1. This is a reference under Section 438, Cr. P. Code, by the learned 1st Additional Sessions Judge of Agra recommending that an order of commitment passed by a 1st class Magistrate, Sri R. K. Rai, on 30-9-1954 be quashed with such directions as this Court may deem necessary. That the commitment in question was by a competent Magistrate is not denied. Such a commitment may be quashed by the High Court only, and only on a point of law. The point of law raised by the reference, and supported, on behalf of the accused and the State but controverted on behalf of the complainant, is that the committing Magistrate failed to comply with the provisions of Sections 208, 211 and 212, Criminal P. C.
2. The order of commitment in question was made on 30-9-54 by a 1st class Magistrate of Agra in proceedings initiated on a complaint by Rajendra Kumar Jain, Director of the Vir Industries, Delhi, against Chadami Lal, Lal Behari, Ram Sarup Gupta, Pearey Lal and three others for offences under Sections 409, 465, 467, 471 and 477-A, I. P. C. It is said that there was a sale, or agreement of sale, of the Bimal Glass Works by Chhadami Lal to the VI Industries in September 1950. The handing over of the Glass Works was however postponed by agreement until 1-5-1951, and during this period the Works were run by the quondam owner Chadami Lal. It was during this period that Chadami Lal and the other accused are said to have committed the offences in question.
3-4. After taking cognisance of the offences on the complaint and examining the complainant upon oath, the Magistrate passed an order under Section 204, Cr. P. Code, on 25-2-1954. The order was 'there appears to be prima facie case. Summon the accused.' In the summons issued to the accused it was mentioned that their attendance was necessary to answer to a charge of the offence punishable under Section 486, I. P. C. In the Vakalatnamas filed on behalf of the accused after the service of summons all the aforesaid offences in respect of which the complaint had been filed were however enumerated.
The prosecution evidence was closed on 6-8-1954 and 20-8-1954 was fixed for the statements of the accused. On the last mentioned date statements of the accused were recorded and it was stated in the order-sheet that as the accused denied the charges, the case be put up on 28-8-1954 for arguments on the framing of the charge. After certain adjournments and a local inspection arguments were heard on the 16th, 20th and 23rd of September 1954, and the case was ordered to be put up on 30-9-1954. On 30-9-1954 charges were framed in respect of offences under Sections 409, 465, 471 and 477-A, I. P. C., and Chadami Lal, Lal Behari, Ram Sarup Gupta and Pearey Lal were committed to the Court of Session to stand their trial in respect of those offences, while the remaining three accused were discharged.
The record was received in the Sessions Court in due course but it was not till sometime in January 1956 that 30-1-1956 was fixed for commencement of the trial in that Court it appears that in the meanwhile the matter of discharge of one of the accused was pending and was finally decided on a revision by this Court on 6-10-1955. On 7-1-1956 the application leading to the making of the present reference by the learned Additional Sessions Judge was preferred on behalf of the accused, it has to be seen whether the aforesaid point of law raised in the reference is well-founded and justifies the quashing of commitment.
5. In the view of the learned Additional Sessions Judge the learned Magistrate tried the accused as in a warrant case but, on its appearing to him after hearing arguments on the 16th, 20th and 23rd September 1954, that the case was one which ought to he tried by the Court of Sessions, he passed the order of commitment in question under Section 213, Cr. P. Code, without observing the provisions relating to enquiry before commitment provided by Ch. XVIII of the Code, as it was incumbent upon him to do under Section 347 of the Code.
The provisions which, according to the learned Additional Sessions Judge, the Magistrate had failed to observe before making the order of commitment were those of Sections 208, 211 and 212, as noticed already. The argument of the learned counsel appearing for the complainant, who opposed the reference, was that the Magistrate could not be said to have failed to comply with the provisions of Section 208, and that his non-compliance with the provisions of Sections 211 and 212 was curable under Section 537 of the Code.
6. The disposal of the question of the alleged non-compliance by the Magistrate with the provisions of Section 208 depends on whether it is a fact, as observed by the learned Additional Sessions Judge, that the accused were tried by the Magistrate as in a warrant case. The learned counsel appearing for the complainant pleaded that that was not so. Non-compliance with the provisions of Sections 211 and 212 subsequent to the framing of the charge being admitted, only the comparative provisions relating to enquiries under Ch. XVIII and to trials of warrant cases under Ch. XXI prior to that stage need be considered.
