P. Chakravartti, C.J.
1. This Rule raises three important questions of construction regarding Section 207-A of the Criminal Procedure Code. The most important of them has already been the subject of a decision by a learned Judge of this Court, sitting singly as a trial Judge, but the petitioners contend that the view taken by him is not correct. The questions have arisen in the following way.
2. On 23rd of January, 1956, at about 1.30 and 2 A. M., there was an incident on board a steel barge, No. 4578A, in the midstream of the river Hooghly. Earlier in the night, the barge had delivered its cargo of salt at Mara Pora Ghat and the unloading having been completed by about 9 P. M., the members of its crew had gone to sleep after tying it up to a small steamer which was lying in anchor nearby. The crew were five in number, comprising a Manjhi and four Dandis, one of whom has also been called a Bhandari. It is alleged that at about 1-30 or 2 A. M., they were roused from sleep by loud sounds and on awaking found that the boat was drifting southwards and on it were twenty or twenty-five men, armed with weapons of various kinds. The raiders were recognised to be members of a Boatmen's Association who had declared a strike and had been for some time threatening loyal workers with violence. Several of them got down to the bottom of the boat and began trying to bore holes there with spikes and shovels, while others fell upon the members of the crew. Siddique, the Manjhi, was struck down with a sword-cut on the head and a blow on the right arm with a rod; Islam, the Bhandari, was struck in his abdomen with a sword and pushed into the water; and the three remaining men, Ayub, Rajik and Sukur, who were also assaulted jumped into the river to save their lives. Soon thereafter, a Head Constable of the River Traffic Police, named Ram Prit Chowdhury, who was on patrol duty, came up to the spot in a motor boat on hearing the row and on looking into the barge, found the Manjhi lying bleeding and unconscious. The Head Constable questioned the Manjhi as to what had happened and recovering consciousness for a while, the Manjhi was able to tell him of the attack on the barge. He was then sent to the Koilaghat Police Station. In the meantime, Rajik and Sukur had been able to swim ashore and Ayub had been picked up by a Nepali, named Bahadur. Ayub also was sent to the Koilaghat Police Station where he lodged an information. The dead body of Islam was subsequently recovered from the river and identified by his father and certain other persons. It was in a mutilated condition.
3. The Police arrested eight of the Petitioners on 23rd of January and produced them on 24th before the Chief Presidency Magistrate who directed them to be released on bail. On 27th January, the remaining three petitioners surrendered themselves before the Court and on 31st, they were directed to be similarly released. The Police thereafter continued their investigation.
4. The petitioners allege that, in all, the Police examined about 40 witnesses, but examination of the material witnesses among them was completed by 29th January, 1956.
5. Section 1 (2) of the Criminal Procedure Code provides that in the absence of any specific provision to the contrary, the Code snail not apply to the Police in the town of Calcutta, but the State Government may, by notification in the Official Gazette, extend to them any of its provisions. Only on 9th February, 1956, did the State Government extend, by a notification published in Calcutta Gazette of that date, Sections 154, 161, 162, 163, 172 and 173 of the Code to the Calcutta Police. Sections 165 and 167 had already been extended previously, but the remaining sections of Chapter XIV remained unextended.
6. On 10th April, 1956, the Police submitted their challan against the petitioners, charging them under Sections 149/302/437/34 of the Indian Penal Code. On the same date, the case was transferred to Mr. S. M. Chatterji for disposal.
7. Before the learned Magistrate, Mr. Chatterji, the prosecution prayed for an adjournment on the ground that copies of the documents referred to in Section 173 (4) of the Code which had to be furnished to the accused were not yet ready. Thereupon, the case was adjourned to 5th May. On 5th May, the learned Magistrate ascertained from the parties that the copies had been supplied and fixed 25th May for examination of witnesses.
8. On 20th July, 1956, before which examination and cross-examination of five of the prosecution witnesses had been completed, the petitioners made an application, praying that the prosecution might be directed to examine nine more witnesses named in the application as also the search witnesses or the learned Magistrate might himself take their evidence in the interest of justice. Among the witnesses named, were Rajik and Sukur who were said to be witnesses of the actual commission of the offence. The learned Magistrate directed the application to be put up after the prosecution had closed their evidence. The prosecution examined only one other witness, the Head Constable, and the application being put up thereafter, the learned Magistrate rejected it by an order passed on 7th August, 1956. He observed that having examined most of the witnesses of the actual commission of the offence alleged, the prosecution did not desire to examine any more witnesses in the proceedings for commitment and he himself was of opinion that it was not necessary in the interest of justice to take the evidence of any more witnesses at that stage.
9. The application of 20th July, 1956, was obviously on the basis that Section 207-A of the Code applied to the proceedings and the reliefs prayed for were on the basis of Sub-section (4) of the section. On 21st August, 1956, the petitioners made a further application whereby they complained that Section 207-A had been interpreted and applied to their case in a way which was contrary to its spirit and they prayed that the learned Magistrate might examine the witnesses mentioned in the application. The list of witnesses given was not wholly the same as that given in the previous application. The application was heard on the same day that it was filed and during the hearing, it was for the first time contended on behalf of the petitioners that Section 207-A did not apply to the case at all, inasmuch as the Police investigation had not been and could not have been under Chapter XIV of the Code from the beginning. The learned Magistrate over-ruled the contention in the view that before the challan was submitted, Section 173 of the Code had been extended to the Calcutta Police and therefore the challan was a report under Section 173 which was sufficient to attract Section 207-A. As to the prayer for the examination of some more witnesses, the learned Magistrate reiterated the view expressed by him on the first application and observed that he saw no reason to review his previous order.
10. Thereafter, the petitioners moved this Court on 3rd September, 1956 and obtained the present Rule.
11. At the hearing of the Rule it was contended on behalf of the petitioners by Mr. Ajit Kumar Dutt that Section 207-A of the Code could not at all apply to cases instituted on a report made by the Calcutta Police; that, in any event, it would not apply where the whole of the investigation had not taken place after the notification of 9th February, 1956; that if the section applied, the prosecution was bound under Sub-section (4) to examine all the witnesses of the actual commission of the offence, which they had not done in the present case; and that even if they were not so bound, the learned Magistrate was required by the same sub-section to examine for himself, in the interest of justice, those of such witnesses whom the prosecution had not examined and that, he had exercised his discretion wrongly in refusing to examine the witnesses named by the petitioners. As some of the questions raised appeared to us to be of a fundamental character and our decision on them would affect all proceedings instituted at the instance of the Calcutta Police, we thought that the State ought to be represented by the Advocate-General and accordingly we adjourned the case for 10 days in order to enable the State to instruct the Advocate-General to appear, if they desired to instruct him. The learned Advocate-General did appear on the next date and we had the benefit of his assistance on the general questions of law.
