Kumaraswami Sastri, J.
1. The question referred to us for decision is:
Is an accused person, who has been called upon to give security for good behaviour, entitled to the benefit of Section 256, Criminal Procedure Code
2. The sections dealing with security for good behaviour are contained in Chapter VIII of the Criminal Procedure Code.
3. Section 110 empowers the Magistrates enumerated therein to require a person habitually addicted to the commission of offences mentioned in Clauses (a) to (e) to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for such period not exceeding three years as the Magistrate thinks fit.
4. Section 112 provides that, where a Magistrate deems it necessary to require any person to show cause, he shall make an order in writing setting' forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties required.
5. Section 113 says that if the person in respect of whom an order has been made is present in Court, it shall be read over to him or explained to him if he so desires.
6. Section 114 says that if the person is not present in Court, a summons should be issued calling on him to appear.
7. Section 115 requires the summons or warrant to be accompanied by a copy of the order made under Section 112 and to be delivered to the person.
8. Then comes Section 117, the section which prescribes the mode of enquiry. It says that when the person appears in Court, the Magistrate shall proceed to enquire into the truth of the information upon which action, has been taken and take further evidence as may appear necessary.
9. Clause (2) runs as follows:
Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases, except that no charge need be framed.
10. The form prescribed in Schedule V for the summons to be issued under Section 114 runs as follows:
Whereas it has been made to appear to me by credible information that (then the substance of the information is set out) *** you are hereby required to attend in person (or by a duly authorized agent) (on a date specified in the form) to show cause why you should not be required to enter into a bond, etc.
11. So that Chapter VIII provides for the procedure to be adopted till the enquiry opens and Section 117 says that where the order requires security for good behaviour the enquiry shall be made as nearly as practicable in the manner prescribed for conducting trials in warrant cases. Turning to the mode prescribed for the trial of warrant cases which is provided for in Chapter XXI, Section 252 provides for the discharge of the accused if no case is made out by the prosecution witnesses.
12. Section 254 enacts that if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, a charge should be framed.
13. Section 255 requires that the charge should be read and explained to the accused and that he should be asked whether he pleads guilty or has any defence to make and empowers the Magistrate to convict the accused if he pleads guilty.
14. Under Section 256 if the accused refuses to plead, or does not plead, or claims to be tried, then he has to state within the period mentioned in the section whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled, and, after cross-examination and re-examination, if any, they shall be discharged and the evidence of the remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination, if any, they also shall be discharged and the accused shall then be called upon to enter upon his defence and produce his evidence.
15. Section 257 runs as follows:
(1) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined, or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.(2) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.
16. Under Section 258, the Magistrate has to record the order of acquittal if he finds the accused not guilty, and if he is guilty to pass sentence according to law.
17. Section 259 refers to the procedure to be adopted if the complainant is absent and the case is compoundable.
18. Now it is obvious that under Chapter XXI the Magistrate can frame a charge at any stage of the prosecution case. He is not bound to wait until all the prosecution witnesses have been examined. The sections following Section 254 presume that a charge has been framed and are only applicable on that basis. They also refer to offence and to acquittal.
19. It is obvious from the provisions of Chapter VIII that no charge is framed but the procedure till we come to trial is that the Magistrate proceeds ex parte until it comes to the stage of sending notice or summons to the person against whom security is required. Then under Section 112, the Magistrate gives the substance of the information received and the particulars as to the bond, and then the trial begins.
20. Reading the provisions of Chapters VIII and XXI it is clear that so far as the person required to give security is concerned, the trial really commences from the point where notice has been given to him to show cause which contains the substance of the information and which must be treated as equivalent to a charge though not the charge itself. In this view effect can be given to all the provisions and under Section 256 the cross-examination of the witnesses should take place as if witnesses examined for the prosecution are witnesses examined after a charge has been framed. Section 257 would apply where for any reason he wants to recall and cross-examine the prosecution witnesses, the Magistrate having a discretion to refuse an application if he is of opinion that the application is made for the purpose of vexation or delay.
21. It has been argued by Mr. Grant that all that Section 117, Clause (2) says is that no charge need be framed and that consequently if a Magistrate chooses to frame a charge, then there will be really two charges, one contained in the notice and the other in the charge framed. I find it difficult to see how any Magistrate can, having regard to the provisions of Chapter VIII, frame any charge such as is contemplated by Sections 221 to 223 in Chapter XIX. The words 'no charge need be framed' really mean that the charge shall be dispensed with because in the very nature of things it is not possible to frame a charge with the particulars enjoined by Sections 221 to 223.
