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Dullah Pal Vs. Bahar HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1985CriLJ2015
AppellantDullah Pal
RespondentBahar HusaIn and ors.
Cases ReferredAchchey Lal v. State of U.P.
Excerpt:
- - provided that if it appears to the magistrate that the offence complained of is triable exclusively by the court of session, he shall call upon the complainant to produce all his witnesses and examine them on oath. was well conscious of all complications and situations that may arise whatever expression has been used must be construed to have been used in its literal sense......commitment has undergone a complete change. the present cr. p.c. makes express provision regarding cases triable exclusively-by the court of session and cases triable exclusively by the magistrate. in fact, cases under cr. p.c. (new) have been categorised in two compartments, (1) exclusively triable by court of session and (2) exclusively triable by the magistrate. the other vital change is that as regards police cases a commitment can be made without examining even a single witness simply on the perusal of papers and other materials with charge-sheet. the provision for defence has also been taken away and now police challan cases can be committed on perusal of the papers alone while complaint cases exclusively triable by the court of session are committed after examining all the.....
Judgment:
ORDER

M. Wahajuddin, J.

1. The present petition under Section 482, Cr. P.C. is directed against the order dt. 19-8-1981 of the second Additional Sessions Judge in S.T. No. 133 of 1980. Heard counsel for the parties. It would appear that it was a cross case. The petitioner had also lodged F.I.R. and that F.I.R. related to offence exclusively triable by the Magistrate being under Section 323, I.P.C. but as the cross-case was pending before the Sessions Court the Magistrate committed the present case also to the Court of Session under the provision of Section 323, Cr. P.C. The prosecution side in this case prayed for examining some more witnesses other than those examined in the trial but the Sessions Judge held that only such witnesses who were examined before the Magistrate under Section 202, Cr. P.C. could be examined and no other witness not examined by the Magistrate already can be examined. I may quote Section 323 of the present Cr. P.C.

323. Procedure when after commencement of enquiry or trial Magistrate finds case should be committed -

If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made.

2. The crux is the interpretation of Section 202(2) proviso. The provision runs as follows:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

3. The expression 'triable exclusively by the Court of Session' finds mention in this proviso and that aspect naturally would also call for interpretation of the language. If Section 202(2) proviso as laid down above is held to be applicable then naturally that would bar examining any witness other than those examined by the Magistrate. Learned Counsel for the opposite side urged that Section 347 of the old Cr. P.C. in substance, corresponds with the provision in Section 323, Cr. P.C. (new). Learned Counsel for the other side also further relied upon two pronouncements namely, (1) Emperor v. Asghar : AIR1936All134 in which it was held that the Magistrate could not commit the accused for such trial by the Sessions Judge without completing rest of the evidence for the prosecution under Section 208, Cr. P.C. In fact in this ruling it was further observed that the commitment is to be made subject to production of defence witnesses under Section 212 of old Cr. P.C. In substance it was held in this case that the provision under Section 208 onwards of the old Cr. P.C. regarding commitment and the procedure as contained therein was to be followed. In another ease of Chhadamilal Jain v. State of U. P. : 1960CriLJ145 which is again prior to the enactment of the new Cr. P.C. that is under the old Cr. P.C., it was held that it should be clear to the accused whether the Magistrate is proceeding with the trial as such or whether he was simply holding an inquiry under Chapter XVIII of the old Cr. P.C. It was further held that as the expression 'under the provisions hereinbefore' is contained in Section 347, Cr. P.C. (old) the provisions laid down under Sections 208 to 213 of the Code should be followed and rights of the accused persons are to be safeguarded by providing him an opportunity for the defence. Both the aforesaid rulings are on the interpretation of old Cr. P.C., the provisions contained therein and in the context of the scheme in the old Cr. P.C. With the enactment of the new Cr. P.C. the entire Scheme concerning commitment has undergone a complete change. The present Cr. P.C. makes express provision regarding cases triable exclusively-by the Court of Session and cases triable exclusively by the Magistrate. In fact, cases under Cr. P.C. (new) have been categorised in two compartments, (1) exclusively triable by Court of Session and (2) exclusively triable by the Magistrate. The other vital change is that as regards Police cases a commitment can be made without examining even a single witness simply on the perusal of papers and other materials with charge-sheet. The provision for defence has also been taken away and now police challan cases can be committed on perusal of the papers alone while complaint cases exclusively triable by the Court of Session are committed after examining all the witnesses. I have laid down these features of the new Cr. P.C. to emphasise and to stress that when there are such overriding changes, naturally the pronouncements considering provisions in the new Cr. P.C, will be direct authorities on the point. In the case of Achchey Lal v. State of U.P. 1983 All Cri C 104 : 1983 All LJ 78 under the new Cr. P.C. the entire implications of the provisions of Section 323, Cr. P.C. arose for consideration and the matter of application of Section 202 also arose for consideration. The important observations are contained in paras 118 and 119 of this pronouncement. The new Cr. P.C. has been drafted in a totally new context by which a completely new scheme concerning commitment was laid down. When that is the position, I have to follow the direct authority of Achchey Lal (supra). It is direct in the sense that it is based on the consideration of the provisions of new Cr. P.C. and its Scheme, including Section 202 which is the main point for consideration in the particular case. I may also mention that as the legislature by overhauling the old Cr. P.C. was well conscious of all complications and situations that may arise whatever expression has been used must be construed to have been used in its literal sense. If the intention of the legislature was that in all complaint cases committed to the Court of Session all the witnesses for the prosecution should be necessarily examined or discharged the expression used could have been cases committed to the Court of Session instead of triable exclusively by the Court of Session. It may not have had any significance or implication before new Cr. P.C. came into force but I have already dealt with the wide changes introduced and in that context this expression has become very significant and important. Actually the amendments concerning commitment procedures were made to cut short the time devoted to such commitment proceedings. When that is the position, the position of the cases exclusively triable by the Magistrate cannot be at par with the cases exclusively triable by the Court of Session and in such context the provision of Section 202, Cr. P.C. cannot be given a wider meaning than what it expresses in the plain language and in view of plain meaning of the expression used it would appear that so far as Section 202(2), Cr. P.C. proviso is concerned regarding examination of all witnesses in a private complaint case, it has been confined to only such cases which are exclusively triable by Court of Session and does not extend to such cases which are exclusively triable by Magistrate though for different considerations committed to the Court of Session. Apart from that when the case of Achchey Lal 1983 All LJ 78 (supra) is based on new Cr. P.C. and interpretation of its provision and gives a direct ruling regarding Section 204, Cr. P.C. involving Section 202, Cr. P.C. and limiting the scope of the section to the cases which are exclusively triable by the Court of Session and which the Magistrate is bound to commit, I must follow this later view.

4. In the circumstances the application is allowed and the order of the Sessions Judge dt. 19-8-1981 is quashed and the prosecution would be free to examine all such witnesses who were named in the complaint or F.I.R. and not beyond that or list of witnesses already furnished before Magistrate.


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