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State of Kerala Vs. Varghese Vaidyan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Ref. Nos. 21 and 22 of 1957, 13 of 1958, 2 and 12 of 1959 and Criminal Revn. Petn. No. 72 o
Judge
Reported inAIR1961Ker1; 1961CriLJ63
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 207A(4), 207A(6) and 207A(7)
AppellantState of Kerala
RespondentVarghese Vaidyan and ors.
Appellant AdvocatePublic Prosecutor
Respondent Advocate M. Bhaskara Menon and; M. Sukumara Menon, Advs. in Crl. Ref. No. 22 of 1957, T.N. Subramonia Iyer, Ad
Cases ReferredIn Arunachalam v. Bombay State
Excerpt:
criminal - examination of witnesses - sections 207a(4), 207a(6) and 207a(7) of criminal procedure code, 1898 - examination of prosecution witnesses by magistrate prior to committal of case - magistrate not bound to examine prosecution witnesses at such stage - examination to be made in case required in interest of justice - magistrate has to decide whether accused to be committed or not in light of other material referred in section 207a (6) and 207a (7) if magistrate decided to dispense with examination. - - 21/57 is by the session judge at alleppey and he has recommended under section 438 of the code of criminal procedure that the committal order which is the basis of sessions case no. 2/59 wherein the sessions judge alleppey has recommended that the committal order in p. 5/58 on.....sankaran, c.j.1. the question of law raised in the first 5 references and in the next revision petition is practically the same and hence all of them were heard together. they are also disposed of by the present common order.2. criminal reference no. 21/57 is by the session judge at alleppey and he has recommended under section 438 of the code of criminal procedure that the committal order which is the basis of sessions case no. 32/56 on the file of his court may be quashed since it is an illegal order passed in violation of the mandatory provisions contained in clause (4) of section 207a of the code of criminal procedure. the ground of illegality is stated to be that the magistrate who committed the accused to stand their trial in the sessions court, has passed the order of committal.....
Judgment:

Sankaran, C.J.

1. The question of law raised in the first 5 references and in the next revision petition is practically the same and hence all of them were heard together. They are also disposed of by the present common order.

2. Criminal Reference No. 21/57 is by the Session Judge at Alleppey and he has recommended under Section 438 of the Code of Criminal Procedure that the committal order which is the basis of Sessions Case No. 32/56 on the file of his Court may be quashed since it is an illegal order passed in violation of the mandatory provisions contained in Clause (4) of Section 207A of the Code of Criminal Procedure. The ground of illegality is stated to be that the Magistrate who committed the accused to stand their trial in the Sessions Court, has passed the order of committal without examining all the witnesses mentioned in the charge-sheet filed by the police as witnesses to the actual commission of the alleged offence.

In Crl. Ref. No. 22/57 also a similar recommendation has been made by the same Judge in respect of the committal order which is the basis of Sessions Case No. 42/57 on the file of the same Court. There also the defect pointed out is that before passing the committal order, all the witnesses to the actual commission of the offence were not examined. In Crl. Ref. No. 13/58 also an identical recommendation has been made on the identical ground by the Sessions Judge at Ernakulam in respect of the committal order which is the basis of Sessions Case No. 14/58 on the file of the Ernakulam Sessions Court.

The position is the same in respect of Crl. Ref. No. 2/59 wherein the Sessions Judge Alleppey has recommended that the committal order in P. E. No. 5/58 on the file of the First Class Magistrate at Sherthallai may be quashed for the reason that the Magistrate has failed to examine all the witnesses to the actual commission of the offence. In respect of the committal order in P. E. No. 1/59 on the file of the Second Class Magistrate at Karthikapally and which is the basis of Sessions Case No. 24/59 on the file of the Sessions Court at Alleppy, a similar defect has been pointed out by the learned Sessions Judge and he has in Crl. Ref. No. 12/59 recommended that the committal order may be quashed.

3. Criminal Revision Petition No. 72/58 has been filed on behalf of the second accused in P. E. Case No. 1/58 on the file of the Sub-Divisional Magistrate's Court at Chengannur. In that case there are no witnesses to the actual commission of the alleged offence. But the case depended entirely on circumstantial evidence. The charge against the first accused is that he committed the offence of murder punishable under Section 302, I. P. C., by shooting and killing his wife with a revolver. The charge against the second accused, who is the father of the first accused, is that, with the intention of screening the first accused from legal punishment, he did this to cause disappearance of evidence about the commission of the offence of murder and also deliberately gave false information to the police to mislead them.

