1. This reference raises an important question of law on which there is a divergence of opinion amongst the High Courts in India. The applicant Narotamdas Shah was prosecuted for defamation under Section 500, Penal Code, in the Court of the First Class Magistrate, Junagadh. After some prosecution witnesses were examined the Magistrate was transferred and was succeeded by another Magistrate, and the accused having then demanded that the witnesses be resummoned and reheard, the learned Magistrate held that under Clause (a) of the proviso to Section 350(1), Criminal P.C., an accused person can demand resummoning of witnesses as a matter of right in a trial and not in an enquiry, and that the case against the accused was only at the stage of an enquiry inasmuch as the charge had not been framed, and he, therefore, refused to resummon the witnesses. The accused having applied in revision, the Sessions Judge was of the opinion that the Magistrate's order was not correct and he made the reference in view of the difference of Judicial opinion on the point.
2. The question turns entirely on the construction of Section 350, Criminal P.C., the point being when, in a warrant case, the trial commences that is whether it commences as soon as the accused appears or is brought before the Magistrate and the Magistrate proceeds to hear the case, or whether it commences only after the charge is framed. Now under Section 350(1) the succeeding Magistrate has a discretion either to act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or to resummon the witnesses and recommence the enquiry or trial. The Magistrate can exercise this discretion either in an enquiry or in a trial, but the accused can demand the resummoning of witnesses and rehearing them only in a trial. Therefore so far as trial is concerned, the exercise of the Magistrate's discretion is subject to the abovesaid right of the accused. The Magistrate's discretion is further subject to Clause (b) of the proviso under which the High Court or the District Magistrate, as the case may be, may set aside the conviction passed on evidence not wholly recorded by the succeeding Magistrate, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new enquiry or trial. This right of the High Court and the District Magistrate, it may be noticed, is both as to enquiry and trial.
Now the Criminal Procedure Code contemplates proceedings which are purely an enquiry and those which are a trial and it has observed this distinction at various places in the Code. 'Inquiry' is defined in Section 4(k) as including every inquiry other than a trial conducted under this Code by a Magistrate or a Court. A trial is not defined in the Code. A proceeding under Chapter 8 is an 'inquiry' - Charan Mahto v. Emperor AIR 1930 Pat 274 (A). Chapters 12 and 18 of the Code also relate to inquiry, the former being in respect of disputes as to immovable property & the latter in respect of cases triable by the Court of Sessions. Chapter 20 deals with the trial of summons cases, Chapter 21 with the trial of warrant cases and Chapter 22 with summary trials, so that the proceedings relating to summons cases, warrant cases and offences triable summarily are designated as trials by the Code itself. Section 251 of Chapter 21, which is relevant, says that the following procedure shall be observed in the trial of warrant cases. Section 252 provides that when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. Under Section 253 the Magistrate shall discharge the accused if, upon taking all the evidence and examining the accused, he finds that no case has been made out which, if unrebutted, would warrant a conviction. If the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge against the accused, and if the accused pleads guilty to the charge, the Magistrate may, in his discretion, convict him thereon. Section 256 prescribes the procedure where the accused refuses to plead or does not plead or claims to be tried, and if the accused wishes to cross-examine any of the prosecution witnesses, the witnesses shall be recalled and cross-examined and re-examined if necessary.
These are in the main the important provisions of Chapter 21. However there is nothing in the Chapter to suggest that the proceedings in a warrant case are an enquiry upto a certain stage, viz., the stage of framing a charge, and that after the charge is framed they assume the role of a trial, and a distinction of this kind is not warranted by the provisions of the Chapter. The heading of the Chapter also speaks of the trial of warrant cases, and a comparison between it and the heading of Chapter 18, which is 'inquiry into cases triable by the Court of Sessions or High Court', indicates that the proceedings in a warrant case are of the character of a trial, and not an inquiry. Section 252 indicates that the trial begins as soon as the accused appears or is brought before the Magistrate and the Magistrate proceeds to hear the evidence. Simply because the Magistrate may not frame a charge and discharge the accused, it will not mean that the proceedings till that stage are a mere inquiry. Discharge is a valuable right and it is only fair to the accused that the succeeding Magistrate should hear all the evidence himself and judge whether it was sufficient for framing a, charge against the accused. It is another matter when the accused does not demand the resummoning and rehearing of witnesses, and in that case the Magistrate may proceed to frame a charge on evidence heard by his predecessor or partly heard by his predecessor and partly heard by himself. No doubt stress has been laid down in some of the reported decisions on the provisions of Section 256 in support of the view that the proceedings become a trial when the accused claims to be tried, but the words 'claims to be tried' ought to be read in the context in which they appear. On a charge being read and explained to the accused the accused either pleads guilty or refuses to plead or does not plead or claims to be tried, and it should not make any difference to the proceedings because the accused claims to be tried. That is only part of the trial which has commenced already. Again it may be noticed that this right which Section 256 gives to the accused is to further cross-examine the witnesses, which is not the same as examining them de novo, which latter right is conferred on him by Clause (a) of the proviso to Section 350(1).