22. It is also argued that a party cannot know exactly for what he is tried until all the witnesses have been examined and it may be necessary for him to cross-examine the witnesses and that it would be a great hardship if the opportunity given to him by Section 256 is not given. Treating it as a mere question of hardship, I think Section 257 provides for all reasonable requirements. The Magistrate is bound, if he refuses the application, to state in writing that in his opinion the application is made for the purpose of vexation or delay or for defeating the ends of justice. Except for that reason the Magistrate is bound to issue process and there is no reason why if the right is going to be abused the Magistrate is still bound to issue summons. I agree with the observations of Shadi Lal, J., in Ahmad Bakhsh v. Emperor (1915) 32 I.C. 676 that if there is no hardship to the other party under Section 287 it is desirable that proceedings under Chapter XXI should not be unduly delayed.
23. The view I take is amply supported by authority.
24. In Chintamon Singh v. Emperor I.L.R.(1907) C. 243 Rampini and Sharfuddin, JJ., observed:
No doubt, under Section 117 of the Criminal Procedure Code, the enquiry into bad livelihood cases should be made as nearly as may be practicable in the manner prescribed for conducting trials and recording evidence in warrant cases. But we do not think that the provisions of Section 256 of the Criminal Procedure Code indicate that the person called upon to show cause under Section 110 of the Criminal Procedure Code has a right to further cross-examine the prosecution witnesses under Section 256 of the Criminal Procedure Code, inasmuch as the provisions of this section relate to cases where a formal charge as required by Section 254 has been drawn up and the accused has been called upon to meet that charge. In cases under Section 110 of the Criminal Procedure Code the order of the Magistrate under Section 112 of the Criminal Procedure Code is equivalent to a charge. The object in giving the substance of the information in an order under Section 112 of the Criminal Procedure Code is that the person called upon to show cause may clearly understand the matter that he has to meet in his defence, and a Magistrate has no power to go beyond the requirements of his order under Section 112 of the Criminal Procedure Code.
25. In Bija v. The Crown I.L.R.(1926) Lah. 265 it was held that a person against whom proceedings have been taken under Section 110 of the Criminal Procedure Code has no right to further cross-examine the prosecution witnesses under Section 256 of the Code. Sir Shadi Lal, C.J., refers with approval to Chintamon Singh v. Emperor I.L.R.(1907) C. 243.
26. In Ahmad Bakhsh v. Emperor (1915) 32 I.C. 676 Shadi Lal, J., observed:
In security cases the order passed by the Magistrate under Section 112 is equivalent to a charge in a warrant case and the person against whom the 'order is made is fully aware of what is alleged against him. The evidence is thereafter recorded in his presence and he has every reasonable opportunity of cross-examining the witnesses. There is consequently no conceivable reason why he should be allowed the right of a second cross-examination and why he should thereby protract the proceedings unnecessarily. The reason which underlies the rule as to double cross-examination in warrant cases is entirely absent here, and the principle of cessante ratione legis, cessat ipsa lex is fully applicable.
The learned Judge follows the view taken in Chintamon Singh v. Emperor (1907) T.L.R. 35 C 243 and dissents from the view taken in Emperor v. Lansha (1910) 9 I.C. 468
27. Mr. Grant has referred us to Venkatachinnayya v. King-Emperor : (1920)38MLJ370 The question there for determination was whether Section 350 (1), proviso (a) of the Criminal Procedure Code, which refers to change of Magistracy during the pendency of a trial and the right to have a de novo trial applies to security proceedings and the Full Bench held it did. In dealing with the question, however, there are observations of Ayling and Courts Trotter, JJ., to the effect that the accused had a right under Section 256 to recall the prosecution witnesses. These observations are in my opinion obiter dicta as the learned Judges were not there dealing with the right now claimed.
28. Reference has also been made to Emperor v. Lansha (1910) 9 I.C. 468. which is a case decided by the Chief Court of Burma and where it was held that Section 256 of the Criminal Procedure Code is applicable to proceedings under Section 110 by virtue of the provisions of Section 117, Clause (2) of the Code. There is no reference to any authorities, and this case is dissented from in the case reported in Bija v. The Crown I.L.R.(1926) Lah. 265.