The learned Magistrate committed both the accused to the Sessions Court to stand their trial for the respective offences alleged against each of them. The committal order was passed without examining any witness, but after consideration of all the documents which had been placed before the Court and copies of which were also given to the accused, and after hearing the prosecution and the defence. The legality of the committal order thus passed without examining any witness, is challenged in the revision petition and the order is sought to be set aside.

4. The main question for decision in all these cases is whether an order committing the accused to stand trial before a Court of Session or the High Court, as the case may be, for offences triable exclusively by such Courts, can be said to be illegal for the reason that all the witnesses to the actual commission of the offence alleged were not examined before passing the order of committal. On this question there is a sharp divergence of judicial opinion among the different High Courts of India. It is because of such a conflict of judicial opinion regarding this matter that it has been ordered to be placed before a Full Bench for an authoritative pronouncement.

5. The answer to the question raised in these cases depends mainly on the construction of Clause (4) of Section 207A of the Code of Criminal Procedure. This section was introduced in the Code by the Amending Act, 26 of 1955, which came into force on 1-1-1956. Prior to the introduction of Section 207A, there was no distinction in the proceedings relating to the preliminary inquiry in cases initiated on a police report and in cases initiated on a private complaint. The procedure to be followed in respect of preliminary inquiries in case falling under both these categories was that indicated in Ss. 208 to 213 of the Code. The legislature appears to have thought that such an elaborate procedure causes undue delay in the trial of cases involving the commission of grave offences.

It was also felt that when such cases are instituted on a police report, the trial must be speeded upand that the proceedings leading up to the commencement of the trial should be simplified to such an extent as to achieve the utmost expedition possible without causing any serious prejudice to the prosecution or to the defence. It was with this object that Section 207A was enacted. This section prescribes a special procedure to be followed in respect of preliminary enquiries initiated OH a police report and the procedure thus laid down has made radical changes from the procedure prescribed under Ss. 208 to 213 governing preliminary enquiries in cases initiated on private complaints. The constitutionality of the special provisions contained in Section 207 A of the Code governing preliminary enquiries in cases initiated on police reports, came up for the consideration of the Supreme Court in Hanumantha Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 927. The decision in that case was as follows :

'There could not be the least doubt that the legislature has provided for a clear classification between the two kinds of proceedings at the commitment stage based upon a very relevant consideration, namely, whether or not there has been a previous inquiry by a responsible public servant whose duty it is to discover crime and to bring criminals to speedy justice. This basis of classification is clearly connected with the underlying principle of administration of justice that an alleged criminal should be placed on his trial as soon after the commission of the crime as circumstances of the case would permit. This classification cannot be said to be unreasonable and not to have any relation to the subject of the legislation, namely, a more speedy trial of offences without any avoidable delay.'

The provisions contained in Section 207A were accordingly held to be constitutional.

6. The object and the intention of the legislature in enacting Section 207A has to be kept in view in construing that section. We are particularly concerned with the construction to be put upon Clause (4) of that section. If the expressions used in that clause are capable of a construction which is in keeping with the object and intention of the legislature in enacting that clause, such a construction has to be preferred to any other possible construction which may result in defeating the intention of the legislature. The preliminaries to be satisfied before the actual commencement of the enquiry as contemplated by Section 207A are those specified in Clauses (1) to (3) of that section. Clause (3) states that

'at the commencement of the enquiry the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in S. 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.'

After this condition is satisfied, the Magistrate has to proceed in the manner prescribed by Clause (4) which runs as follows:

'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 prosecution, he may take such evidence also.'

There is no doubt or ambiguity in the clause as it stands. The first portion of the clause clearly indicates that the prosecution is not obliged to produce all the witnesses to the actual commission of the offence alleged, for examination at the stage of the preliminary enquiry. On the other hand, the prosecution is given a discretion to choose some of these witnesses and produce them for examination so as to make out a prima facie case against the accused. The expression 'as may be produced by the prosecution is clearly indicative of such a discretion and it cannot refer to all the witnesses to the actual commission of the offence alleged. Such an expression will be inconsistent and irreconcilable with an obligation to produce all the, witnesses to the actual commission of the offence.