12. Taking the first point first, Section 207-A occurs in Chapter XVIII of the Code which deals with enquiry into cases triable by a Court of Sessions or the High Court. Section 207 provides that in every enquiry, preparatory to commitment, relating to such cases, the Magistrate shah'
'(a) in any proceeding instituted on a Police report, follow the procedure prescribed in Section 207-A; and
(b) in any other proceeding, follow the procedure specified in other sections of this Chapter'.
Although Clause (a) of Section 207 uses the somewhat general expression 'police report', Section 207-A is more specific and begins by saying that 'when in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173', he shall proceed in the manner laid down in the section. Section 173 occurs in Chapter XIV of the Code which deals with information to the Police and their power to investigate, without any order of a Magistrate in the case of cognizable offences and under the order of Magistrates of certain specified classes in the case of offences of a non-cognizable character. The section in Chapter XIV which gives the Police the power to investigate cognizable cases is Section 156 and the section which gives them a limited power to investigate non-cognizable cases is Section 155 (2).
The making of a report upon the completion of the investigation is provided for in Section 173. That section says that 'every investigation under this Chapter' shall be completed without unnecessary delay and as soon as it is completed, the Police shall 'forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the State Government'. The report under Section 173 is thus a report on the results of the investigation made under 'this Chapter', i.e. Chapter XIV, which means an investigation made under Section 155 (2) or Section 156. The State Government's notification published on 9th February, 1956, did not extend either of those sections to the Calcutta Police though, it extended Section 173. Confining themselves to cognizable cases, the petitioners contend that the extension of Section 173 to the Calcutta. Police without an extension of Section 156 was meaningless and since, not having ever been empowered to make any investigation under Section 156, the Calcutta Police could not make any investigation under Chapter XIV, they could not possibly make any report under Section 173 and therefore no Magistrate could receive from them a report forwarded under that section. If so, in no case instituted on a report made by the Calcutta Police could Section 207-A apply, because under the clear words of the section itself, the condition precedent to its applicability is the receipt of a report under Section 173.
13. The learned Advocate-General first sought to meet this argument by a short answer. He pointed out that all that Section 207-A spoke of was a report 'forwarded under Section 173'. According to him, after Section 173 had been extended to the Calcutta Police, any report forwarded by them to a Magistrate would have to be forwarded under that section and if a Magistrate received a report so forwarded, the condition laid down in Section 207-A would be satisfied, irrespective of the nature of the investigation held. There are several reasons for which I find it impossible to accept that contention. It is true that the challan in this case was submitted after the extension of Section 173 to the Calcutta Police, but it does not even purport to have been forwarded under Section 173. It is an ordinary challan of the type usually submitted by the Calcutta Police and sent in the ordinary form and the ordinary way. In the-next place, a 'report forwarded under Section 173' must be a report such as Section 173 itself contemplates and, unquestionably, the report contemplated by Section 173 is a report made on the completion of an investigation under Chapter XIV. To say that any piece of writing in the nature of a report sent by the Police will be a report forwarded under Section 173 within the meaning of Section 207-A, if only they state that they are forwarding it under that section appears to me to be an extravagant contention. Nor do I see why any report sent by the Calcutta Police after the extension of Section 173 of the Code to them must necessarily be a report made and forwarded under that section. Even before the extension, the, Calcutta Police had been making investigations as to cognizable offences without any order from a Magistrate and submitting reports in the form of a challan and cognizance of offences, so reported, was being taken by Magistrates on such reports. It is undoubtedly strange that the Calcutta Police Act, which is the only Act to fill up the void created in Calcutta by the exclusion of the Code, should not contain any specific provision, like Section 59 of the Bombay City Police Act, empowering the Police to investigate cognizable offences. Indeed, it does not contain any specific provision empowering the Police to investigate any offences at all. Our attention was drawn to the decision of this Court in the old case of Bijoyendra Lal Mitter v. Emperor, 7 Cal WN 883 (A), where the power to investigate was held to be derived from Circular Orders issued by the Commissioner of Police from time to time under Section 9 of the Act, which authorises the Commissioner to frame orders and regulations for, inter alia, 'rendering such force (i.e. the Police-force) efficient in the discharge of its duties'. With respect, what the learned Judges intended to say is not very clear, for, while they say on the one hand that circular orders authorising the Calcutta Police to inquire into various matters may come within the scope of such a purpose, they say on the other hand that whether acts, done under those orders, can be treated as acts done or intended to be done under the Calcutta Police Act, remains a question. Since they were dealing with a prosecution of an officer of the Calcutta Police on a charge of wrongful confinement, it was perhaps sufficient for them to find that in detaining the complainant in custody, the accused had acted under the power purported to have been conferred on him by a Circular Order of the Commissioner of Police and therefore he had acted in good faith under what he believed to be a power possessed by Mm under the Act. Speaking for myself, I think that a provision authorising the Commissioner of police of frame orders for rendering the Police-force efficient in the discharge of its duties can only empower him to make rules for ensuring that the members of the force will perform efficiently the duties which the Act authorises and requires them to perform, but it cannot empower him to create powers and confer them on members of the force. If the power of the Calcutta Police to make investigations is to be sought in the Calcutta Police Act, it can perhaps be found only in Section 10A(1)(b) which makes it the duty of every police officer to obtain intelligence concerning the commission of cognizable offences and to lay such information and take such other steps as are test calculated to bring offenders to justice. It is perhaps also implied in Section 78A which speaks of a Police Officer coming to have reason to believe 'in the course of any investigation' that a cognizable offence has been committed and of his power to require the attendance of any person before himself or before another officer 'who is investigating a cognizable offence.' But whatever the precise source of their power to investigate and make reports may be, the Calcutta Police must be presumed to have been lawfully exercising that power before Section 173 of the Code was extended to them and I can find no reason for thinking that, after the extension, that power ceased to exist. The learned Advocate-General contended that any previous law under which the Calcutta Police had been submitting reports of cognizable offences before the extension of Section 173 of the Code to them, must be deemed to have been repealed by the extension. I am entirely unable to see how the extension of Section 173 could have such effect. The extension only made it the duty of the Calcutta Police to forward a report under Section 173 in cases where they made an investigation under Chapter XIV for which, by the way, no power was conferred but it could not possibly take away any power to investigate and make reports under other laws which the Calcutta Police may already have bad. Indeed, Section 1(2) of the Code says specifically that in the absence of any specific provision to the contrary, 'nothing herein contained' --& Section 173 is contained in the Code-- 'shall affect any special or local law now in force, or any special jurisdiction or power conferred or any special form of procedure prescribed by any ether law for the time being in force'. There is no specific provision anywhere which says that on the extension of Section 173 to the Calcutta Police, their jurisdiction and power under other laws to investigate cognizable offences and make reports thereon shall no longer subsist. For all these reasons, I must overrule the learned Advocate-General's contention, that the challan submitted in the present case could only have been a report forwarded under Section 173 of the Code.
