witnesses in committal proceedings and follow remaining procedure prescribed - held, petition would be quashed by section 173 if no eye witness examined at committal proceedings - order of commitment solely on documents not justified. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products..........that where, as in this case, there are eye-witnesses and they are not examined at the preliminary inquiry, a commitment based solely oh the documents specified in section 173, cr. p. c., is bad in law and must be quashed.6. i am unable to accept either of these contentions. section 207-a was inserted by the amendment act xxvi of 1955 and lays down the procedure to be followed by committing magistrates in proceedings instituted on police reports; and sub-section (4) is in the following terms :'the magistrate shall then proceed 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; and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or.....
Judgment:
ORDER

Basi Reddy, J.

1. This is a revision petition filed under Sections 435 and 439, Cr. P. C., seeking to quash the order of commitment made by the Munsif-Magistrate, Miryalaguda, by which the petitioners havei been committed for trial before the Court of Sessions, Nalgonda, on a charge under Section 304, I. P. C. This case paises an important question of procedure in inquiries preparatory to commitment in cases instituted on police reports and the question turns on the true construction of the provisions of Sub-section (4) of Section 207-A, Cr. P. C.

2. The facts leading up to this revision are asfollows:

3. The Sub-Inspector of Police of Mahkapatnam filed a charge-sheet before the Munsif-Magistrate, Miryalaguda, alleging that on 10-10-1956, the petitioners had belaboured one Koditekka Ramulu with sticks and had thereby caused his death, and were therefore liable for an offence under Section 304, H. P. C. To prove the prosecution's case, 17 witnesses were cited in the charge-sheet of whom as many as six were shown as eye-witnesses to the occurrence,

4. At the preliminary inquiry the prosecution did not choose to produce any witness, nor did the Magistrate of his own accord examine any of the witnesses. The Magistrate passed his order of commitment on the documents furnished by the police under Section 173, Cr. P. C.

5. The legality, correctness and propriety of that order are challenged in this revision. It is contended by the learned Advocate for the petitioners that the procedure adopted at the preliminary inquiry is illegal, in that a duty lay on the prosecution to have produced all eye-witnesses and that duty has been shirked; alternatively it is argued that even if the language of the sub-section does not lend itself to such a construction, yet the intention of the Legislature in enacting Sub-section (4) of Section 207-A, Cr. P. C., was that all direct witnesses should be examined during the committal proceedings and, therefore, the word 'may' occurring in the first part of Sub-section (4) should be read as 'shall'. The result is stated to be that where, as in this case, there are eye-witnesses and they are not examined at the preliminary inquiry, a commitment based solely OH the documents specified in Section 173, Cr. P. C., is bad in law and must be quashed.

6. I am unable to accept either of these contentions. Section 207-A was inserted by the Amendment Act XXVI of 1955 and lays down the procedure to be followed by committing Magistrates in proceedings instituted on police reports; and Sub-section (4) is in the following terms :

'The Magistrate shall then proceed 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; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.'

It will thus be observed that the language of the sub-section, understood in its natural and ordinary sense, does not make it obligatory on the part of the prosecution to produce the eye-witnesses; all that the first part of the sub-section says is, that the Magistrate shall take the evidence or such of the eye-wit-nesses as may be produced by the prosecution. The production or non-production of such witnesses is thus left to the discretion of the prosecutor; and the sub-section does not empower the Magistrate to compel the production of such witnesses by the prosecution.

That is the plain meaning of the words used in the sub-section. The words themselves declare the intention of the Legislature. If the intention of the Legislature were otherwise, one would expect to find it expressed in the sub-section; indeed, as was observed by Lord Atkin in Narayanaswamy v. Emperor, AIR 1939 PC 47 :

'But in truth when the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intentions.'

7. This cardinal canon of construction is often referred to as the 'golden rule' and was stated thus by Lord Wensleydale in Grey v. Pearson, (1857) 6 HLC 61 (106)):

'I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but: no farther.'

8. It follows that the first contention of the learned Advocate for the petitioners must fail. As regards the second contention, all that need be said is that to substitute the word 'shall' for the word 'may' occurring in the first part of Sub-section (4), would be to reduce the sub-section to a meaningless jumble of words.

9. The result of the foregoing discussion is that in this case the procedure adopted in the lower Court in not examining any of the eye-witnesses, is not open to challenge as opposed to law, and the order of commitment is not liable to be set aside on the ground of illegality.

10. But the question still remains whether, in the circumstances of this case, the commitment is proper. I am firmly of the view that it would be a wholesome practice and one which would be fair to the accused if, in every case where there are eyewitnesses, the prosecution produces all, or at any rate some of them, to be examined at the preliminary inquiry. If the prosecution does not do so, a committing Magistrate would, in my judgment, be exercising a sound judicial discretion if, acting under the second part of the sub-section, he summons and examines some, if not all, the eye-witnesses. When neither of these courses is taken and, in spite of a number of eye-witnesses having been cited in the charge-sheet, no witness is examined during the committal proceedings and a commitment ensues and is based merely on the documents referred to in Section 173, Cr. P. C., such a commitment, though not illegal, is liable to be quashed by the High Court in the exercise of its revisional jurisdiction on the ground of impropriety.

11. That is precisely the position in the present case. As noticed already, as many as six eye-witnesses were cited in the police report, and yet not a single witness was examined at the preliminary inquiry.

12. I, therefore, allow this revision petition,quash the order of commitment passed by the Munsif Magistrate, Miryalaguda, and direct him to hold a 'de novo' inquiry. He will give an opportunity tothe prosecution to produce all the eye-witnesses or at least some of them. If, however, the officer incharge of the prosecution does not act with candour and fairness and, taking refuge under the letter of the law, fails to produce the witnesses, the Magistrate will 'suo motu' summon all or at least some of the eye-witnesses and take their evidence. He will thereafter follow the procedure prescribed by Sub-sections 5 to 16 of Section 207-A, Cr. P. C.


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