These provisions, contained in Sections 208, 209 and 210 relating to enquiries, and in Sections 252, 253 and 254 relating to the trial of warrant cases, show that the two procedures are alike except in two particulars: (1) in an enquiry it is incumbent upon the Magistrate, as provided by Section 208, to hear the complainant (if any), and take such evidence as may be produced in support of the prosecution or on behalf of the accused, and the Magistrate may also call for such evidence as he may think proper, but in a warrant case it is incumbent upon the Magistrate, as provided by Section 252, to proceed to hear the complainant (if any), and only take all such evidence as may be produced in support of the prosecution, and (2) the examination of the accused after the recording of evidence is, if necessary, for the purpose of enabling him to explain any circumstances in the evidence against him' in an enquiry, as provided by Section 209, but in a trial of warrant case such examination, as provided by Section 253, is not specifically for any such purposes but the Magistrate may make such examination, if any, of the accused as he thinks necessary. In either case after the recording of the evidence and the examination of the accused there may either be a discharge of the accused or a framing of the charge against him.
7. There is no doubt that only the prosecution evidence, but no evidence on behalf of of the accused, was taken in this case before the framing of the charge. According to the learned counsel for the accused the Magistrate was bound to ask the accused, after the prosecution evidence was over, if they had any evidence to produce in their behalf. And in support of this submission he cited a single Judge decision of this Court reported as Jaswant Singh v. Emperor, AIR 1924 All 317 (A).
That case is however distinguishable from the present in that the Magistrate there refused to take defence evidence even though an application for examining witnesses had been made on behalf of the accused. There was no such move on behalf of the accused at any stage in the present case. Kanhaiya Lal, J., however, went on to observe that the Magistrate erred in putting no question to the accused whether they had any evidence to produce. From what has been pointed out above, this observation was merely an obiter dictum., Were it the ratio of the decision, I would, with all respect, not have found it possible to agree. Wherever the Legislature wanted the taking of a certain action by the accused to depend on some initiative on the part of the presiding officer of the Court it expressly said so. See, for instance, the provisions of Section 211 in an enquiry and of Sections 255 and 256 in a trial of warrant cases.
Under Section 211 'the accused shall be required at once to give in orally or in writing a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial.' Under Section 255, after the charge has been read and explained to the accused, 'he shall be asked whether he is guilty or has any defence to make'. Under Section 256 in the matter of further cross-examination of prosecution witnesses the accused 'shall be required to state' if he wishes to do so. There is no such duty cast on the Magistrate under Section 208 in regard to the production of defence evidence or, for the matter of that, that of prosecution evidence either.
In fact, the contrast in this connection between the provisions of Sections 208 and 255 is a pointed one: both provide, inter alia, for production of defence evidence, but whereas under the latter section the accused 'shall be asked whether he has any defence to make', the former leaves the production of defence evidence to the option of the accused. The learned counsel for the accused submitted that it is the practice of Magistrates to ask the accused even at the stage provided by Section 208 if he wishes to produce evidence. But when a rule of practice or prudence, or whatever else it may be called, conflicts with the law as laid down by the Legislature, the Court is bound to follow the law. Emperor v. C. A. Mathews : AIR1929Cal822 .
Under Section 208 of the Code, therefore, while it is no doubt incumbent upon the Magistrate to take such evidence as may be produced on behalf of the accused, the Magistrate is not bound to ask the accused to produce such evidence. That being so, the accused himself should be responsible for the non-production of evidence in his behalf at that stage unless it could be shown that he was prevented from doing so by some misunderstanding created on account of any act of the Magistrate or the prosecution or otherwise. In the present case, as noticed already, such a misunderstanding is said to have been caused because, it is alleged, the Magistrate adopted a procedure as laid down in Ch. XXI relating to the trial of warrant cases. To this proposition it does not seem possible, however, to subscribe, and that for the following reasons.
8. The learned counsel for the accused argued that as prosecution commences with the issue of process, as the process in this case was in respect of an offence under Section 406, I. P. C., which is not triable exclusively by a Court of Session but alternatively by that Court or a Magistrate, and as the procedure for an inquiry under Ch. XVIII of the Code is to be adopted where the case is triable exclusively by a Court of Session, as laid down by Section 207, the Magistrate was bound to adopt, and will be deemed to have adopted, the procedure for trial of warrant cases as laid down in Ch. XXI of the Code.