14. The learned Advocate-General next invoked a canon of construction. He contended that where it appeared that if the language of a statute was taken in its literal sense, the obvious purpose of the enactment would be defeated or some manifest inconvenience or absurdity would result, the Courts would bend the language in order to give it a meaning rather than give effect to its normal significance and reduce the law to a nullity. In support of that proposition, reliance was placed on the decision in The King v. Vasey, (1905) 2 K. B. 748 (B). The principle contended for by the learned Advocate-General has undoubtedly been applied by Courts in England as well as in this country, although there is another body of judicial opinion of equal authority in favour of the view that if there is a defect or an omission in an Act, it is not for the Courts to remedy the defect or make good the omission by a kind of judicial amendment of the law, but the proper course is to declare the defect and leave it to the Legislature to amend the Act, if it will. The question of applying any principle of construction does not, however, arise in this case. The learned Advocate-General's contention was that since the extension of Section 173 to the Calcutta Police, which required them to submit a report after making an investigation under Chapter XIV of the Code, without an extension of Section 156 which gave the power to investigate, created a position of manifest absurdity, it should be held, by applying the canon of construction he invoked, that Section 156 also had been extended by implication. That contention overlooked the fact that the notification of the State Government by which certain sections of the Code had been extended to the Calcutta Police was not a statute and therefore to call in aid principles of the interpretation of statutes was pointless.
15. It appears to me that there is no means of getting out of the fact that Sections 155 (2) and 156 of the Code have not been extended to the Calcutta Police and no means of making out that they can hold any investigation under Chapter XIV. If they cannot make an investigation under that Chapter, they cannot examine any person under Section 161 and cannot have any occasion to maintain a diary under Section 172, because both Section 161 and Section 172 speak of 'an investigation under this Chapter.' Equally, Section 162 cannot apply to any statement made to them by any person, because the requirement that there must be 'an investigation under this Chapter' is a requirement of that section as well. It is true that, Sections 161, 162, and 172 have been specifically extended to the Calcutta Police, but in the absence of an extension of Sections 155(2) and 156, the result has been only to create an odd position. In taking the view that Section 207A applied to the proceedings in the present case, the learned Magistrate relied on a decision of Sen, J., given as the presiding Judge of a Sessions trial, which has since been reported as The State v. Joydeb Chandra Das, in 61 C. W. N., 248 (C). In the case relied on, the learned Judge held that although Chapter XIV had not been made applicable to the Calcutta Police in its entirety, the essential provisions relating to an investigation by the Police in cognizable cases had been extended to them and therefore from the date when the notification of the extension of those provisions came into force, the Calcutta Police would be bound to investigate cases under the provisions of Chapter XIV. With respect, I am unable to agree in that view. The correct view, in my opinion, is that after the notification had come into force, the Calcutta Police would find that in the absence of an extension of Section 156 the extension of Sections 161, 162 and 172 had been useless and since their powers under the Calcutta Police Act had not been taken away, they would have to continue to make their investigations into cognizable offences under that Act, If that be the true position, as in my view it is, no report by the Calcutta Police can, even after the notification published on the 9th February, 1956, be a report under Section 173, because that section presupposes in clear words an investigation under Chapter XIV. The omission to extend Section 156 and also Section 155(2) does not appear to have been accidental, because the State Government selected certain sections out of Chapter XIV for extension to the Calcutta Police and therefore must have excluded the other sections deliberately for certain reasons present to their minds. Courts must give effect to the legal consequence of the exclusion. The consequence is that there can really be no report by the Calcutta Police under Section 173, although the section has been extended to them and since no Magistrate can receive from them a report made and forwarded under that section, he cannot apply to any case instituted on a report by the Calcutta Police the provisions of Section 207A.
16. It was however contended that Section 207(a) made the procedure prescribed by Section 207A applicable to 'any proceeding instituted on a police report' and therefore if any proceeding could be shown to have been instituted on a police report, nothing else would be required to establish that Section 207A was applicable to it. Section 207A, it was pointed out, itself commenced with the words 'when, in any proceeding instituted on a police report', On that contention being raised, there was a great deal of argument before us as to the true meaning of the expression 'police report', as used in the Code in Section 207(a) and elsewhere and the question debated was whether the expression meant only reports made by the Police under Section 173 or it included their reports in other cases as well, where cognizance on such reports could be taken. The petitioners contended for the narrower meaning and the State for the wider. According to the petitioners, 'police report'., at least in Section 207(a) and 207A, meant reports of cognizable offences or non-cognizable offences investigated under the order of a Magistrate and therefore the application of Section 207A was limited to cases where cognizance was taken on such reports.
17. In my view, the larger question as to whether Section 207A applies to cases other than cases of cognizable offences reported by the Police or non-cognizable offences investigated under the order of a Magistrate does not arise directly for decision in the present case. In the present enquiry as to the applicability of Section 207A, the question is not one between cognizable and non-cognizable offences reported by the Police of their own morion, but it is whether, even in a case of a cognizable offence, the section would apply, when the offence is reported by the Calcutta Police. But perhaps the larger question is indirectly involved in the case in this way. Since the Police cannot investigate a non-cognizable offence under Chapter XIV of the Code without an order from a Magistrate and since the Calcutta Police cannot investigate even cognizable offences under Chapter XIV at all, cases of non-cognizable offences reported by the general Police when there is no order of a Magistrate and cases of even cognizable offences reported by the Calcutta Police are in the same position and therefore if cases of non-cognizable offences, triable by the Court of Session and reported by the general Police of their own motion, can be shown to be within the ambit of Section 207-A, cases of cognizable offences reported by the Calcutta Police will necessarily be within its ambit.
