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State Through Motisingh Vs. Kamal Jat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Ref. No. 36 of 1962
Judge
Reported inAIR1963Raj9; 1963CriLJ65
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 251A(7) and 251A(9)
AppellantState Through Motisingh
RespondentKamal Jat
Advocates: Kan Singh, Govt. Adv.
DispositionReference rejected
Excerpt:
.....- prosecution evidence was recorded on 7th and 8th march and only one witness .sub-inspector police abdul hamid khan remained to be examined arid the case was fixed for recording his evidence on 30th march, 1960. the sub-inspector police failed to attend the court on 30th march to give evidence. the trial against him was bad. further cross-examination presupposes a prior cross-examination and a proper emphasis on the word 'further' clearly warrants an inference, that the, magistrate is competent to recall also those witnesses who had been cross-examined earlier, it being assumed, there are sufficient reasons for such a course. 5. now it is well established rule of the construction of statutes that the words of statute should be expounded in their natural and ordinary sense and should be..........another application praying for the re-calling of all the prosecution witnesses for further cross examination under section 251-a sub-section (7), criminal p. c. the ground on which the prayer was based was that at the time of the examination of the prosecution witnesses the accused was not represented by a counsel and, therefore, there was no effective cross examination and that it was necessary in the interest of justice to afford him an opportunity of cross examining the prosecution witnesses. the application was opposed by the prosecuting sub-inspector and the counsel for the complainant. the magistrate by his order dated 22nd june, 1960, partially allowed the application and directed the recall of the four witnesses, complainant motisingh, ghamandi, natholi and mool-singh for.....
Judgment:
ORDER

L.N. Chhangani, J.

1. This is a reference by the Additional District; Magistrate, Sawai Madhopur, and raises a question relating to the proper interpretation of proviso to Sub-section (7) of section 251-A,. Criminal P. C.

2. The facts leading to the reference may be, shortly stated as follows:

3. The accused Kawal Jat, resident of Maimpur, is being tried for offences under sections 215 and 411, Indian Penal Code in the Court of Munsif-Magistrate, Hindaun. Charges were framed against, him on 28th of January, 1960 and the accused-pleaded not guilty. Prosecution evidence was recorded on 7th and 8th March and only one witness .Sub-Inspector Police Abdul Hamid Khan remained to be examined arid the case was fixed for recording his evidence on 30th March, 1960. The Sub-Inspector Police failed to attend the Court on 30th March to give evidence. On that day, the accused having engaged a counsel, put in an application praying for de novo trial on the ground that as he was not supplied the necessary documents under section 173, Criminal P. C. the trial against him was bad.

The Munsif Magistrate observing that the necessary documents had been supplied to the accused on 12th January, 1960, and that there was nothing irregular in the trial, rejected his application. On that very day the accused submitted another application praying for the re-calling of all the prosecution witnesses for further cross examination under section 251-A Sub-section (7), Criminal P. C. The ground on which the prayer was based was that at the time of the examination of the prosecution witnesses the accused was not represented by a counsel and, therefore, there was no effective cross examination and that it was necessary in the interest of justice to afford him an opportunity of cross examining the prosecution witnesses. The application was opposed by the Prosecuting Sub-Inspector and the counsel for the complainant. The Magistrate by his order dated 22nd June, 1960, partially allowed the application and directed the recall of the four witnesses, complainant Motisingh, Ghamandi, Natholi and Mool-singh for further cross examination under Section 251A Sub-section (7) proviso. The accused was, however, directed to bear the expenses to be incurred in summoning the witnesses for further cross examination.

Motisingh the complainant filed a revision application against this order of the Munsif-Magistrate which was heard by the Additional District Magistrate, Sawai Madhopur. The Additional District Magistrate considered the order of the Magistrate erroneous in law and has made the present reference with the recommendation that the order should be set aside. Dealing with proviso to subsection (7) of section 251-A relied upon by the trial Magistrate, the Additional District Magistrate has expressed the view that it should be construed to empower a Magistrate to recall only those witnesses for cross examination whose cross examination has been deferred until the examination of some other witness or witnesses and that the trial Magistrate cannot order the recall of those witnesses who had been cross-examined earlier and whose cross examination has not been deferred. In adopting this interpretation of the proviso in question, he has relied upon two main considerations:

1. Section 251-A has been introduced in the Criminal Procedure Code to ensure speedy disposal of the warrant cases instituted on police report and on the basis of the consideration the Additional District Magistrate inferred that the accused has no right to request for the recall of the prosecution witnesses who have been cross-examined earlier as he appears to think that the recognition of such right cannot be conducive to speedy trials.