3. Chapter 24, in which Section 350 occurs, contains general provisions as to inquiries and trials, and they apply in accordance with whether the proceedings are an inquiry or a trial. These provisions draw a clear distinction between proceedings which are an 'inquiry' and those which are a 'trial', and I do not think they warrant the inference that a proceeding may have the character of an inquiry upto a certain stage and then acquire the character of a trial. As stated in Section 350 itself, the succeeding Magistrate may either act on the evidence already recorded by his predecessor and record further evidence himself or he may commence a fresh 'inquiry' by resummoning the witnesses. If he decides to take the latter course, he recommences; and this recommencing can take place at any stage. This is true also in the case of a trial. Therefore if he can recommence the trial, which may take place at any stage, there is no reason why the accused cannot demand the resummoning and rehearing of witnesses at any stage. Tile word 'trial' in Clause (a) of the proviso, read in the context of the words inquiry or trial occurring in Section 351(1), is used in contradistinction to an inquiry and it only means that where there is a trial, as distinguished from an inquiry provided for in certain Chapters of the Criminal Procedure Code, the right is of the accused to ask for resummoning the witnesses and re-hearing them. The Magistrate's discretion is subject to this right of the accused, but that is only where the proceeding is a trial and not where they are mere inquiries under the Code as for instance in Chapter 12 or 18 of the Code. This proceeding may commence before the second Magistrate at any stage and as soon as they commence the accused is to exercise his right. Clause (a) does not limit that right to a proceeding before the second Magistrate, where it commences after the framing of a charge. Therefore reading Section 350(1) and the proviso together it appears to me clear that the expression 'in any trial' means in a 'trial' contemplated by the Code such as for instance a trial in a summons, case, in a warrant case and in cases of offences tried summarily, as distinguished from, mere 'inquiry'.
4. Now in the Criminal Procedure Code of 1872 an 'inquiry' was defined as follows:
Inquiry includes any inquiry which may be conducted by a Magistrate or Court under the Act.
Trial was defined thus:
Trial means the proceedings taken in Court after a charge had been drawn up and Includes the punishment of the offender. It includes the proceedings under Chapters XVI and XVIII from the time when the accused appears in Court.
Chapters 16 and 18 of the said Code dealt with summons cases and summary trials respectively. In the Code of 1882 the definition of trial was omitted and inquiry was defined thus:
Inquiry includes every inquiry conducted under this Code by a Magistrate or a Court.
In substance it was the same as in the Code of 1872. In the Code of 1898 also trial is not defined and inquiry is defined as:
Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or a Court.
The omission of the definition of 'trial' both in the Code of 1882 and of 1898 should lead to a reasonable inference that 'trial' was to embrace proceedings in a warrant case from the inception and not proceedings only after the framing of the charge, and further that Section 350 was not intended to confer a right on the accused to have the Witnesses resummoned and reheard only when a ^charge was framed and not earlier.
5. This view finds support from reported decisions. Precisely the same point arose in - Labhsing v. Emperor AIR 1934 Sind 106 (B), where the provisions of Section 350 were carefully examined from different view points and it was held that the trial of an accused person for the purpose of the Section does not commence at the charge, but commences as stated in Chapter 21 when the accused appears before the Court, and that if the Magistrate who has recorded the evidence of witnesses in a warrant case is transferred before he has framed a charge, the accused is entitled to demand that the witnesses may be resummoned and examined de novo. The learned Additional Judicial Commissioner, who delivered the judgment of the Court, examined the relevant Section of Chapter 21 relating to the trial of warrant cases and also the use of the expression 'trial' in other Chapters and he'd that the said expression when used in different Chapters of the Code must, in the absence of a very strong reason to the contrary, be interpreted in the same way, and there was no reason why it should receive different meanings when used in Chapters 21, 22 and 23. Dealing with Section 256 the learned Judge held that it conferred a right upon the accused person of cross-examining prosecution witnesses who had already been called and observed:
The expression 'claims to be tried' in Section 258 does not, therefore, necessarily show that the trial of an accused person does not commence prior to a charge being framed against him. All that this section indicates is that the right of the accused to recall the prosecution witnesses for further cross-examination is not lost until the commencement of the next hearing after the framing of the charge.
