1. I agree with the opinion of Ayling and Coutts Trotter, JJ., which I have had the advantage of reading, as to the effect of the proviso to Section 350 read with Section 117, and will only add that in my opinion trial generally means the determination of the issues arising in the particular case. As pointed out in History of English Law, Pollock and Maitland, Vol. II, page 598, the word trial comes from the French trier, Latin tritare, and was first used of the testing or trial of challenges to jurors. Triers of challenges are still appointed when necessary in English criminal trials. Though we talk of the trial of persons, what are really tried, both in civil and criminal cases, are issues An ordinary criminal trial in England is, in the language of the common law, a trial of the general issue joined between the Crown and the accused on the latter's plea of 'not guilty' of the charge preferred against him. See Archbold Criminal Pleadings, Chapter 4, Section 5. 'The General Issue,' page 161, 25th Edition. On the other hand, the preliminary Magisterial inquiry which is of comparatively modern origin, forms no part of the trial. I think the framers of the Code had this distinction in mind when they framed the definition of 'inquiry' so as to exclude 'trial.' In the present case, an issue undoubtedly arises between the Crown and the accused, as to whether be should be dealt with under the sections, and I see no sufficient reason why the determination of that issue should not be regarded as a trial.
2. The question referred to us is as follows: 'Whether Section 350(1), proviso(a), Criminal Procedure Code, applies to a case under Section 107, Criminal Procedure Code.'
3. The proviso in question refers only to a 'trial' while the principal clause refers to 'an inquiry or a trial.' The difference is significant; and points irresistibly to the conclusion that the legislature intended to distinguish between an inquiry and a trial and to direct that, while the principal clause should apply to both, the proviso should only apply to a 'trial'. What, then, is a 'trial'? It is curious that the phrase is not defined in the Code, although it is explained in Section 4 that the term 'inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. It looks as if the framers of the Code regarded the word 'trial' as of such obvious significance as to require no definition. At the same time it is noticeable that in many sections of the Code the words 'inquiry' and 'trial' are used in close juxtaposition, and apparently intended to signify two different things. I can find nothing to support the idea that either is ever used in any general or popular sense; for instance the words 'inquired into' in Section 177, which has been referred to, seem to me intended to direct that not only the trial of a Sessions Case, but the preliminary inquiry under Chapter XVIII, shall ordinarily take place before a Court having territorial jurisdiction. In the absence of an express definition we can only look at the various sections of the Code in which the word 'trial' is used; and I can find none in which it is not used in connection with proceedings in which a person stands before a Court empowered to convict him of some 'offence' alleged against him. The word 'trial' as used in the Criminal Procedure Code seems to presuppose the idea of an offence--a word defined in Section 4 No 'offence' is involved in an inquiry under Chapter VIII of the Code; and in my opinion, inquiries under that Chapter are not trials. It follows that the proviso to Section 350(1) does not apply suo vigore to such proceedings.
4. There remains, however, the argument that it nevertheless applies by virtue of the provisions of the second clause of Section 117, Criminal Procedure Code, which runs thus:
Section 117(1). When an order under Section 112 has been read or explained under Section 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under Section 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.
(2) 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.
5. It is argued on behalf of the Crown that the effect of Clause (2) is merely to render applicable the provisions of Chapters XX and XXI of the Code which deal with the procedure in summons and warrant cases respectively, and those of Chapter XXV, in so far as they deal with the mode of taking and recording evidence in such cases. On behalf of petitioner it is contended that the clause attracts the provisions of all sections of the Code, wherever found, which are applicable to summons and warrant cases: and, in fact, places a person called on to show cause why he should not furnish security in exactly the same position (except as regards the framing of a charge) as a person tried in a summons or warrant case, as regards the procedure to be followed, and the privileges to be enjoyed by him in connection with the proceedings.
6. I must confess to great difficulty in the interpretation of this clause. It is certainly true that if the intention of the legislature had been that ascribed to it on petitioner's behalf, other language might have been employed; and the specific reference to the mode of recording evidence is somewhat significant of a limitation of the attractive power of the section. On the other hand it would have been perfectly easy to specify Chapters XX, XXI and XXV, if the framers of the Act had only these in mind. I am not much impressed with the argument based on the fact that certain other sections of the Code have been held applicable to inquiries under Section 117, e.g., Sections 340, 341, 314, 443, and 437. Sections 341 and 344 apply proprio vigore to inquiries as well as trials. Sections 340, 443 and 437 have been held applicable in Jhoga Singh v. Queen Empress I.L.R., (1896) Calc., 493, Hopcroft v. Emperor I.L.R., 36 (1909) Calc., 163, and Queen-Empress v. Mutasadi Lal I.L.R.(1899) ,All. 107 , but on a totally different ground--the true meaning to be attached to the word 'accused'--not by any reference to Section 117.
7. It seems to me that the words of the clause may be held to cover anything which has to do with the procedure in the Magistrate's Court, and that the right to have the witnesses re-summoned and re-heard conferred by Section 350 is as much a matter of procedure as the right to have prosecution witnesses recalled and cross-examined conferred by Section 256. On the other hand, if they are to be given the narrow interpretation contended for by the Crown, such provisions as those in Chapter XXVI, regarding judgments, will not apply to security cases.
8. That is to say, the Magistrate in ordering security under Section 118, either for good behaviour or keeping the peace, would be under no legal obligation, inter alia, to record a judgment setting forth his reasons (section 367), or to give accused a copy of it without delay (section 371). So far as I can see, apart from the operation of Section 117, the Magistrate might simply record an order requiring the execution of a bond, without recording any reasons or discussing the evidence. I do not think this could have been intended, especially as care has been taken to provide for an appeal against an order for security for good behaviour (vide Section 406), and for the interference of the Chief Presidency or District Magistrate in either class of cases (section 125), for reasons to be recorded. The sections in Chapter XXVI certainly apply proprio vigore only to trials: but the words 'offence (if any)' in Clause (2) of Section 367 are very curious, and suggest that the framers of the section may have had in mind the fact that they were indirectly applicable to inquiries under Chapter VIII by reason of the clause under consideration.
