K.C. Das Gupta J.
1. The accused Jhagru Tewari was convicted by a Magistrate of an offence under Section 325 of the Indian Penal Code on a charge of having caused grievous hurt to one Rajendra Nath Biswas. He was sentenced to rigorous imprisonment for one year and also to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for six months more. It was ordered that out of the fine, if realised, Rs. 500/- would be paid to Rajendra Nath Biswas. The appeal was dismissed by the Additional Sessions Judge, Burdwan.
2. The prosecution case was that on 27-10-1956 at about 7 O'clock in the morning when Rajendra Nath Biswas was on his way to the Colliery from his quarters this petitioner who had been lying in ambush suddenly attacked him and inflicted numerous injuries including fractures of some of the bones. The injured man was taken to the Colliery hospital and from there he was taken to Sanctoria hospital. A charge sheet under Section 307 of the Indian Penal Code was submitted against him by the Police after investigation and the Magistrate started enquiry in accordance with the provisions of Section 207A of the Code of Criminal Procedure. After four witnesses had been examined by him, the Magistrate was of opinion that the evidence and documents did not disclose any grounds for committing the accused for trial, but he was of opinion that the accused should be tried before himself on a charge under Section 325 of the Indian Penal Code. Accordingly, he framed a charge under Section 325 of the Indian Penal Code against the accused for having caused grievous hurt to Rajendra Nath Biswas.
3. The accused pleaded not guilty to this charge. The Magistrate then fixed 22nd of May 1957 for cross-examination of the witnesses already examined on behalf of the prosecution in the enquiry and fixed 23-5-1957 for evidence of further prosecution witnesses. Ultimately, those four witnesses were cross-examined on several dates and thereafter seven more witnesses were examined on behalf of the prosecution and cross-examined on behalf of the prosecution and cross-examined on behalf of the accused. Thereafter, the accused was examined under Section 342 of the Code of Criminal Procedure; no defence witnesses were examined; and after hearing arguments of both sides the learned Magistrate delivered judgment finding the accused guilty under Section 325 of the Indian Penal Code and sentenced him as aforesaid.
4. The appeal, as I have already said, was unsuccessful.
5. For proving the case against the accused the prosecution relied mainly on the evidence of Rajendra Nath Biswas and one Lethra who claims to have seen the occurrence as also on the statement of one Suchit who claims to have heard the name of the accused person as the assailant immediately after the occurrence. It appears that a telephonic message in connection with the occurrence was recorded at the Thana at 7.25 a.m. on that very date. According to the evidence, the message was sent by Sri K.B. Singh, Welfare Officer. The statement there is that one of the clerks while coming to the Colliery for work from his quarters was surrounded by some persons and was assaulted by them and the miscreants formed themselves into an unlawful assembly. Sri Singh in his evidence in Court has denied having given the message in this form. But it appears that he told the Investigating Officer that he got the report about the incident first from one Sanjoy Misra, Sanjoy has not been examined. The message given there does not implicate the accused and therefore there was no question of relying on it as against the accused person. The defence wanted to take advantage of this and the argument was naturally put forward that the real position was that there was a number of assailants, that they had not been recognised and thereafter the name of the present petitioner was put forward as the assailant, at the instance of the colliery management. That is undoubtedly an argument which is to be seriously considered, in view of the fact that the telephone message not only mentions no name of the assailant but said that a number of persons joined in the attack, while the case at the trial is that only one person, the present petitioner, was lying in wait and made an attack. In spite of this the learned Magistrate who had the opportunity of seeing the witnesses thought it right to accept the testimony of the eyewitnesses, and when one considers that it often happens that in giving a telephonic message of this nature sufficient care is not taken in giving an exact version and either an exaggerated or garbled account is often given. I am of opinion that the courts below cannot be said to have been in error in not attaching much importance to this message.
6. It is also urged that the presence of two punctured wounds on Rajendra's body shows that the witnesses' account of the petitioner having attacked Rajendra with a lathi cannot be correct. The doctor's evidence, however, is that one of these punctured wounds was caused probably by a fractured bone which fracture had been caused by a lathi and that the other punctured wound may well have been caused by a lathi blow. That being the doctor's evidence, I cannot see how it can be reasonably argued that the courts below acted arbitrarily in accepting the eye-witnesses as witnesses of truth in spite of the presence of the punctured wounds.
7. It is undoubtedly true that if an attack is made by persons who are not recognised there is often a chance of somebody who did not take part in the assault being falsely implicated. The decision whether an accused person has been falsely implicated or not has to be made by the Court on careful scrutiny of the evidence and on a consideration of all the circumstances. I am unable to agree with the learned Advocate for the petitioner that the courts below have not considered the really important circumstances or they have misdirected themselves in coming to the conclusion on the facts.