18. Whatever the expression 'police report' may generally mean, it is clear that in Section 207-A, it cannot mean anything else than a report by the Police of an offence in regard to which there- can he an investigation by them under Chapter XIV. The section does not merely contemplate a proceeding instituted on a police report, but contemplates further that a report forwarded under Section 173 has been received. Of its own force, therefore, the section applies only to cases where there has been an investigation under Chapter XIV, because unless there is such an investigation, there cannot be a report under Section 173. The 'Police report' which the section contemplates cannot therefore be a report of a case in respect of which no investigation under Chapter XIV has taken place or is possible. It is not the report under Section 173, because the opening clause of the section contemplates two stages and it is only at the second stage that the report under Section 173 comes. The words 'when, in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173' clearly imply that first a proceeding is instituted on a police report and subsequently, in that proceeding, a report forwarded under Section 173 is received. The report on which, in the view of the section, the proceeding is instituted would' seem to be the report under Section 157 in the case of cognizable offences and, in the case of non-cognizable offences, a report by the Police upon which the Magistrate directs them to make an investigation. But in both cases there has to be an investigation under Chapter XIV, because there has to be a report under Section 173. The expression police report' in Section 207-A thus provides no warrant for saying that the section applies even to cases where; there cannot be any investigation under Chapter XIV, provided only they are instituted on a police report. Of its own force and under its own language, the section applies only to cases where there can be a report under Section 173.
19. Nor, I think, can it be said that Section 207 (a) enlarges the scope of Section 207-A. It may plausibly be contended -- in fact I myself threw out the suggestion in the course of the argument -- that while Section 207-A applies directly only to those proceedings instituted on a police report where there can be an investigation under Chapter XIV, Section 207 (a) extends the section to all other proceedings which can be instituted on a police report under Section 190(1)(b) as amended. The language of Section 207 (a), it may be said, is not that Section 207-A 'shall apply', but only that the Magistrate shall 'follow the procedure specified in Section 207-A', so that what the section means is that even in those proceedings instituted on a police report to which Section 207-A would not directly apply, the procedure prescribed by that section shall be followed. It may be said further that unless Section 207 (a) is so construed, no provision can be provided from the Code for those proceedings instituted on a police report where there can be no investigation under Chapter XIV and to which Section 207-A would not apply. The 'other provisions' of Chapter XVIII are made applicable by Section 207, (b) only to 'any other proceeding', which must mean proceeding other than a proceeding instituted on a police report and Section 208, with which the 'other provisions' begin, itself says that the procedure prescribed thereby is to be followed 'in any proceeding instituted otherwise than on a police report'. No proceeding instituted on a police report can therefore be governed by the 'other provisions' and so it may be contended that to those proceedings instituted on a police report and relating to offences triable by a Court of Session to which Section 207-A does not directly apply, the Code makes the procedure of that section applicable by Section 207 (a). On further consideration I think that this contention will not bear examination.
20. Practically, the whole of this contention is based on the expression police report', as occurring in Sections 207 (a) and 208. The argument is that it means and includes all kinds of reports made by the Police on which cognizance can be? taken under Section 100(i)(b) and a case instituted. If so, the effect of Section 207 (a) is to provide that the procedure prescribed by Section 207-A shall apply to all cases of offences triable by a Court of Session of which cognizance is taken on a report made by the Police and not merely to cases of cognizable offences among them or of non-cognizable offences with respect to which there has been a Magistrate's order to investigate. And the effect of Section 207, (b), read with Section 208, is that the procedure proscribed by the latter and some subsequent sections shall apply to cases of offences triable by a Court of Sessions of which cognizance is taken otherwise than on a police report, i.e. under Section 190 (1) (a) on a complaint or under Section 190 (1) (c) on information received from some private party or on the Magistrate's own knowledge or suspicion.
21. For reports made by the Police, the present Code uses three expressions, 'police report' (Sections 133, 145, 147, 170, 173, 207, 207-A and 208), 'report of a police officer' (Sections 4(1)(h) and 114) and 'report in writing made by any police officer' (Section 190 (1) (b)). The expression 'police report' does not bear the same meaning in all the sections where it occurs and for the purposes of the present discussion, Sections 133, 145 and 147 may be left out of account. It no longer appears in Section 190 (1) (b), but it did appear there before the amendment of the Code in 1923 when, instead of its present language, 'upon a report in writing of such facts by any police officer'', the language of the clause was 'upon a police report of such facts'. The 'police report' of such facts, i.e. facts constituting an offence, on which a Magistrate could take cognizance under the old Section 190 (1) (b) was held by several High Courts to be not any communication by a police officer of any offence, but only a formal report of cognizable offences made after investigation. The case most frequently cited as illustrative of that view is King Emperor v. Sada, ILR 26 Bom 150 (D), a Full Bench decision of the Bombay High Court which followed an earlier decision of the same Court, given with respect to the corresponding provision in the Code of 1861. The Madras, Lahore and Patna High Courts favoured the Bombay view, though in the case of the Patna High Court, the opinion was not uniform. The reason for the view, so far as ft can be gathered, was that the Code gave no authority to the Police to make a report of their own motion regarding a non-cognizable offence and therefore in providing by Section 190 (1) (b) that a Magistrate could take cognizance of an offence on a 'police report', it could have contemplated only such reports as the Police Bad power to make, i.e., reports of cognizable offences made under Section 173. Any other report of an offence made by a Police Officer would be no 'police report' within the meaning of Section 190 (1) (b), arid could only be a complaint. But the definition of 'complaint' excluded a 'report of a police officer'. A complaint is an allegation of an offence made to a Magistrate orally or in writing with a view to his taking action under the Code. Since cognizance of an offence could also be taken on a complaint under Section 190 (1) (a), it was thought that there could be no reason for excluding from the definition of 'complaint' a report of a police officer, which also was an allegation of an offence in writing, unless, under the Code, cognizance could be taken on such report otherwise. Consistently with the view taken of the meaning of 'police report' in Section 190 (1) (b), it was therefore held by some other High Courts in several cases that what the definition of 'complaint' excluded was not every report of a police officer, but only such reports as were 'police reports' within the meaning of Section 190 (1) (b) and On which cognizance of the offence reported could be taken under that section without their being treated as complaints. What was excluded by the definition of complaint was thus only what was included in Section 190 (1) (b) and the two provisions were complementary to each other. The effect of that view was to take 'report of a police officer' in Section 4 (1) (h) as synonymous with 'police report' in Section 190 (1) (b), both being equally restricted in meaning and both covering only reports of cognizable offences. It may be pointed out that though a report of a non-cognizable offence made by the Police after a Magistrate has directed them to investigate it is not expressly mentioned in the cases, such reports also would obviously be included in 'police report' and 'report of a police officer' in view of the reasoning on which the cases are based.