This argument leaves out of account the further provisions of Section 207 relating to enquiries where the case 'in the opinion of the Magistrate, ought to be tried by such Court', meaning the Court of Session or the High Court. It is manifest therefore that the procedure prescribed by Ch. XVIII is not confined in its application to cases triable exclusively by a Court of Session but is applicable to those cases also which though triable both by the Magistrate or the Court of Session, ought in the opinion of the Magistrate to be tried by the latter. This may be because, even though the Magistrate be competent to try the case, he is of the opinion that the offence could not be adequately punished by him. The argument that the Magistrate in this case was bound to adopt, and will be deemed to have adopted, the procedure for trial of warrant cases as laid down in Ch. XXI of the Code has therefore no force.
The offence mentioned in the summons should be deemed to have given notice to the accused that it was optional with the Magistrate to hold an inquiry against them with a view to committing them to the Court of Session or himself to try them as in a warrant case. Despite issuance of the summons in question therefore the matter was at large as to whether the Magistrate was going to adopt one procedure or the other. Nothing had in any case happened to induce the belief in the accused that they would be tried as in a warrant case.
It may now be seen whether any such belief could reasonably be said to have been induced by anything that the Magistrate may have done later when the accused appeared before him. The only two things which the Magistrate did before framing the charge and making the order of commitment was that he took evidence produced in support of the prosecution and examined the accused. The taking of prosecution evidence was however a matter of procedure common to both an inquiry and a trial. There is however one thing which is significant in this connection and that is the manner of cross-examination of the prosecution witnesses.
The cross-examination of each and every one of the prosecution witnesses was lull and exhaustive which was suggestive rather of cross-examination as in an inquiry under Clause (2) of Section 208 than of partial cross-examination usually done before the framing of charge in trial of warrant cases in expectation of the fuller opportunity for further cross-examination after the charge under Section 256 of the Code. So far as the examination of the accused is concerned, that appears manifestly to have been done in accordance with the provisions of Section 253 rather than those of Section 209.
As noticed already, the former provides for the making of such examination (if any) of the accused as the Magistrate thinks necessary, while the latter speaks of the Magistrate having (if necessary) examined the accused for the purpose of enabling him to explain any circumstances in the evidence against him. There is no doubt that in both the cases the accused is to be examined by the Magistrate only if necessary, but whereas there is nothing in Section 253 indicative of the circumstance or circumstances in which the Magistrate is to consider the examination of the accused necessary, Section 209 specifically lays down the purpose for which the examination of the accused may become necessary--the purpose of enabling the accused to explain any circumstances in the evidence against him.
In other words, where in the evidence produced against the accused there do appear circumstances which require explanation by him it is incumbent upon the Magistrate to examine the accused for the purpose of enabling him to explain those circumstances in an inquiry under Section 209. Examination of an accused for that purpose is necessary even in a trial, but that may be done under Section 342 after the framing of the charge and further cross-examination of the prosecution witnesses.
The reason for the making of the aforesaid specific provision in Section 209 corresponding to the provisions of Section 253, is clear: in an inquiry all the circumstances which an accused may have to explain should have already appeared in the statements of prosecution witnesses before the framing of the charge since those witnesses are not to be examined again at a later stage, but in a trial of warrant cases those incriminating circumstances could only be said to have been brought on record after prosecution witnesses have been cross-examined further after the framing of the charge.
This appears to me to be the reason behind the pointed difference in the language relating to the examination of the accused employed in the two Sections 209 and 253. Where therefore the Magistrate examines the accused in the manner provided by Section 209 it should give clear notice to the accused, if any such notice be still necessary, that the proceedings are to be in the nature of an inquiry as provided by Ch. XVIII and not of a trial in warrant case as provided by Ch. XXI of the Code. The record of the examination of the various accused in the present case shows that each and every one of them was examined with meticulous detail for the purpose of enabling them to explain the various circumstances appearing in the evidence against them.
It would appear therefore that the Magistrate gave clear indication of the fact that he was holding an inquiry and not a trial. In point of fact, the accused do not appear ever to have been under any delusion on that score: the Vakalatnamas which they filed at the earliest and in which all the offences, including that under Section 467 which was exclusively triable by a Court of Session, were specifically mentioned, and the method of cross-examination of prosecution witnesses adopted by them clearly showed that they knew that they would be subjected to an inquiry and not to a trial.
It will appear therefore not only, that the Magistrate adopted the procedure provided for inquiries as provided by Ch. XVIII, and not the procedure provided by Ch. XXI for trial of warrant cases, but that the accused were fully aware of that fact from the very commencement of the proceedings. For the non-production of defence evidence as contemplated by Section 208, therefore, the accused themselves must be held responsible and it could not be interpreted as amounting to non-compliance with any provision of that section by the Magistrate vitiating the order of commitment subsequently passed by him.