As the learned Judge has pointed out there is a difference between the right of an accused person of recalling a witness for further cross-examination and that of resummoning him and rehearing him de novo. Whereas in the former the accused has an opportunity of putting such further questions to the witness as may be considered necessary, a fresh examination of witless enables the Magistrate before whom the witness gives the evidence to form his own impression of the evidence as given before him and not as recorded by his predecessor. In a proceeding where the stage of either discharging the accused or framing a, charge had not been reached (before the first Magistrate) this may enable him, all the more, to decide whether the evidence at all justifies the framing of a charge. The learned Judge has also explained the distinction between Clause (1) and proviso (b) to Section 350 of empowering the trying Magistrate or the superior Court to order that the witness be recalled both in an inquiry and in a trial as against the accused's right to demand the resummoning of the witnesses only in a trial. He observes:
If an enquiry is not to result in the conviction of an accused person but to result in his trial either before the same or another Magistrate or before a higher Court when the witnesses are to be examined de novo there is no reason why the accused should have the right to recall such witnesses before he is actually put on his trial. But the trying Magistrate in such cases and .also the higher Court may consider it desirable that witnesses should be recalled for the purpose of deciding whether such inquiry should or should not lead to the trial of an accused person. It is another matter when the witnesses are not to be recalled as a matter of course before the judgment is given.
Again, as the learned Judge points out, it is difficult to see that although the legislature intended to empower an accused person charged with a petty offence punishable with imprisonment for six months only to resummon witnesses on the transfer of the trying Magistrate at any time before he has given judgment, but to deny him that right in cases involving more serious offences, except in a case where a charge has been framed by the trying Magistrate. If that had been the intention of the legislature then an express provision should have been made to that effect and it should not have been left to an inference to be drawn from Section 256. With respect I agree with the reasoning of the learned Judge and, in my opinion, the judgment answers the material objections against the view that the expression 'trial' in Clause (a) of the proviso to Section 350(1) does not mean proceedings after the framing of the charge, but proceedings from the stage the accused is brought before the Magistrate and the Magistrate proceeds to hear the evidence.
6. The next case is - Sahib Din v. Emperor AIR 1922 Lah 49 (C), and it was referred to with approval in the above Sind case. The provisions of Chapters 18, 20, 21, 22 and 23 were there considered and also earlier decisions on the subject and it was held that for the purposes of Section 350, a trial cannot be said to commence only when a charge is framed and that though in an inquiry by a Magistrate into a case triable by the Court of Sessions or High Court the accused did not have the right to demand that the witnesses shall be resummoned and reheard in the event of a change in the Magistrates, he had such a right not only in warrant cases but also in the case of summary trials and trials of summons cases. It was also held that the time, when he must exercise the right, is when the second Magistrate commences his proceedings and not when a charge is framed.
7. In - Gomer Sirda v. Queen Empress 25 Cal 8G4 (D), the point decided was that an accused person does not lose the right of having the witnesses resummoned and reheard under proviso (a) Section 350, Criminal P.C., because an interlocutory application for enforcing the attendance of certain witnesses has been made and granted not at the trial but before the trial and with a view to the trial, and that the proper time for making such application is when the trial commences before the Magistrate. The expression 'trial' was taken as meaning the proceeding which commences when the case n called on with the Magistrate on the Bench, the accused in the dock, and the representatives of the prosecution and for the defence, if the accused be defended, present in Court, for the hearing of the case; which, in other words, means that the trial begins from the time the accused is brought before the Magistrate and the Magistrate proceeds to record the evidence as provided for in Section 252. This ruling was followed by the Bombay High Court in - Dagdu Govindset v. Punja Vedu AIR 1937 Bom 55 (E), and - 'Dagdu's case (E)' was followed in - Ramchandra Narhar v. Emperor AIR 1944 Bom 14 (F).
