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Rampyare Ramharakh Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 436 of 1960
Judge
Reported inAIR1961Guj193; 1961CriLJ763; (1961)0GLR476
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 173, 207A(6) and 287
AppellantRampyare Ramharakh
RespondentState of Gujarat
Appellant Advocate R.M. Shah and; A.H. Thakore, Advs.
Respondent Advocate H.M. Choksi, Govt. Pleader
DispositionReference answered in negative
Cases ReferredBai Khatija v. State of Gujarat
Excerpt:
criminal - committal inquiry - sections 173, 207 and 287 of criminal procedure code, 1898 - committal inquiry as evidence - section 207 gives opportunity to accused of being heard - statement given by accused in answer to question put by magistrate cannot be considered as evidence. - - in the course of the judgment, the learned judges have clearly set out the distinction which exists between 'evidence' arid 'documents',within the meaning of these words as used in section 207-a of the criminal procedure code......(6) and section 342 of the criminal procedure code-section 207a (6) provides as under:-- 'when the evidence referred to in sub-section (4) has been taken and the magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, 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.'section 342 (1).....
Judgment:

Desai, C.J.

1. The question that has been referred for decision to this Full Bench is the following:

'Whether a statement made by an accused at the committal inquiry in answer to questions put by the Magistrate in a case in which no evidence has been adduced by the prosecution and in which the order of commitment is passed after perusing the police statements under Section 207A, Criminal Procedure Code, can be admitted as evidence under Section 287, Criminal Procedure Code?'

In order to appreciate the point which arises for determination, it is necessary first to refer to the provisions of Section 287 of the Criminal Procedure Code. That section provides as under:

'The examination of the accused, if any, recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence.'

This section makes it obligatory upon the prosecutor to tender the examination of the accused, if any, which has been recorded by or be fore a committing Magistrate and the same is required to be read as evidence. We will next have to consider the provisions of the Code of Criminal Procedure, 1898, relating to the examination of the accused by or before a committing Magistrate. Reference in this connection may be made to the provisions of Section 207A (6) and Section 342 of the Criminal Procedure Code-Section 207A (6) provides as under:--

'When the evidence referred to in Sub-section (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, 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.'

Section 342 (1) lays down as under:

'For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.'

The relevant words used in Section 207A (6) and Section 342 in connection with the examination of the accused are very nearly similar. Under Section 207A (6) the Magistrate is entitled to examine the accused for the purpose of enabling him 'to explain any circumstances appearing in the evidence against him'. Under Section 342 (1) also, the Magistrate is empowered to put such questions to the accused as he considers necessary for the purpose of enabling the accused 'to explain any circumstances appearing in the evidence against him.' Under both these provisions, the power is limited in order to obtain an explanation in respect of the circumstances which may appear 'in the evidence' against the accused. The power given is not a power which can be exercised for the purpose of filling in any lacuna in the case for the prosecution or for the purpose of enabling the prosecution to secure a conviction. The power cannot be exercised for the purpose of explaining the circumstances which do not appear in the evidence or, in other words, which appear otherwise than in the evidence led against the accused. This is made clear when one turns to the other provisions contained in Section 207A of the Cede of Criminal Procedure. This section deals with the procedure which is required to be adopted in proceedings which are instituted on a police report. Sub-section (3) of this section provides as follows:

'At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him Satisfy himself that the documents referred to in Section 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.'

2. At this stage, it would not be out of place to refer to Section 173 for the purpose of ascertaining the documents referred to therein. Sub-section (4) of Section 173 provides:

'After forwarding a report under this sec-lion, the officer in charge of the police-station shall, before the commencement of the inquiry 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 of 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.'

The documents referred to in Sub-section (3) of Section 207A consist of the documents set out in Sub-section (4) of Section 173.

3. Sub-section (4) of Section 207A provides that the Magistrate should proceed thereafter 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 was of thc opinion that it was necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he might take such evidence also. When in Sub-section (6) of Section 207A reference is made to the circumstances appearing in the evidence against the accused, the reference is to the circumstances which appear in the evidence recorded under Sub-section (4) of Section 207A. Sub-section (6) of Section 207A deals with various steps in the course of the proceedings instituted on a police report. One step is the taking of the evidence referred to in Sub-section (4) of Section 207-A. Another step is the consideration by the Magistrate of all the documents referred to in Section 173. The third step in the examination, if necessary, by the Magistrate of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, and the fourth step is the giving of an opportunity of being heard to the prosecution and the accused. It is thereafter that the Magistrate has, if he was of the opinion that 'such evidence and documents' disclosed no grounds for committing the accused person for trial, to record his reasons and discharge the accused, unless he took the other course provided in the section. The words 'such evidence and documents' in the latter part of this section refer to the evidence which is recorded under Sub-section (4) and the documents referred to in Section 173.