In State v. Govindan Thampi, 1956 Ker LT 550 : (S) AIR 1957 Trav. Co. 29, the aforesaid expression is seen to have been construed in a different manner. There it was held that the word 'may' occurring in the expression does not entitle the prosecution to exercise any discretion and that the word must be taken to have been used in the sense of 'shall'. The same view was taken in State v. Ramratan, (S) AIR 1957 Madh. B. 7 where it was held that the word 'may' in the first part of Clause (4) of Section 207A should be construed as 'shall'. Construing the clause in that manner, it was held that the prosecution is bound to produce all the witnesses to the actual commission of the offence and that the committing Magistrate is bound to record the evidence of all these witnesses.

The same question arose for consideration in State v. Birda, (S) AIR 1957 Raj 318. In that case the view that the word 'may' used in the first part of Clause (4) of Section 207A should be given the meaning 'shall', was not fully endorsed. It was however held that the prosecution is bound to produce all the witnesses to the actual commission of the offence and examine them even at the stage of preliminary enquiry. In State of Kerala v. Mathai, 1959 Ker LT 409 : 1959 Ker LJ 454 also the view taken was that the provision contained in Clause (4) of Section 207A is mandatory and that the Magistrate has no discretion to dispense with the examination of eye-witnesses. With respect, we have to state that we are unable to subscribe to the view taken in the above-mentioned cases. The words 'may' and 'shall' occur in the several clauses of Section 207A.

These two words occur in Clause (4) itself. Where a mandate is intended, the legislature has taken care to use the word 'shall' and where there is no such intention, the word 'may'' is seen to have been used. Where these words are seen to have been thus deliberately used under different contexts in the same section, it will be improper and unjustified to hold that the legislature inadvertently used the word 'may' in the first part of Clause (4) even though a mandate was intended to be conveyed by that word. It has also to be pointed out that the substitution of the word 'may' in the first part of Clause (4) will not properly fit in in that clause and it will not also sound well. When the word 'may' is substituted by the word 'shall', the relevant portion of the clause will have to be read as follows :

'Such persons, if any, as shall be produced by the prosecution.'

It is difficult to conceive that the legislature reallyintended to introduce such a clumsy expression inthis particular clause. If the clause is read with theword 'may' as occurring in the clause, the whole'expression sounds' well and it conveys the idea of a'discretion obviously intended to be conveyed bythe words 'such persons, if any, as may be produced.' We are, therefore, definitely of the view thatthe word 'may' as occurring in the first part ofClause (4) cannot be read and understood as conveyingthe idea underlying the word 'shall'.

7. If Clause (4) of Section 207A is to be understood as conveying a mandate to the prosecution that all witnesses to the actual commission of the offence should be produced and examined at the stage of preliminary enquiry by the Magistrate, there will practically be no difference between this clause and Clause (1) of Section 208. As already stated, Section 208 deals with the procedure to be followed in a preliminary enquiry in respect of a case initiated On a private complaint. Clause (1) of that section states that a Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. The object of prescribing a different procedure under Clause (4) of Section 207A was to simplify and cut short the proceedings in the preliminary enquiry in a case initiated on the police report.

The legislature did not want the trial of such a case to be a mere repetition of the preliminary enquiry. At the trial stage the prosecution has to adduce all the evidence that is deemed necessary to conclusively establish the guilt o[ the accused. But at the stage of the preliminary enquiry the prosecution need make out only a prima facie case to justify the passing of an order by a Magistrate committing the accused to stand his trial before the Sessions Court or the High Court, as the case may be. It cannot, therefore, be said that the legislature intended the examination of all the witnesses to the actual commission of the offence even at the stage of the preliminary enquiry. Even in respect of a regular trial, there is no rigid rule that all such witnesses should be examined by the prosecution. If there are a large number of witnesses who could speak to the actual commission of the offence, it will be sufficient to examine a reasonable number of such witnesses to conclusively make out the case against the accused.