8. It was next contended that in any case the name of Suchit Tewary does not appear in the charge sheet that was submitted and that consequently he could not in law be examined as a witness. While the law no doubt requires that the report of the police officer submitted under Section 173 should include the names of the persons who are acquainted with the circumstances of the case and also requires that the statements recorded under Sub-section 3 of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses should be furnished to the accused, I can find nothing in the law that prevents the prosecution from producing, or the court from examining, as a witness in the case, a person whose name has not been included in the report made or whose statement has not been furnished. This view appears to have been taken in a decision of this Court in Criminal Revn. No. 640 of 1956 to which I was a party.
9. A more important question raised on behalf of the petitioner is whether after the learned Magistrate decided in accordance with the provisions of Section 207A (6) to try the accused himself, it was necessary that the four persons he had already examined as witnesses in the enquiry under Section 207A of the Code should he examined again by the prosecution, Quite clearly, the accused cannot be said to have been prejudiced at all by the fact that these persons were not examined again by the prosecution. Indeed, the accused is in a better position than he would have been if the enquiry had not taken place at all and a charge had been framed under Section 251A (3) and then these witnesses had been examined for the first time. It is urged, how ever, on behalf of the petitioner that the Code requires that once the Magistrate decides under Subsection (6) of Section 207A to try the person himself, the procedure laid down in Section 251A would apply in its entirety and that after framing the change the Magistrate has to follow the procedure laid down in Sub-sections (4), (5), (6) and (7) of Section 251A. Subsection (4) provides that the charge shall then be read and explained to the accused and he shall be asked whether he is guilty or claims to be tried. Sub-section (5) provides that if the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. Subsection (6) provides that if the accused refuses to plead, or does not plead, or claims to be tried, the Magistrate shall fix a date for the examination of witnesses. Sub-section (7) on which reliance is placed by the learned Advocate is in these words:
'On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution: 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.'
The argument is that the Magistrate was bound in law to follow the provision of Sub-section (7) strictly and to take all the evidence for the prosecution on that date.
10. A superficial view of the statute seems to support this contention. The legislature has laid down a special procedure for the trial of warrant cases instituted on police report in Section 251A and it is not open to the Court, it is suggested, to allow a deviation from the provisions made by the legislature. A little consideration, however, makes it clear that the legislature could not have intended that the procedure laid down in Section 251A must be followed in its absolute entirety in cases where the Magistrate decides to proceed to try the case himself under the provisions of Section 207A (6). The very first sub-section of Section 251A provides:
'When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall 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 them to be so furnished.'
These provisions are exactly similar to the provision' of Sub-section (3) of Section 207-A. Sub-section (2) of Section 251-A provides:
'If, upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.'
This, it is to be noticed, is exactly similar to the first portion of the provisions of Sub-section (6) of Section 207-A. Sub-section (3) of Section 251A provides that where on the document being considered, the Magistrate thinks that the accused has committed an offence which the Magistrate is competent to try and which can be adequately punished by him, he shall frame in writing a charge against the accused It seems clear that where a charge is being framed by a Magistrate because he is satisfied in an enquiry under Section 207-A that there is no ground for committing the accused for trial, but it appears that he should be tried before himself or some other Magistrate, and the Magistrate has not only examined the documents referred to in Sub-section (2) of Section 251A but has in addition taken evidence referred to in Sub-section (4) of Section 207-A, it is absurd to suggest that he cannot frame a charge against the accused after deciding that the trial shall be before him merely because he has taken into consideration the evidence referred to in Sub-section (4) of Section 207-A. It is true that Section 251A in its third sub-section does not permit the Magistrate to examine the witnesses before framing the charge but where the decision to try is made under Section 207A (6) the legislature by authorising the Magistrate 'to proceed accordingly' has authorised him to frame a charge for a suitable offence in such a case. The strict observance of Sub-section (3) in such a case would be impossible. It cannot be thought for a moment that that would make the trial irregular. Clearly, therefore, this departure from the strict observance of Sub-section (3) of Section 251A of the Code of Criminal Procedure is permitted. I can see no reason, therefore, why the further departure, namely, the non-examination by the prosecution again of the witnesses who have been already examined in the enquiry before the same Magistrate should be considered to vitiate the trial. It is well to remember the principle that the Court should avoid putting on the statute a construction which is inconvenient or unjust unless it is clear that this is the intention of the legislature. In my judgment, it cannot have been the intention of the legislature that in such a case where the Magistrate has decided to proceed with the trial himself under Sub-section (6) of Section 207A, the witness already examined should again be examined by the prosecution.
11. I have, therefore, reached the conclusion that the contention of the learned Advocate should be rejected. In my opinion, there is nothing to justify an interference with the order of conviction passed by the learned Magistrate.
12. It appears to me, however, that when the accused person is being sentenced to rigorous imprisonment for one year for the offence, it will not be proper in the circumstances of this case to pass a sentence of fine of Rs. 1000/-. On a consideration of all the circumstances, I think it will be proper to reduce the sentence of fine to one of Rs. 200/- only, in default rigorous imprisonment for two months. I would also order that this amount, if realised, would be paid to Rajendra Nath Biswas. I would not interfere with the sentence of imprisonment.
13. The petitioner who is on bail must surrender to his bail bond forthwith.
N.K. Sen, J.
14. I agree.