4. Sub-section (7) of Section 207-A providesthat when, 'upon such, evidence being taken, (that)is evidence being taken under the provisions, ofSub-section (4).) and such, documents being considered, (namely the documents referred to inSection 173) and such examination (if any) beingmade (that is the examination of the accused forthe purpose of enabling him to explain the circumstances appearing in the evidence againsthim) and the prosecution and the accused beinggiven an opportunity of being heard,' the Magistrate was of opinion that the accused should becommitted for trial, he should frame a chargeunder his hand declaring with what offence theaccused was charged. Sub-sections (6) and (7)both indicate the aforesaid four steps. It is notpermissible to mix up the various steps and consider what transpires when the Magistrate givesthe prosecution and the accused an opportunityof being heard, as being equivalent to whattranspires when the Magistrate examines the accused for the purpose of enabling the accused toexplain any circumstances appearing in the evidenceagainst him.

5. Reliance has been placed upon a decision of the Bombay High Court reported in 61 Bom LR 1173: (AIR 1960 Bom 124), Ramdas Kikabhai v. State. It is a decision of an eminent Bench of that Court consisting of Chief Justice Chainani and Justice S. T. Desai as he then was. In the course of the judgment, the learned Judges have clearly set out the distinction which exists between 'evidence' arid 'documents', within the meaning of these words as used in Section 207-A of the Criminal Procedure Code. At page 1175 (of Bom. LR) : (at 'p. 125 of AIR), they observe that the evidence referred to therein is the evidence, if any, taken under Sub-section (4) and that it could not, therefore, include the documents referred to in Section 173. They have held that the section contemplated an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, that is in the evidence, if any, recorded under Sub-section (4). However, when dealing with the question whether the Magistrate had the power to question the accused for the purpose of enabling him to explain any circumstances appearing in the documents referred to in Section 173, they come to the conclusion that the Magistrate would have the power to examine the accused also in respect of circumstances appearing in the documents referred to in Section 173. They further held that in a case where no evidence had been led under the provisions of Section 207A (4) and the Magistrate had examined the accused in connection with the documents referred to in Section 173, the examination would be admissible in evidence under Section 287 of the Criminal procedure Code. With respect to the learned Judges, we find ourselves unable to subscribe to what as laid down in this connection. In our view, the effect of the decision in substance is to add words to Section 207A (6) for which we see no warrant The decision would have been justified if it had been stated in Section 207A (6) that the accused may be examined for the purpose of enabling him to explain any circumstances appearing not merely in the evidence led against him under Sub-section (4), but in the documents referred to in Section 173. We cannot read the words 'appearing in the evidence' as amounting to 'appearing both in the evidence and in the documents referred to in Section 173.' In that judgment, it is stated that the conclusion which they had arrived at was based on the words 'given the prosecution 'and the accused an opportunity of being heard' appearing in the section. With respect, we cannot see our way to accede to this argument. What is provided by these words represents the , fourth step referred to by us earlier in the procedure that has to be adopted under Section 207A. The step relating to the examination of the accused by the: Magistrate represents the third step in that procedure. The fourth step in the procedure is intended to enable the accused to make his submission in respect of the matter which was before the Magistrate. The submission made by the accused in exercise of the right conferred by this provision cannot be regarded as an examination of the accused within the meaning of Section 287 of the Criminal Procedure Code. A submission made by the accused cannot be equated with the examination of the accused by a Magistrate. In our view, the two matters are distinct and different. In this connection, we may usefully refer to Section 251A (2) which, was enacted at the same time as Section 207A. Under the provisions of Section 251A (2) it has been provided that if, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thought necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considered the charge against the accused to be groundless, he should discharge the accused. The examination of the accused contemplated under Section 251A is an examination in connection with documents referred to in Section 173. The language of Section 251A (2) is materially different from the language used in Section 207A (6). The words 'for the purpose of enabling him to explain any circumstances appearing in tile evidence against him' are absent in Section 251A (2). There is no reason for us to assume that the legislature, when, enacting Section 207A (6), also intended that the Magistrate should have the power to examine the accused in connection with the documents referred to in Section 173 when the legislature has, in express terms, confined the provisions to circumstances appearing, in the evidence led against the accused.

6. There is an unreported decision of Division Bench of this Court given in Criminal Appeal No. 279 of 1960, Bai Khatija v. State of Gujarat, on 19th and 20th September 1960. In that case, a Division Bench of this Court found itself unable to concur in the view taken by the Bombay High Court in the decision referred to by us earlier. It was there held that the examination of the accused was not permitted at the committal stage in cases where no evidence had been led by the prosecution. We are in agreement with that view.

7. In the result, the answer to the question is in the negative. The answer is confined to me admissibility of the statement under Section 287 of the Code of Criminal Procedure, 1898.


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