To examine a large number of witnesses to speak to the same fact would be a mere waste of public time. All that the prosecution should be careful about is that it should not give any room for a legitimate complaint that the evidence of any material witness has been suppressed or withheld from the Court. Subject to this limitation the prosecution has the discretion to limit the number of witnesses to be examined even at the stage of trial. It cannot be said that the prosecution has no such discretion in limiting the number of witnesses to be produced at the stage of the preliminary enquiry. While conferring a discretion on the prosecution to produce only a few of the witnesses to the actual commission of the offence for examination at the stage of preliminary enquiry for the purpose of making out a prima facie case against the accused, the legislature has taken sufficient care to make adequate safeguards in Clause (4) itself to see that the discretion is not misused by the prosecution to the prejudice of the accused. Under that clause, the Magistrate is bound to examine such of the witnesses as may be produced by the prosecution. At the same time, a discretion is vested in the Magistrate to examine anyone or more of the remaining witnesses for the prosecution if the Magistrate is of opinion that it is necessary in the interests of justice to take such additional evidence also. Notes of evidence taken from the witnesses questioned by the police at the stage of the investigation are available to the Magistrate. Copies of these notes are supplied to the accused also under Clause (3) of Section 207A. From these notes and other documents available to the Magistrate, it will be easy for him to know, if there is any material piece of evidence deserving to be brought to light at the stage of the preliminary enquiry. Power is conferred on the Magistrate to order for the production of such evidence also and as such the summary procedure prescribed by Clause (4) of Section 207A is not likely to cause any prejudice to the accused.

8. The decisions cited above proceeded on the assumption that the witnesses who may be examined at the instance of the Magistrate are only witnesses other than the witnesses to the actual commission of the offence. Such an assumption had to be made in those cases because of the construction put upon the first part of Clause (4) that it makes it obligatory on the part of the prosecution to produce all the witnesses to the actual commission of the offence. We have already pointed out that this construction is incorrect and unsustainable and that under the first part of Clause (4), the prosecution has a discretion to produce some only of the witnesses to the actual commission of the offence. The Magistrate is obliged to examine all the witnesses thus produced by the prosecution.

But then he has the unfettered discretion to examine one or more of the remaining witnesses if he 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. These other witnesses will necessarily include such of the witnesses to the actual commission of the offence who have not been produced by the prosecution and also, the witnesses who are to give circumstantial evidence. The witnesses under both these categories are witnesses for the prosecution and the discretionary power conferred on the Magistrate is the power to examine one or more of such witnesses. There is no justification for holding that this power is confined to the examination of witnesses other than the witnesses to the actual commission of the offence and that it does not extend to the examination of the witnesses to the actual commission of the offence.

The power can be exercised in respect of all the witnesses falling under both the categories excluding those who have been produced by the prosecution. This view regarding the proper construction to bo put upon Clause (4) of Section 207A and the real scope of that clause finds support from the cases noted below: Manik Chand v. The State, AIR 1958 Cal 324. Krishna v. Mysore State, (S) AIR 1957 Mys 5, State v. Yasin. AIR 1958 All 861, State v. Dhirailal Manilal, 59 Bom LR 645, In re Thirumal Thewar, AIR1958 Mad 135, Champabai v. The State AIR 1958 Madh Pra 280 and State of U. P. v. Satyavir, AIR 1959 All 408. The real scope of Clause (4) of Section 207A has been fully discussed in AIR 1958 Cal 324 and in 59 Bom LR 645 and we are in respectful agreement with the conclusion reached in those two cases regarding the scope of that clause.

It follows from what has been explained above that there cannot be any illegality in an order of committal passed by the Magistrate after examining some only of the witnesses to the actual commission of the offence. The prosecution must be deemed to have complied with Clause (4) of Section 207A, by producing some only of such witnesses for examination at the stage of the preliminary enquiry. If on a consideration of the evidence of the witnesses thus produced and examined and also on a consideration of the documents referred to in Section 173, and after giving the accused an opportunity to explain any circumstances appearing in the evidence against him and after hearing the prosecution and the defence, the Magistrate is satisfied that there are sufficient grounds for committing the accused person for trial, the Magistrate has to pass an order committing the accused. Such an order will be perfectly legal and sustainable. These tests are satisfied by the committal orders which are sought to be quashed in the series of references under consideration. Since these committal orders are found to be legal and valid, the references are only to be rejected and the sessions trial based on such committal orders directed to be proceeded with.

9. Then there is the question of the legality of a committal order passed without examining any witness in a case where there is no witnesses to the actual commission of the offence and where the prosecution depends entirely upon circumstantial evidence. Under Clause (4) of Section 207A the examination of witnesses is made obligatory only in cases where there are witnesses to the actual commission of the offence. In such a case the prosecution may produce some of the witnesses to the actual commission of the offence and the Magistrate is bound to examine them. The clause does not state that in a case depending entirely upon circumstantial evidence, the prosecution is bound to produce and examine any witness at the stage of the preliminary enquiry.