29. In Emperor v. Tirlok I.L.R.(1927) A. 71 Boys, J., after referring to the provisions of Section 117 and the provision that no charge need be framed, observed:
The reason for the exception is obvious. What is equivalent to a charge has already been framed in the order served upon, the, accused in accordance with Section 112.
The learned Judge then goes on to deal with Sections 254 and 255 and observes that at any stage of the proceedings the Magistrate, if he is prima facie satisfied that there is a case against the accused, may interrupt proceedings for the purpose of asking the accused whether he pleads guilty or whether he has any defence to make and that if he does so and the accused wishes to defend, then the accused can recall for cross-examination witnesses examined up to that stage and if the Magistrate does not do so but waits till all the prosecution witnesses are called, the accused can, when he is asked if he wishes to defend, ask for the recall of prosecution witnesses. It seems to me that if the notice under Section 112 is equivalent to the charge and if when that notice is read to accused he has the option of either executing the bond or denying his liability to do so, there is no necessity for the Magistrate interrupting proceedings. He cannot again issue a notice under Section 112 and there is no analogy to a magistrate in warrant cases framing a charge when only some of the prosecution witnesses are examined and then going on with the rest of the prosecution evidence.
30. I prefer to follow the view taken in Chintamon Singh v. Emperor I.L.R.(1907) C. 243 Ahmad Bakhsh v. Emperor (1915) 32 I.C. 676 and Bija v. The Crown I.L.R.(1926) Lah. 265 and would answer the reference by stating that in security proceedings where the other side wants to recall any prosecution witness he has no absolute right to do so under Section 256 of the Criminal Procedure Code but has a right under Section 257 of the Code.
31. In this case it appears that the Magistrate rejected the application to re-summon on the ground that Section 256 does not give the accused that right. He has not applied his mind to the question whether it is necessary in the interests of the accused that the witnesses should be re-summoned nor does he state that he considered the application was one made for the purpose of delay. Whether this would be a ground for interference is a matter entirely for the Bench to decide.
32. In deciding whether the right to recall prosecution witnesses for cross-examination, given by Section 256 of the Criminal Procedure Code, can be claimed under Section 117 in security proceedings, it is of assistance to consider why the right is given in the trial of a warrant case. Two answers are possible:
(1) The charge shows the accused, perhaps for the first time, precisely what he has to meet. The first cross-examination may, therefore, have been conducted in some measure under a mistaken impression.
(2) Answers elicited from later prosecution witnesses necessitate the further questioning of earlier ones.
33. If the right had been given on ground No. (2), exercise of it would not have been restricted to the stage immediately after charge, since a charge may be framed before the examination of the prosecution witnesses is completed. It would have been fixed at the close of the prosecution evidence. The fact that the stage in the case at which the right must be exercised is the stage at which the charge is framed supports the view that charge and right are related as cause and effect, and therefore no charge no right. There is no such right in proceedings where no charge is framed, e.g., summons cases, sessions trials, civil suits.
34. If the right is allowed in proceedings under Section 117 it must be on a less qualified basis than in a warrant case. We must hold that it is exercisable in all instances after all the witnesses for the prosecution have been examined. In so holding, instead of merely applying warrant procedure 'as nearly as may be practicable,' we should be going beyond it and conceding a right which it does not confer. We should be creating an inflexible rule in security cases where no such inflexible rule exists in warrant cases.
35. I agree with my learned brother Kumaraswami Sastri, J., that the words 'No charge need be framed' can only mean that 'no occasion can arise for framing a charge; because under Section 221 (1) every charge shall state the offence with which the accused is charged. In security proceedings the place of charge is taken by the 'order in writing setting forth the substance of the information received' prescribed by Section 112. This order has to be read over to the person in respect of whom it is made, and although the Code does not provide that he should plead to it, it resembles a charge in that it must contain a statement in abstract of the prosecution case.
