1. Two questions arise for decision in these cases viz. (1) whether it is necessary to frame a formal charge in a warrant case tried summarily under the provisions of Chapter XXII of the Code of Criminal Procedure and (2) whether an accused person is entitled to re-call and re-cross-examine the prosecution witnesses as required by the provisions of Section 256, Criminal P. C.
2. On 7-8-1952, a vehicle containing about twelve maunds of wheat was intercepted by the Police while it was on its way to Delhi and three persons were prosecuted under Section 7, Essential Supplies (Temporary Powers) Act, 1946. They were tried summarily under the provisions of Chapter 22, Criminal P. C., and two of them were convicted and were awarded sentences of imprisonment. On appeal to the Sessions Court, the learned Additional Sessions Judge remanded their case for retrial on two grounds viz., (1) that a formal charge in writing had not been framed against the convicts; and (2) that the accused were not afforded an opportunity of recalling the witnesses under the provisions of Section 25G, Criminal P. C. The Delhi State Government is dissatisfied with the order of remand and has come to this Court in revision.
3. The relevant provisions are embodied in Chapter 22, Criminal P. C. Section 262 provides that, subject to certain exceptions, the procedure prescribed for summons cases shall be followed in summons cases, and the procedure prescribed for warrant cases shall be followed in warrant cases. Section 263 declares that in cases where no appeal lies, the Magistrate need not record the evidence of the witnesses or frame a formal charge; but that he shall enter certain particulars in a register maintained for the purpose. Section 264 provides that in cases where an appeal lies, the Magistrate shall record judgment embodying the substance of the evidence and the particulars mentioned in Section 263 and declares that such judgment shall be the only record in cases coming within this section.
As the express mention of one thing implies the exclusion of another, the express mention in Section 264 of the fact that the only record thereunder is a judgment containing the substance of the evidence and the particulars set out in Section 263, impliedly excludes the necessity for recording the evidence of witnesses or the framing of a formal charge even when a warrant case is tried under the provisions of this Chapter. I am supported in this view by the decisions reported as -- 'Madhab Chandra Saha v. Emperor', AIR 1926 Cal 1202 (A); -- 'King Emperor v. Maung Po Saw', AIR 1935 Rang 108 (B); -- 'Emperor v. Salig Ram', AIR 1926 Lah 301 (C) and -- 'Siri Lal Ram v. The Crown', AIR 1950 EP 268 (D). The answer to the first question propounded at the commencement of this judgment is thus clearly in the negative.
4. The second question is whether an accused person is entitled as of right to recall and re-cross-examine the prosecution witnesses under the provisions of Section 256, Criminal P. C. The learned counsel for the State contends that if it is not necessary to frame a formal charge in a case tried under the provisions of Chapter 22, the provisions of Section 256 which presuppose the existence of a formal charge do not apply. My attention has been invited to the observations of Madgavkar, J. in -- 'Umaji Krishnaji v. Emperor, AIR 1926 Bom 226 (E), in which the learned Judges observed as follows:
'The charge gives clear notice of the mind of the Court prima Jacie on the materials as they exist; and in case the charge suggests to the defence any other witnesses or any further questions, that right is given. Where there is no such charge the defence has no other materials than it already possessed and the need to recall witnesses does not exist.'
5. The contention put forward by the learned counsel is, in my opinion, wholly untenable. It may be that the law does not require a formal charge to be framed, but Section 263 clearly requires the Court to record the plea of the accused and this plea can obviously be recorded only if the accused is informed of the allegations which have been made against him and the offence which he is alleged to have committed. If he puts forward the plea of not guilty, he must be asked to state whether he would like the prosecution witnesses who have already been examined to be recalled under Section 256 and to be re-cross-examined. The right to recall and to re-cross-examine witnesses is a most valuable right and must be fully preserved, for the law declares that the procedure prescribed for warrant cases must be followed in warrant cases tried under the provisions of Chapter 22. The observations of Madgavkar, J. in the case referred to above, are scarcely relevant for, these observations were made in a case in which no appeal was competent. The question must, therefore, be answered in the affirmative.
6. For these reasons, I would uphold the order of the Court below and dismiss the petitions.