The question depends wholly on the discretionary power conferred on the Magistrate under that clause to decide whether it is necessary in the interests of justice to examine one or more of the witnesses for the prosecution in such a case. If the Magistrate, in the exercise of his judicial discretion, comes to the conclusion that it is not necessary, in the interests of justice, to take the evidence of any of these witnesses, there is no legal impediment in his way to proceed to consider whether there are grounds to justify an order for committing the accused for trial. If the Magistrate, in the exercise of his discretion, is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the witnesses for the prosecution before proceeding to pass orders under Clauses (6) and (7) it will be the duty of the Magistrate to examine those witnesses also, so that their evidence may also be available to him for consideration under Clauses (6) and (7). Clause (6) of Section 207A enumerates the matters to be taken into consideration by the Magistrate in coming to a conclusion whether the accused has to be committed for trial or whether he has only to be discharged.

That clause states that the Magistrate has to consider the evidence referred to in Clause (4) and all the documents referred to in Section 173 and also the explanation offered by the accused in respect of the circumstances appearing against him. He has also to hear the prosecution and the accused before forming a conclusion as contemplated by Clause (6). It on a due consideration of all these matters, the Magistrate comes to the conclusion that the evidence and the documents already referred to disclose no grounds for committing the accused for trial the Magistrate shall record his reasons and pass an order discharging the accused, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

Clause (7) states that, if on a consideration of the evidence and documents already referred to and after examining the accused and hearing the prosecution and the accused, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand declaring with what offence the accused is charged and thus commit the accused for trial. The obligation of considering the evidence referred to in Clauses (6) and (7) can arise only in cases where evidence has been recorded under Clause (4). This position is made clear by the opening portion of Clause (6) which begins as follows: 'When the evidence referred to in Sub-section (4) has been taken'.

It has already been pointed out that the question of recording evidence under Sub-section (4) will arise only under two contingencies. The first contingency will arise in cases in which there are witnesses to the actual commission of the offence. In such cases the prosecution will have to produce some of those witnesses and the Magistrate will have to record the evidence of those witnesses. In a case where there is no witness to the actual commission of the offence, the prosecution is not under an obligation to produce and examine any witnesses at the stage of preliminary enquiry. The second contingency may arise in cases where the Magistrate, in the exercise of his discretion, comes to the conclusion that it is necessary in the interests of justice to take the evidence of any one or more of the witnesses for the prosecution.

In such a contingency also there will be the evidence of the witnesses examined under the orders of the Magistrate. But if the conclusion reached by the Magistrate on a due exercise of his discretion is that it is not necessary in the interests of justice to examine any witness at that stage, there will be no evidence recorded under Clause (4). If no evidence has been recorded under the two categories falling under Clause (4), the question of considering such evidence under Clauses (6) and (7) will not arise at all. The Magistrate will then be obliged to consider the documents referred to in Section 173 and to hear the prosecution and the accused and then come to the conclusion whether there are grounds for committing the accused for trial.

If he is satisfied that there are sufficient grounds for committing the accused, he may pass an order to that effect; and otherwise he may discharge the accused. In either case, the Magistrate will be acting strictly in accordance with, the provisions contained in Clauses (4) to (7) and there will be no illegality in the order passed by him. The provisions contained in Clauses (2) and (3) of Section 251A may also be referred to in this connection. That section deals with the procedure relating to the trial of warrant cases by the Magistrates. Clause (2) states that:

'If, upon a consideration of all documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused.'

Clause (3) of the same section states that:

'If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.'

If a charge framed under this clause could be sustained as legal and valid even though the charge was framed without recording the evidence of any of the witnesses for the prosecution, there is no reason why the committal order passed under Clause (7) of Section 207A should be viewed differently. There also a charge is framed against the accused and he is ordered to stand his trial for the offence mentioned in the charge, the only difference being that the trial takes place in the Sessions Court or the High Court, as the case may be. Thus it is clear that the non-examination of any of the witnesses at the pre-trial stage cannot by itself go against the legality and the validity of the order of committal.