22. It appears that this Court did not definitely hold in any case that 'police report' in the old Section 190 (1) (b) did not include a report of a non-cognizable offence made by a police officer on his own motion. In In re Nagendra Nath Chakravarti : AIR1924Cal476 , Mookerjee and Chatterjee, JJ. undoubtedly proceeded on that view, but they did so on the assumption that in three cases cited by them, the expression 'police report' had been 'interpreted in this Court to mean a police report within the meaning of Section 170'. From the cases themselves it would appear that the assumption was incorrect. In Abdulah Mandal v. Emperor, ILR 40 Cal 854 (F), the first case cited, the report was one of a cognizable offence and all that was said that there having been a report by the police under Section 173, the Magistrate to whom the report was made could have taken cognizance of the offence, which he had not done. In E. O. Lee v. H. L. Adhikary, 14 Cal WN 304 (G), the second case, the report was again of a cognizable offence and all that the Court said was that a police report under Section 173 must set forth the nature of the information against the accused. In the third case, Harihar Roy v. King Emperor, 23 Cal WN 481: ILR 40 Cal 810n: (AIR 1919 Cal 383) (H), what was held was that the report in that case, which was a report of a non-cognizable offence was either a police report within the meaning of Section 190 (1) (b) or a complaint and even if it was the latter, omission to examine the police officer on oath was only an irregularity. In none of these cases or indeed in any other case where the matter was considered, did this Court hold, either directly or indirectly, that 'police report', as contemplated by Section 190 (1) (b), was limited to reports made under Section 173. Indeed, the view taken in 23 Cal WN 481: ILR 46 Cal 810n: (AIR 1919 Cal 383) (H), is typical of the view generally taken in this Court. In Bhairab Chandra v. Emperor, ILR 46 Cal 807: (AIR 1919 Cal 433) (I), for example, it was again: held that a report made by a police officer of a non-cognizable offence was either a police report, as contemplated by Section 190 (1) (b), or a complaint.
23. In the above state of judicial opinion, Section 190 (1) (b) was amended in 1923 and For the words 'upon a police report of such facts', the words 'upon a report in writing of such facts made by any police officer' were substituted. Simultaneously, the proviso to Section 200 of the Act was amended by the insertion of a new clause, termed 'aa', which reads as follows :
'(aa) When a complaint is made in writing, nothing herein contained shall be deemed to require the examination of the complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties.'
The definition of 'complaint' in Section 4 (1) (h) continued to exclude 'the report of a police officer'. If the word 'such' in the amended Clause (b) of Section 190 (1) is resolved into its antecedents and the clause is read along with the opening paragraph of the section, it will be found to provide that any Magistrate of any of the specified categories 'may take cognizance of any offence upon a report in writing of facts which constitute such offence made by a police officer'. Although the words 'any offence' occurred in the opening paragraph of the section even before, it had been held that as respects taking cognizance on a report made by the Police, their connotation was restricted by the words 'police report' to offences of a cognizable character. Obviously, the Legislature did not] desire that in taking cognizance of offences on reports made by the Police, Magistrates should be so restricted and accordingly it removed the words which were causing the restriction. The amendment did away with the words 'police report' and, in their place, inserted other words of the widest possible content. The effect of the amendment was to empower Magistrates of the specified categories to take cognizance of any offence on a report made by the Police, whether it was a cognizable or a non-cognizable offence and whether the report was a report under Section 173 or not. Since cognizance could now be taken under Section 190 (1) (b) of any offence on a report made of it by the Police, another effect of the amendment was that no report of an offence made by the Police would any longer be a 'complaint', on which cognizance would have to be taken, if taken at all, tinder Section 190 (1) (a). The definition of 'complaint' which, by excluding 'the report of a police officer', was formerly understood to exclude only reports of cognizable offences, would not exclude all reports of an offence made by the Police. In Public Prosecutor v. Ratnavelu Chetty, ILR 49 Mad 525: (AIR 1926 Mad 865) (J), the Madras High Court held that by virtue of Section 190 (1) (b), as amended, and Section 200 (aa) of the Criminal Procedure Code, Magistrates mentioned in Section 190 were entitled to take cognizance of even non-cognizable offences upon a report) in writing by a police officer without examining the officer on oath. While the actual decision is undoubtedly correct, the reference to Section 200 (aa) appears to me, with respect to be unnecessary and misconceived. Proviso (aa) to Section 200 presupposes that there is a complaint and only provides that when the complaint is by a Court or a Public servant, acting or purporting to act in the discharge of his official duties, the complainant need not be examined on oath. Since the amendment of Section 190 (1) (b), a report by a Police Officer of even a non-cognizable offence is not a complaint and cognizance of the offence reported can be taken on it just as on a report of a cognizable offence. It is thus impossible to see how any question of examining the police officer on oath can at all arise and how application of proviso (aa) to Section 200 is called for. The proviso is obviously intended to apply only to regular complaints, such as complaints by a Court or a public officer under Sections 195 and 476 of the Code.