36. In E. Venkatachinnayya v. King-Emperor : (1920)38MLJ370 the question for decision, so far as we are now concerned, was whether in security proceedings for good behaviour the effect of Sub-section (2) of Section 117, Criminal Procedure Code, was to render applicable the provisions of Chapter XXI of the Code, dealing with warrant cases, and those of Chapter XXV, in so far as they deal with the mode of taking or recording evidence in such cases, or whether the sub-section attracted the provisions of all sections of the Code which are applicable to warrant cases. The Full Bench had not to decide which of the provisions of Chapter XXI should be deemed to be inapplicable, so that any observations made upon that question were clearly obiter. I do not myself think that Ayling, J., in selecting Section 256 as what seems to have been a random illustration, meant that in his view its provisions had necessarily to be enforced. All that he says is that Section 350 is as much a matter of procedure as the right to have prosecution witnesses recalled and cross-examined conferred by Section 256. Accordingly there Was no ground for disputing the applicability of Section 350 merely because it occurred elsewhere in the Code. The line of reasoning is not vitiated by the circumstance that the provisions of Section 256, although a matter of procedure and therefore prima facie applicable, may, on special grounds, be found incompatible with the method of conducting a security inquiry. The observation of Coutts Trotter, J., (as he then was), that the whole of the procedure in a warrant case must be adopted, was clearly no more than a generalisation.
37. I agree with the answer to the reference proposed by my learned brother.
Pakenham Walsh, J.
38. I agree that the order calling on' a person to show cause why he should not execute a bond to be of good behaviour is 'equivalent to a charge' and there is ample authority for this position. It is impossible to frame a regular charge for several reasons. In the first place it is doubtful whether a person called on to show cause in such a case is an 'accused.'
39. In Jhoja Singh v. Queen-Empress I.L.R.(1896) C. 493 it was held that he was, but in Hopcroft v. Emperor I.L.R.(1908) C. 163 more cautious language is used that 'he stands in the position of an accused person' and finally in Binode Behuri Nath v. Emperor I.L.R.(1923) C. 985 it was held that he was not an accused person so that Jhoja Singh v. Queen-Empress I.L.R.(1896) C. 493 must be held to have been overruled. Queen-Empress v. Mona Puna I.L.R.(1892) B. 661 does not deal with a case of security for good behaviour. No doubt Queen-Empress v. Mutasaddi Lal I.L.R.(1898) A. 107 remains and Coutts Trotter, J., in E. Venkatachinnayya v. King-Emperor : (1920)38MLJ370 seems to incline to the same view.
40. Secondly, it is doubtful if there is any 'offence'. In E. Venkatachinnayya v. King-Emperor : (1920)38MLJ370 Ayling, J,, remarked on p. 523 that no 'offence' is involved in an enquiry under Chapter VIII of the Code, and Coutts Trotter, J. (as he then was) says, 'if he cannot be said to be 'charged' with an offence it is at least sought to be proved against him that he is a person with criminal or undesirable propensities'. I agree with my learned brothers in interpreting the words 'No charge need be framed' as meaning that no occasion can arise for framing a charge. If the order under Section 112, Criminal Procedure Code, which is equivalent to a charge is not a charge there is no stage at which or process by which it can become anything more. Neither evidence in support of it nor the Court's opinion that it is prima facie proved by the evidence tendered can enable anything else to be framed than an order under the terms of Section 112 and the Code does not contemplate two identical charges in the same case.
41. I agree with my learned brother Curgenven, J., in his classification of the two reasons why a right to recall and cross-examine prosecution witnesses is given in a warrant case and 1 would say that Sections 256 and 257 seem to me to deal respectively with those two rights. The right to cross-examine when the person first knows exactly what the charge against him is, is absolute and is dealt with under Section 256. It extends not to all the prosecution witnesses but only to those examined before the charge is framed and the Court may frame a charge at any stage. It does not mean as we should have to hold that it means if we accepted Mr. Grant's argument, a right to recall and cross-examine all the prosecution witnesses.
42. The right to recall and cross-examine earlier witnesses owing to what may be said by later ones is qualified and is dealt with by Section 257. As the 'equivalent to a charge' is framed under Chapter VIII before any of the prosecution witnesses are examined the absolute right of re-call cannot arise for the first purpose, but the qualified right for the second purpose does exist. It may be noted that Chapter VIII seems to be somewhat defective as it does not expressly provide for an examination of witnesses called for the defence and the only form of summons given in the Appendix, Schedule V, is with regard to giving security for keeping the peace.
43. The balance of authority is certainly against a right of recall and cross-examination of the prosecution witnesses under Section 256 (1). The remarks relied on in E. Venkatachinayya v. King-Emperor : (1920)38MLJ370 are obiter. Although the reference to us does not mention Section 257 I agree that we should answer the question in the manner proposed by my learned brothers.