10. The question whether in a case depending solely on circumstantial evidence, a committal order could be passed by a Magistrate without examining any of the witnesses for the prosecution, came up for the consideration of the Mysore High Court in (S) AIR 1957 Mys 5. In that case the question was answered as follows :

'The evidence contemplated in the first part of Section 207A (4) is the evidence of witnesses to the actual commission of the offence alleged. So what is obligatory on the Magistrate is the recording of the evidence of the witnesses to the actual occurrence, and if there are no witnesses to speak to the actual commission of the offence, the Magistrate is not hound to examine any other witness or witnesses. Therefore there is nothing illegal, in committing the accused to the Court of Session solely on the basis of documents referred to in Section 173, when on the side of the prosecution there is no evidence as to the actual commission of the offence.'

The same question was considered by the Bombay High Court in 59 Bom LR 645, at p. 651. There it was pointed out that the consideration of the evidence referred to in Clause (4) of Section 207A can arise only in cases where the evidence contemplated by that clause has been actually recorded. The position was further explained as follows:

'Where, however, the prosecution does not produce before the Magistrate at the enquiry stage any person or persons as witness or witnesses to the actual commission of the offence alleged, no question arises of the Magistrate taking the evidence of such person or persons and where such evidence does not exist, no question can arise of the Magistrate taking into consideration that evidence for the purpose of committing the accused to the Court of Session.'

In Arunachalam v. Bombay State, (S) AIR 1936 Bom 695 also the same question came up for consideration. The legality and the propriety of making use of the documents referred to in Section 173 of the Code ay the basis for a committal order had also been raised in that case. Under Clause (3) of Section 207A, the Magistrate is bound to see that all the documents referred to in Section 173 are furnished to the accused before the preliminary enquiry is commenced. Clause (4) of Section 173 is of particular significance in this connection and that clause runs as follows :

'After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the enquiry or trial furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.'

A contention was raised in the Bombay case that the statements made by the witnesses to the police and recorded under Section 161(3) cannot be used for any purpose except for the limited purpose mentioned in the Proviso to Section 162(1) and that limited purpose is the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act. It was also argued that if the Magistrates were to consider these statements under Section 207A (6), then the policy of law would be defeated and the Magistrates would be making use of statements which the law has been always anxious not to have treated as evidence in the case. Chagla, C.J., repelled all these contentions and observed as follows :

'In the first place, under Section 207A (3) the statements of witnesses recorded by the police under Section 161(3) do not become evidence. The Magistrate only considers them for the purpose of either discharging the accused or passing the order of committal. It is further quite obvious that the reason why the Magistrate has got to consider the statements, is in the interests of the accused himself'.

'The legislature did not want the Magistrate to commit the accused merely on the oral testimony of witnesses produced by the prosecution. The legislature wanted the Magistrate to test that evidence in the light of what these very witnesses had stated to the police earlier and nearer the point of time when the offence was committed and if the Magistrate on considering those statements felt that the oral evidence given by the witnesses was untrustworthy and unreliable, it could be open to the Magistrate to discard or disregard the oral evidence and to discharge the accused.

Therefore, in our opinion, the policy of the law with regard to these statements, is in no way being defeated by the Magistrate being asked to consider these statements. But apart from the question of policy, when we look at the strict language of Section 162 itself the prohibition with regard to these statements is qualified by the language, used by the legislature 'save as hereinafter provided' and the rather curious contention put forward by Mr. Kavelkar is that that exception is only to be found in the proviso to Section 162(1) and not to any of the provisos of the Code. It is impossible to accept that contention. 'Hereinafter' may be either in the latter part of the section or anywhere else in the Code.

The legislature has not stated that the exception must be hereinafter in the section, and if there is an exception provided in Section 207A, that is an exception which is hereinafter Provided in relation to Section 162. We do not understand why the exception provided in Section 207A(6) should be disregarded or overlooked.

In any case, our duty is to reconcile Section 162(1) with Section 207A (6) and there cannot be the slightest doubt that whatever the legislature might have provided in Section 162(1) it was the clear intention of the legislature that the Magistrate must look at these statements and consider them for the purpose of passing his commitment order under Section 207A. If that was the clear intention of the legislature, it could not be said that the legislature did not wish to constitute that as an exception to Section 162'.