24. To revert now to the argument of the respondent, it is based, as I have already pointed out, almost entirely on the expression 'police report', as used in Sections 207, (a) and 208. The present Section 207 is wholly new, having been introduced by the amending Act of 1955 and the opening words of Section 208 where the expression police report' occurs are also new, having been introduced by the same Act. It is clear that unless the expression 'police report' in the phrase 'in any proceeding instituted on a police report' in Section 207 (a) and in the phrase 'in any proceeding instituted otherwise than on a police report' in Section 208 can be construed to mean any report of an offence made by the Police, whether a report under Section 173 or not, the respondents argument must fail. In my view, such wide construction of the expression 'police report' is excluded by more than one circumstance. It is true that cognizance may now be taken of, and a case instituted regarding, any offence on a report thereof made by the Police, but the language used in Section 207, (a) does not warrant the view that all cases so instituted, are covered by the provision. It is to be remembered that the expression 'police report' in the old Section 190 (1) (b) had been held to limit the section to cognizance of offences reported by a report under Section 173. Obviously, the Legislature accepted that construction of the expression and desiring to extend the scope of Section 190 (1) (b) to taking cognizance of all offences on reports of all kinds made by the Police, it removed the words which were having a restrictive effect on the section and substituted for them other words of a plainly all embracing character. It is to be noticed that the Legislature did not seek to enlarge the scope of the section by adding an explanation of the words 'police report', but eliminated them altogether. The view of the Legislature must therefore have been that the expression 'police report', as used in regard to reports of offences, did carry the limitation of being only reports made under Section 173 of offences in respect of which there could be an investigation under Chapter XIV. But the Legislature did not desire Section 190 (1) (b) to remain under the limitation resulting from the words 'police report' and, in 1923, replaced them by wider words. It made the change only in Section 190 (1) (b) which occurs in Chapter XV, but left the expression untouched in Sections 170 and 173 which occur in Chapter XIV and thereby gave another indication of its view that the expression was limited to reports of cognizable offences and of non-cognizable offences when there was an order by a Magistrate to investigate them. Such being the view of the Legislature, it is particularly significant that when amending the Code further in 1955, it used the same expression 'police report' in enacting the new Section 207 and amending the old Section 208. If it intended that what it was including in Section 207 (a) and excluding from Section 208 should be co-extensive with the amended Section 190 (1) (b) and intended cases instituted on a report made by the Police, as contemplated by those sections, to be all cases of which cognizance could be taken under Section 190 (1) (b) on such report, there could be no reason why it should not have used in Sections 207 (a) and 208 words similar to those substituted in Section 190 (1) (b), but on the other hand, used in them the old expression 'police report' which it had recognised to be an expression of a restricted content, as held by the Courts. The clear effect of the use of the expression 'police report' in Sections 207 (a) and 208 after it had been previously removed from Section 190 (1) (b) on the ground of its limited meaning is that the Legislature intended Section 207 (a) to be as restricted in scope as Section 109 (1) (b) had been before its amendment. 'Where legislation, supervening en a practice which has grown up and become generally recognised, repeats words on which the practice was founded, it may be inferred that Parliament intended those words to be understood in their previously accepted meaning' : Halsbury's Laws of England, Hailsham Edition, Vol. XXXI, p. 492, referring to Income Tax Special Purposes Commissioners v. Pemsel, (1891) AC 531 (K), and Local Government Board v. Alridge, (1915) AC 120 (L). And again, 'when the words of an old statute are either incorporated in, or by reference made part of, a new statute this is understood to be done with the object of adopting any legal interpretation which has been put upon them by the Courts: Maxwell's Interpretation of Statutes, Ninth. Edition, p. 315 referring to Dale's case, (1881) QBD 376 at p. 453 (M), and other cases. In the present case, it is not merely that the words of an old statute, which had been judicially construed in a certain sense, have been incorporated in a statute in pari materia of a later date, but words which had been eliminated from a certain section of a statute on account of the judicial construction of their meaning, have been used again in amendments of the same statute and used in connection with the same subject-matter. The conclusion must accordingly be that the Legislature intended the words, as used in the amendments, to bear the restricted meaning that had been judicially put upon them. Section 207 (a), when it speaks of 'any proceeding instituted on a police report', must therefore be taken to mean proceedings instituted on a report made under Section 157, and, similarly, when Section 208 speaks of any proceeding instituted otherwise than on a police report, it must be taken to mean proceedings instituted on a complaint or on information received from any person other than a police officer or on the Magistrate's own knowledge or suspicion or on a report made by the Police other than a report under Section 157.
25. I think I ought to point out here that in the cases where the expression 'police report', as occurring in the old Section 190 (1) (b), fell to be construed, the initial report on which cognizance could be taken, was taken as the report under Section 173 without making any distinction between that report and the report under Section 157. For the purposes of the question considered in those cases, the distinction was not necessary, because both were reports made upon an investigation under Chapter XIV. The distinction is necessary in the case of the new Section 207-A, because it contemplates, as I have already explained, two reports, the second of which is the report under Section 173 and the first of which must be the report under Section 157, when Sections 207-A and 208 speak respectively of a case instituted on, and otherwise than on, a Police report, it is clearly the report under Section 157 that they contemplate.
26. Of such meaning of Sections 207 (a) and 208, there is other internal evidence. The expression 'police report' occurs in Section 207-A as well and besides occurring in the body of the section, it occurs in the marginal note which describes the subject-matter of the section as 'Procedure to be adopted in proceedings instituted on a police report.' At one time, the marginal note was regarded as no part of a section, but the rule was founded on the legislative practice of those times under which a. Bill, as presented before Parliament and passed by it, bore no marginal notes or punctuation marks which were inserted afterwards without the authority of Parliament. The practice has since changed and now the Bill, as presented before the Legislature, bears marginal notes to the sections or headings of them and it is passed with such notes or headings. Even formerly, the marginal note was not 'always rejected. It was, for example, said by Collins,. M. R. in Bushell v. Hammond, (1904) 73 LJ KB 1005 at p. 1007 (N), that although the side-note formed no part of a section, it was nevertheless of some assistance, inasmuch as it showed the drift of the section. In the present case, the Bill which became Act 26 of 1955 contained marginal notes and, accordingly, reference to the marginal note to Section 207-A is legitimate. I have already shown that as used in the body of Section 207-A, the expression 'police report' cannot mean anything else than a report by the Police of an offence, in regard to which, there can be an investigation by them under Chapter XIV. Since the marginal note to Section 207-A says that the section is concerned with the 'procedure to be adopted in proceedings instituted on a police report' and since Section 207 (a) says that the Magistrate shall 'in any proceeding instituted on a police report, follow the procedure specified in Section 207', there is no good reason to think that in spite of the complete identity of the language used, Section 207 (a) contemplates proceedings different from and in addition to those contemplated by Section 207-A.