9. Coming now to the provisions of Sections 211 and 212, which come after the framing of the charge, there is no doubt that the Magistrate did not comply with them. Under these provisions it is incumbent upon the Magistrate to require the accused immediately after the framing of the charge to give a list of defence witnesses whom the accused might wish to summon to give evidence on his trial, and the accused may also be allowed to give a further list of such witnesses at a subsequent stage, it is discretionary, under those provisions, for the Magistrate to summon and examine any of such witnesses.
After examination of these witnesses the Magistrate may either make an order of commitment or he may cancel the charge and discharge the accused. There appears to be nothing in the provisions in Ch. XXIII relating to trials before Courts of Session which precludes the Court from summoning on behalf of the accused any witness except those mentioned in the lists prescribed by Section 211. The only ground on which it could therefore be said that a failure of justice had been occasioned within the purview of Section 537 of the Code by reason of the Magistrate having failed to comply with the provisions of Sections 211 and 212 was that the Magistrate may possibly have summoned and examined defence witnesses and, as a result of that, possibly cancelled the charge and discharged the accused.
But, as laid down in the Explanation to Section 537, in determining whether any error, omission or irregularity in any proceeding under the Code had occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. At no stage of the proceedings before the Magistrate however do the present accused appear to have taken any objection with regard to the production of defence evidence. As noticed already, they took no step to produce defence evidence at the stage contemplated by Section 208.
When the charge was framed after protracted arguments, and before the order of commitment was passed on 30-9-1954, no objection was raised on behalf of the accused about non-compliance with the provisions of Sub-section (1) of Section 211, and no attempt was made by them to file a list of defence witnesses which they could have done at their option under Clause (2) of that section. That being so, non-compliance with the provisions of Sections 211 and 212 of the Code cannot be said, in the circumstances of the present case, to have occasioned a failure of justice, and the omission should be held as cured under Section 537 of the Code.
10. The learned counsel, appearing for the accused cited two decisions of the Calcutta High Court reported as Sripati Dubey v. The State, : AIR1953Cal10 , and Kashinath Das v. Kalipada Das : AIR1953Cal12 , where it has been held that the provisions of Sections 211 and 212 are substantial provisions of procedure non-compliance with which is not curable by the provisions of Section 537, Cr. P. C.
With all respect, I find myself unable to accept such immutable view of the matter since it is possible that, despite non-compliance with the provisions of Sections 211 and 212, no failure of justice may in fact have been occasioned in a case in view of the facts and circumstances of that case. And when that is the situation there should be no justification for quashing the order of commitment for non-compliance with those provisions.
In view of the circumstances noticed above, the present appears no doubt to be a case of that exceptional nature.
Another illustration of a case of that nature will be found in Chhagansingh v. The State, . In that case also non-compliance by the Magistrate with the provisions of Section 211, Cr. P. Code, was not held to have vitiated the trial because it was found that the accused themselves did not really want to produce any further evidence, That was also my view as Judicial Commissioner, Himachal Pradesh, in a case reported as Sant Ram v. The State .
There was non-compliance with the provisions of Section 211 (1) in that case also since the accused was examined under that provision after an order of commitment had been made; but this irregularity was held to be cured under Section 537 as the accused refused to give any list of witnesses before the committing Magistrate and stated that he would submit a list in the Court of Session.
11. From what has gone before it is clear therefore that it could not be said that the Magistrate had failed to comply with the provisions of Section 208, and that non-compliance by him with the provisions of Sections 211 and 212 stood cured under Section 537 of the Code. The only ground of complaint of the accused appears, after all, to be that he was deprived of the opportunity of producing defence evidence before the passing of the order of commitment. That opportunity they certainly will have in the course of their trial in the Court of Session.
As adverted to already, the accused could not be prevented from producing defence evidence in the Court of Session, should they wish to do so, on the mere ground of non-compliance with the provisions of Section 211 in the Court of the committing Magistrate. Should that evidence be such as to nullify the prosecution case, the only difference would be that instead of the charge being cancelled and the accused being discharged by the committing Magistrate, the accused would be acquitted by the Court of Session. Taking everything into consideration therefore the present does not seem to be a fit case for quashing the commitment.
12. The reference made by the First Additional Sessions Judge of Agra is therefore rejected, and he is directed to proceed without delay with the trial of the present four accused in accordance with the law.The record of the case will be returned forthwith tothe Court below.