9. After the best consideration I can give the matter, I am inclined to think that Section 117(2), Criminal Procedure Code, does attract proviso (a), Section 350(1); and would answer the reference in the affirmative.
Coutts Trotter, J.
10. The question referred to us is whether Section 350, (1) proviso (a), Criminal Procedure Code, applies to a case under Section 107, Criminal Procedure Code.
11. The petitioners in the case were bound over to keep the peace under Section 107, Criminal Procedure Code, by a Magistrate who did not bear the evidence which had been heard and recorded by his predecessor who was transferred before its final determination. The petitioners claimed under the proviso to Section 350 to have the witnesses re-summoned and re-heard by the Magistrate who passed the final orders, and their application was refused. They applied in revision to the High Court and the learned Judges, Abdur Rahim and Spencer, differed. They referred the question to this Full Bench.
12. Section 350 provides for a Magistrate, who takes up a part-beard case, acting on the evidence wholly or in part recorded by his predecessor, and the general part of the section enables him to do so in an 'inquiry' or 'trial', but the proviso only enacts that in any 'trial' the accused may have the witnesses recalled. The contention on behalf of the Crown is that the scheme of the Code is to divide magisterial proceedings into 'inquiries' and 'trials', and the latitude given to the accused is confined designedly to 'trials', and that 'inquiries' are excluded from its application. The next step in the argument is to show that proceedings under Section 107 and the following sections are inquiries and not trials. The sections undoubtedly speak of an 'inquiry'--see Sections 117, 118 and 119.
13. The first contention of the petitioners is that the word 'inquiry' is used in the Code in two senses, a narrower and technical sense, and a more general one. The narrower one is defined in Section 4(k) as follows:
Inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.
14. A typical instance of such an inquiry is the preliminary inquiry held by a Magistrate previous to committal for trial to a higher Court. It can hardly be contended that the right conferred by the proviso to Section 350 could be successfully claimed in that case. It is said that 'inquiry' is used in a more general sense--investigation into the truth of any matter--in Section 177 and the following sections where the language used is:
Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
But those sections are not incapable of meaning that the preliminary inquiry before trial, and the subsequent trial after committal, should both be within the limits of jurisdiction of each Court in respect of it. It is further urged that the word 'trial' should be regarded as being used, where the context requires it, in a general and popular sense. It is quite true that the word 'trial' is not defined in the Code, but it may not unreasonably be urged that the definition of 'inquiry' impliedly defines 'trial' as every proceeding which is not an inquiry.
15. The question is whether we are bound to confine ourselves to the four walls of the Code and taking the nearest approach we can get to a definition, express or implied, apply it rigidly, or, whether we are at liberty to supplement the Code by an application of the principles that lie at the root of the administration of criminal law. In interpreting an English criminal statute there would be no difficulty: it is always subject to the general principles of the common law, unless they are excluded by the plain words of the statute. The history of the doctrine of mens rea and its application to various statutes is a familiar example. If we adopt such a procedure here, there could hardly be any doubt that the proceedings under Section 107 and the cognate sections have all the features of a trial. A person against whom they are taken has repeatedly been held to be an accused within the meaning of the Code, though he is not expressly so described. He has been held to have the right to be professionally represented, and 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. Finally, the consequences to him, if he neglects or is unable to furnish security, are so serious as to entail loss of liberty for a very considerable period. On the other hand, the history of the various Codes, and the circumstances of those Codes, unquestionably show that the framers of them intended them to be complete in themselves.
16. Besides these general considerations, it may be argued that the contrast between the body of Section 350, which expressly mentions both inquiry and trial, and the proviso which speaks exclusively of trial is indicative of the intention to use 'trial' as excluding 'inquiry', which can properly be, or is described as, an inquiry within the meaning of the Code. This comes back to the original argument, that 'inquiry' must be construed as used in a non-technical and popular sense in Section 107, because if 'inquiry' there is used in the technical sense, by Section 4 the idea of its being also 'a trial' is excluded ex vi termini since an inquiry is in effect defined as that which is not a trial. No doubt, if manifest absurdity or injustice ensued from treating 'inquiry' in any particular context as being used in the technical sense, the Court would feel itself at liberty to assume that the word is used in a looser and more popular sense. For reasons presently to be stated, I am of opinion that it is not necessary to decide this question, or to determine whether to deprive the accused of the right of having the evidence reheard by the Magistrate who is to determine his fate is so flagrantly oppressive as to call for the construction of the word 'inquiry' in the material sections in a different sense from that defined in the Code. By Section 117 it is enacted that
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.
It is argued that this only incorporates Chapters XX and XXI of the Code, which contain specific provisions applicable only to summons and warrant cases, respectively. But the Code contains many general provisions to be found outside these two Chapters which regulate matters of procedure in summons and warrant cases alike, such as the directions as to the manner in which evidence shall be received and recorded, the right of accused persons to be legally represented, and the like. I think the true interpretation of Section 117 is, that it requires the whole of the procedure in a summons or warrant case respectively to be adopted by the tribunal which inquires into a security case. It is an essential part of that procedure to make provision for the contingency, common to all, of a case coming in the first instance before one Magistrate and afterwards, before its conclusion, before another. I am of opinion, therefore, that the accused has the same right to have the witnesses recalled in a security as in a summons or warrant case; for that is not a substantive right, but a right relating to the procedure to be adopted. Accordingly I answer the reference in the affirmative.