27. The same result is reached if one tries to apply Section 207-A to proceedings in which there has not been and cannot be an investigation under Chapter XIV and the report is a report of a cognizable offence or a non-cognizable offence in regard to which there has been no order for investigation by a Magistrate. The very first clause of the section requires that there should be a report under Section 173, but where there can be no investigation under Chapter XIV, there can be no such report. If there is no report under Section 173, the Magistrate' cannot even take the first step under Section 207-A and cannot even fix a date for the commencement of the enquiry. Then again, neither Sub-section (3), nor Sub-section (6) of the section can be complied with. The first sub-section requires the Magistrate to satisfy himself that the documents referred to in Section 173 have been furnished to the accused and the second sub-section requires him to consider those documents. The documents referred to in Section 173 are mentioned in Sub-section (4) of the section and they are 'a copy of the report forwarded under Sub-section (1) and of the first information report recorded under Section 154 and all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under 8. 164 and the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as witnesses.' Where the alleged offence is such that the police has no power to investigate it under Chapter XIV, there cannot possibly be any report forwarded under Section 173(1) or any first information report recorded under Section 154 or any statement recorded under Section 161(3). There can only be other documents, if any, on which the prosecution wishes to rely. It is true that neither Section 173(4), nor Sub-sections (3) and (6) of Section 207A can be said to contemplate that in every case there must be all the documents specified in Section 173 (4). There may not be, for example, even in a case of a cognizable offence, any first information report at all or any confession or statement recorded under Section 164. The sections must be construed to mean that the accused must be furnished with copies of such of the documents specified in Section 173(4) as exist in a case, that at the commencement of the enquiry the Magistrate must satisfy himself that they have been furnished and that he himself must consider such documents. At the same time, it is impossible to conceive of the Legislature having intended that the procedure prescribed by Section 207A would apply even in cases where none of the documents specifically mentioned in Section 173 (4), except confessions or statements to a Magistrate, could possibly exist and could possibly be supplied to the accused and where two material parts of the procedure could not possibly be observed. If the procedure prescribed by Section 207A is sought to be applied to cases where there has been no investigation under Chapter XIV, it will be found to break down even at the start and that is a further indication that Section 207 (a) does not intend to extend the operation of Section 207 A to cases which are not specifically covered by its own terms and to which it does not apply of its own force.
28. If Section 207(a) does not extend the scope of 207A but merely repeats the directions contained in the latter section, it may legitimately be asked why it was enacted at all. It appears to me that Section 207 was not really necessary and it adds nothing to the Code which is not contained elsewhere. The whole section, which has its counterpart in Section 251, appears to be of the nature of a mere chapter-heading and it does no more than indicate the two broad divisions of the procedure applicable to commitment proceeding which are dealt with in detail in subsequent sections of the Chapter.
29. If, for the foregoing reasons, Section 207-A must be held to apply only to cases where there has been an investigation under Chapter XIV of the Code, it is clear that the section cannot be applicable to the present case. In is true that the alleged offence is a cognizable offence, in regard to which there could be an investigation under Chapter XIV if it was committed within the jurisdiction of the West Bengal Police. But the offence was committed in Calcutta and when the investigation commenced, no part of Chapter XIV applied to the Calcutta Police except Sections 164, 165 and 167, which are not here material. It is also true that on the 9th February, 1956, when the investigation was still in progress, Sections 154, 161, 162, 103, 172 and 173 of the Chapter were extended to the Calcutta Police, but, quite inexplicably, Section 156 which empowers' the police to make an investigation under the Chapter was not extended. In law, therefore, the Police making the investigation never acquired authority to make an investigation under Chapter XIV. There is again the fact that the major part of the investigation had been completed and all the material witnesses examined before even Sections 154, 161 162, 163, 172 and 173 were extended to the Calcutta Police. The allegations of the petitioners to that effect were not denied on behalf of the State. As to the major part of the investigation, the question whether after the extension of six sections of the Code to the Calcutta Police by the notification of the 9th February, 1956, an investigation by them can be regarded as an investigation under Chapter XIV, does not even arise in this case, because the investigation took place before the extension. The learned Advocate General contended that, in any event, that part of the investigation which had been held after the 9th February, 1956, was an investigation under Chapter XIV and since the report to the Magistrate had been made after the completion of the investigation and after that date, it had to be and was a report under Section 173. I am unable to accept that contention, because, as I have explained earlier, section 156 was not extended to the Calcutta Police on the 9th February, 1956 and therefore any investigation made by them even after that date could not possibly be an investigation under Chapter XIV but could only be an investigation under the Calcutta Police Act. The whole of the investigation was therefore outside Chapter XIV and the report made was not in law a report under Section 157 or Section 173, as it did not even purport to be in fact. If Section 156 had been extended along with the other sections and if the Calcutta Police had thereafter made their investigation under Chapter XIV and had submitted a report in the form prescribed under Section 173, it might have to be considered whether even such a report could be a report under Section 173, seeing that the whole of the investigation had not been under Chapter XIV. But that question does not arise. Section 156 was not extended and the power to make investigations under Chapter XIV was never conferred on the Calcutta Police. Whether the six sections, actually extended, were extended before the investigation had commenced or in the middle of the investigation is therefore immaterial. Even in a case where the whole of an investigation took place after the extension of the six sections, it would not be an investigation under Chapter XIV and, accordingly, like reports by the general Police of a non-cognizable offence without any order by a Magistrate to investigate it, no report of an offence made by the Calcutta Police, whether the offence reported be cognizable or non-cognizable, can be a report under Section 173.J Accordingly, section 207A cannot apply to the present case.