2. The second consideration which has weighed with the Additional District Magistrate is that under Sub-section (9) the accused can apply for issuing process for compelling the attendance of any witness for cross-examination after he has entered upon his defence. In view of the availability of 'this opportunity to the accused, the Additional District Magistrate appears to have thought that the accused cannot claim any opportunity of applying for recalling witnesses cross examined earlier for further cross examination at a stage prior to his entering upon defence.

4. The parties have not cared to appear before me. The Government Advocate was heard on the reference and he has frankly stated before me that he could not support the order of reference. The proviso to Sub-section (7) of section 251-A, the interpretation of which is the subject-matter of the present controversy, reads as follows:

'Provided that the Magistrate may permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined, or recall any witness for further cross-examination.'

Evidently, the proviso provides for two matters, viz. deference of the cross-examination of the witnesses for the prosecution and recalling the witnesses for further cross-examination, There is a comma and the conjunction 'or' to lint the expressions providing for these two matters. On a plain and grammatical consideration of the entire I language of the proviso, and the use of comma and the conjunction 'or', it appears to me very clear that the later part of the proviso, relating to the recall o[ witnesses for further cross-examination is intended to provide for an independent matter and should be construed without importing any limitations from the earlier part and that it cannot be treated in the nature of a mere consequential provision.

Construing the relevant provision in this manner and giving due effect to the expression 'any witness' there appears no valid justification for a conclusion that the power of the Magistrate to recall witnesses is confined only to those witnesses whose cross-examination has been deferred. If the legislature intended to treat the subsequent part as merely a consequential provision the language would have been certainly different from the present language. Besides, the use of the word 'further' before cross-examination is also significant.

Further cross-examination presupposes a prior cross-examination and a proper emphasis on the word 'further' clearly warrants an inference, that the, Magistrate is competent to recall also those witnesses who had been cross-examined earlier, it being assumed, there are sufficient reasons for such a course. The use of the words 'further cross-examination' further must militate against a suggestion that the recall is limited to witnesses who had not been earlier cross-examined for in their case there can be no question of further cross-examination. Thus on a construction of the proviso in the grammatical sense, the correct conclusion appears; to be that a Magistrate exercising powers under the proviso to Sub-section (7) has the discretion to recall witnesses who had been cross-examined earlier. It may also be noted that section 540 also empowers the Magistrate to exercise the power of recalling witnesses at any stage and therefore the interpretation at which I have arrived is in keeping with the scheme of the Code of Criminal Procedure.

5. Now it is well established rule of the construction of Statutes that the words of Statute should be expounded in their natural and ordinary sense and should be read in their literal sense. The courts are not expected to busy themselves with the supposed intentions of the legislature. In view of this fundamental rule it will be hardly permissible to ignore the plain and literal meaning of the language used in connection with the recall of the witnesses and to adopt a restricted meaning by referring to the policy of the legislature to ensure speedy trials. In my considered opinion the desirability of speedy trials cannot justify a disregard of the plain and literal meaning particularly when such restricted meaning is to the disadvantage oft the accused,

6. A reference to the provision of Sub-section (9) for the purposes of interpreting the language of Sub-section (7) is also not relevant and justified. Sub-section (9) comes into operation after the accused has entered upon 'his defence, and the fact that the accused at that stage can apply for recall of the witnesses can provide no justification for restricting the meaning of the proviso to Sub-section (7), which governs the proceedings at a prior stage. In this view of the law, I am very clear that the Additional District Magistrate is not right in recommending that the order of the Magistrate should be set aside on the ground of lack of jurisdiction in the Magistrate to order recall of the witnesses for further cross-examination. I consider it proper to observe at this stage that the] Magistrates when requested to recall witnesses for further cross-examination under Sub-section (7) proviso should give due weight to the considerations that the accused had an opportunity of earlier cross-examination and will have the further opportunity of making a request for recall under Sub-section (9) as also to the need and desirability of speedy disposal of the cases and should exercise their discretion judiciously and property and that a reckless and arbitrary exercise of discretion is liable to challenge on revision.

In the present case, the Additional District Magistrate has made the reference only on the ground of lack of jurisdiction. He has not found any fault with the exercise of the discretion by the Magistrate and it cannot be assumed in the circumstances that the exercise of discretion is arbitrary or improper and therefore the order of the Magistrate needs no interference on this ground. Thus there is no case for setting aside the order of the Magistrate. The reference is not justified and is rejeccted.


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