We are in respectful agreement with the view expressed in the above passage. Consideration oi the statements recorded under Clause (3) of Section 161 for the purpose of coming to a conclusion under Clauses (6) and (7) of Section 207A, is not the same thing as using such statements as evidence at the trial of the case. At the trial stage, these statements cannot be put forward as evidence. But the position is entirely different at the stage of preliminary enquiry where the Magistrate is entitled to follow the summary procedure prescribed by law for ascertaining whether the materials placed before him arc sufficient to make out a prima facie case against the accused so as to justify an order committing the accused for trial. As that stage the statements recorded under Clause (3) of Section 161 can also he looked into by the Magistrate even though it cannot be said that he is accepting the same as evidence in the case. As already pointed out, consideration of these statements is permitted by Clauses (2) and (3) of Section 251A applicable to the trial of warrant cases.

There also the statements recorded under Clause (31 of Section 161 which form part of the documents referred to in Section 173 arc allowed to be looked into and considered for the purpose of forming an opinion as to whether there are justifiable grounds to frame a charge against the accused and to put him on his trial. The question whether the aforesaid statements can he used as legal evidence will arise only at the trial stage. In the same manner the question whether such statement can be admitted in evidence will arise at the stage of the trial in the Court of the Session or the High Court in cases committed to such Courts by the Magistrate holding the preliminary enquiry.

At the stage of the preliminary enquiry the statements recorded under Clause (3) of Section 161 can also be looked into and considered under Clauses (6) and (7) of Section 207A. Thus even in the absence of oral evidence an order of committal could be passed on a consideration of the other materials referred to in Clauses (6) and (7) of Section 207A. The same question has been considered by the Supreme Court in (S) AIR 1957 SC 927 where the position has been explained in the following passage in paragraph 5 of the judgment :

'At the commencement of the inquiry before the Magistrate, when the accused appears before him, the Magistrate has to satisfy himself that the documents referred to in Section 173 have been furnished to the accused and to have them furnished if the Police Officer has not done his duty. The Magistrate then has to record the evidence of such witnesses as figure as eye-witnesses to the occurrence and are produced before him.

He has also the power, in the interests of justice, to record such other evidence of the prosecution as he may think necessary, but he is not obliged to record any evidence. Without recording any evidence but after considering all the documents referred to in Section 173 and after examining the accused person and after hearing the parties, it is open to the Magistrate to discharge the accused person after recording his reasons that no ground for committing the accused for trial has been made out, unless he decides to try the accused himself or to send him for trial by another Magistrate.

If on the other hand, he finds that the accused should be committed for trial, he is required to frame a charge disclosing the offence with which the accused is charged. The accused is then required to submit a list of persons whom he wishes to be summoned to give evidence at his trial. After all this, the case is placed before the Court of Session or the High Court for trial in accordance with the procedure laid down by the Code'.

11. From the foregoing discussion it is clear that in a case depending entirely on circumstantial evidence, the Magistrate conducting the preliminary enquiry is not bound by any provision of law to record the evidence of the prosecution witnesses. No doubt he has to exercise the discretion vested in him under Clause (4) of Section 207A and to form an opinion whether it is necessary in the interests of justice to examine any of the witnesses for the prosecution before coming to a conclusion whether there are grounds for committing the accused for trial. If his opinion is that such examination is necessary, he is bound to give effect to that opinion.

If, after a due exercise of his discretion, he comes to the conclusion that the interests of justice will not suffer by the non-examination of any of the prosecution witnesses at the stage of preliminary enquiry, he will be free to consider the question whether the accused should be committed or not, in the light of the other materials referred to in Clauses (6) and (7) of Section 207A. Any interference with the order of commitment passed by the Magistrate withoutexamining any of the prosecution witnesses in a case where there is no witness to the actual commission of the offence, will be justified only where it is apparent from the records that the Magistrate has passed the order without complying with the requirements of Clause (4) of Section 207A and without exercising the discretion vested in him under that clause. Otherwise, the committal order has to be accepted as legal and proper.

12. On an examination of the committal order which has given rise to Crl. R. P. 72/58, we are not satisfied that there is any illegality vitiating that order or that there is any proper ground to invoke the revisional jurisdiction of this Court.

13. In the result the point raised in Crl. Ref. Nos. 21/57, 22/57, 13/58, 2/59 and 12/59 is answered in the negative and the references are accordingly rejected. Criminal Revision Petition 72/ 1958 is also dismissed.

Joseph, J.

16. I was a party to the decisionin (S) AIR 1957 Trav-Co 29, where a different viewwas taken but in the light of the later decisions andfurther arguments addressed, I agree to the orderproposed by my Lord the Chief Justice.


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