8. In support of the contrary view the following rulings of the Madras High Court may be referred to. - In re Narayanaswamy Naidu 32 Mad 220 (PB) (G); - T. Srirarnulu v. Krishna Raw AIR 1915 Mad 23 (H); - Venkatachinnayya v. Emperor AIR 1920 Mad 337 (FB) (I); - Ramanattian Chettiar v. Emperor AIR 1923 Mad 660 (J) and - Lakshmi Reddy v. Muni Reddy AIR 1931 Mad 488 (2)(K) in - 'Narayanaswamy Naidu' (G), the point related to the powers of the Sessions Judge or District Magistrate under Section 437 of the Code. The question which arises in the present case was not before their Lordships in that case and their Lordships' attention was not drawn to it and they were not called upon to decide whether the expression 'trial' may not bear different meanings in different Sections. The points in - 'AIR 1915 Mad 23 (H)' and - 'AIR 1920 Mad 337 (FB)(I)' and - 'AIR 1931 Mad 488 (2)(K)' too were different. It was only in - 'AIR 1923 Mad 660 (J)', that a point similar to the one arising here had arisen and it was there held following the earlier rulings of the Madras High Court, that in warrant cases all proceedings before the charge is framed are only 'inquiry' and not 'trial' and hence if there is a change of Magistrates before a charge is framed in such cases, the accused is not entitled to a fresh examination of witnesses as provided by Section 350(1)(a) of the Code. It is a short judgment containing no reasons, and the decisions there relied upon did not embrace this precise point. These decisions of the Madras High Court again proceed on the assumption that this was the settled view of the law and they are not based on an examination of the question involved. The same can be said of the decision in - In re Harichandra Reddy AIR 1938 Mad 742 (L), which is based on - 'AIR 1931 Mad 488 (2)(K).
9. The Rajasthan High Court has considered the question in - Sarkar v. Madho Ram , and has reviewed the case law on the subject, including - Labhsingh v. Emperor AIR 1934 Sind 106 (B), and has held that in warrant cases the trial can be said to begin only after the charge is framed and that the proceedings before a charge is framed only amount to an enquiry. The view taken is that the word 'trial' has been used in different senses in different Chapters of the Code, and Bapna J., who delivered the judgment of the Court, has stated that in warrant cases he was inclined to think that the trial can be said to begin only after the charge is framed. For this view he has laid stress on Section 256 and also on Clause (b) of the proviso to Sub-section (1) of Section 350. With respect I am unable to agree with the learned Judge's reasoning in regard to both these provisions.
10. In - State v. Ambaram AIR 1953 Madh-B 1 (N), the meaning of the term 'trial' has been considered by the Madhya Bharat High Court, but in doing so the learned Judge, Kaul C.J., has assumed that a proceeding under Chapter 21 of the Code becomes a trial at a certain stage meaning thereby that till that stage is reached it is only an inquiry. With respect, such an assumption is not warranted and need not have been made. After referring to the definition of 'inquiry' in the present Code and in the earlier Code of Criminal Procedure and of 'trial' in the Code of 1872, the learned Judge observes thus:
The fact that this definition was dropped and not reproduced in the Code of 1882, need not lead to the inference that there was an intention to give the term 'trial' a connotation different from what it bore in the Code of 1872. Nor should the headings of Chapters 20 and 21 lead us to a different conclusion. These Chapters are headed 'Trial of Summons Cases by Magistrates'.
It does not necessarily follow from these headings that every section contained in these Chapters relates to the proceeding known as 'trial'.
Again, with respect, I am unable to agree with the first part of these observations and to my mind the fact that the definition of the word 'trial' was omitted in the Code of 1882 is rather significant. With regard to the second part of the above observations, apart from the heading of Chapter 21, the sections contained in the said Chapter themselves suggest that they do not contemplate anything like an 'inquiry' as contradistinguished from 'trial' in a warrant case.
11. For the reasons above stated I hold that a trial in a warrant case commences when the accused appears or is brought before a Magistrate and the Magistrate proceeds to hear the evidence in the case and that it does not begin after a charge is framed. In this view, therefore, the order of the learned Magistrate refusing to re-summon the witnesses who had been examined by the first Magistrate is wrong and must be set aside, we, therefore, accept the reference and direct the learned Magistrate to resummon and rehear the witnesses named by the accused in his application and to proceed with the hearing of the case according to law.
12. I agree.