30. It may be said that Section 173 has been specifically extended to the Calcutta Police and, therefore, power to make a report under that section having been conferred on them, there is no reason why a report purported to be made under Section 173 should not take effect as such. That question also does not arise in the present case, since the report, actually made, did not purport to be a report under Section 173. Equally may it be said that since Section 161 has been specifically extended, the Calcutta Police may examine witnesses under that section and if they do, there will be statements of witnesses recorded under Section 161 for the purposes of Sections 173 and 207A. A similar contention may be advanced with regard to Section 154 and also Section 164 which applied to the Calcutta Police of its own force. There is no room for such contentions in the present case, except to a slight extent with regard to Section 161, because Section 154 was extended long after the stage of first information, there was no confession or statement by any accused person and before Section 161 was extended, the majority of the witnesses had already been examined by the Police, which must have been done under Section 78A of the Calcutta Police Act. But even apart from the circumstance that so far as the present case is concerned, the contentions are excluded by the facts, they would not be tenable even in a case where the whole of the investigation had taken place after the 9th of February, 1956, because, as I have already pointed out, Sections 161, 162, 172 and 173 all presuppose and indeed expressly mention an investigation under Chapter XIV and consequently the basic power to make an investigation under that Chapter not having been extended, the extension of the machinery provisions has in reality been infructuous. There is no question here, as I have also pointed out, of construing an Act in such manner as would avoid an absurdity; because the Code itself has not said that some of its provisions shall apply to the Calcutta Police without making similar provisions as regards some other connected sections.
31. I have already dealt with the view expressed by Sen, J. in 61 Cal WN 248 (C) that after the notification published on the 9th February, 1956, the Calcutta Police would be bound to investigate cases under the provisions contained in Chapter XIV of the Code and have given my reasons for not being able to agree in it. The case before Sen, J. was, on its facts, precisely similar to the case before us, since, there also, a part of the investigation had taken place before the 9th February, 1956. The learned Judge agreed that Section 173 contemplated chiefly investigations held from the beginning under Chapter XIV, but he was of opinion that where a part of the investigation had taken place after the 9th February, 1956, such part would be an investigation under Chapter XIV and the report submitted would be a report under Section 173 and, as regards the part which had taken place before the 9th February, 1956, he held that although the provisions of Section 173 (4) would not strictly apply to information recorded or statements of witnesses taken during such part, the accused would not be prejudiced in any way if Section 207A was applied, because he would be able to get copies of the crime sheet and the statements of witnesses recorded under Section 78A of the Police Act under the words 'all other documents or relevant extracts thereof on which the prosecution proposes to rely,' contained in Section 173 (4). I have already expressed my dissent from the first part of the learned Judge's view. As to the second part, I think, with respect, that the question is not one of prejudice, because even on the assumption that the latter part of the investigation was under Chapter XIV, the application of Section 207A would not be an irregularity, tout an illegality. Even if the matter is to be judged by the test of prejudice, I think that the prejudice caused by the application of Section 207A where it could not strictly apply would be great, because the accused would lose the right of requiring the attendance of witnesses and production of documents under Section 208(3) and the chance of having some of his own witnesses examined by the Magistrate under Section 212 before he decided whether he would commit him or not.
32. In my opinion, even after the extension of Sections 154, 161, 162, 163, 172 and 173 of the Code to the Calcutta Police, Section 207A cannot apply to any case instituted on a report made by them, irrespective of whether a part or the whole of the investigation took place after the date of the extension. The learned Advocate-General practically conceded in the end that the difficulty about applying the section to such cases could not be overcome. Asked why there had been only a partial extension of the provisions of Chapter XIV, with the most important provision omitted, and why no provision had at least been made for pending case in which a part of the investigation had already been held under other laws, he replied that the State authorities had not been wholly free agents. With that matter, we have no concern.
33. In my view, the first contention of the petitioners ought to prevail for the reasons I have given. Accordingly, they do not require the aid of their second contention which was a modified form of the first and was based on the circumstances that the whole of the investigation had not taken place after the notification published on the 9th February, 1956, but a part had taken place before. Nor is it necessary to deal with the argument advanced in support of the second contention that Sections 173 and 207A could not be applied with retrospective effect to cases where, at the date of the notification, a part of the investigation had already taken place under other laws, because not merely procedural rights but substantive rights were also involved. As the petitioners attack on the application of Section 207A succeeds, it is equally unnecessary to deal with their third and fourth contentions which raised questions of construction regarding the fourth sub-section of the section.
34. In fact, however, the second contention of the petitioners has been dealt with by me in course of my dealing with the first. Though it is not necessary for the purposes of the decision in this case, I would also deal briefly with the third and the fourth contentions, because the points are of great practical importance and were argued on both sides at some length, with, on the petitioners' side, the assistance of three decided cases. The petitioners contend that even if Section 207-A applies to the present case, the prosecution were bound, under the first part of Sub-section (4) of the section, to examine all the witnesses of the actual commission of the offence and that if they failed to do so, the learned Magistrate was bound, under the second part of me same sub-section, to examine them or at least he ought to have examined them in the interest of justice. In support of these contentions, the petitioners relied on The State v. Govindan Thampi Bhaskaran Thampi, (1957) 58 Cri LJ 245: ((S) AIR 1957 Trav-Cq 29) (O), decision of the Travancore-Cochin High Court, The State v. Ramratan Bhudhan (1957) 58 Cri LJ 64: ((S) AIR 1957 Madh B 7) (P), a single Judge decision of the Madhya Bharat High Court and Krishna v. The State of Mysore, (1957) 58 Cri LJ 76: ((S) AIR 1957 Mys 5) (Q), a decision of the Mysore High Court. In my view, the contentions are not correct and indeed Mr. Dutt, who appeared for the petitioners, stated that his personal opinion was that the cases he was citing had not been rightly decided.
35. Section 207-A (4) reads as follows : 'The Magistrate shall then proceed 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 is of opinion that it is necessary in the interests of justice to take the evidence of one or more of the other witnesses for the prosecution, he may take such evidence also.'
36. I am unable to see how the obligations contended for by the petitioners can be read into the language of the sub-section. The first part undoubtedly lays an obligation, but it is only an obligation on the Magistrate to examine such witnesses of the actual commission of the offence alleged as the prosecution may produce before him. Primarily and directly, the second part lays no obligation at all, but only confers a power and a discretion on the Magistrate to examine on his own account witnesses other than those examined by he prosecution, if he considers it to be in the interests of justice to do so. The Magistrate must undoubtedly apply his mind to the question as to whether some more of the prosecution witnesses than the prosecution have produced ought to be examined in the interests of justice and he must exercise the power and the discretion conferred on him to examine such witnesses judicially. His power may become a duty and his discretion an obligation if he takes such a view of the evidence of the witnesses whom the prosecution have examined that there are matters in it which remain to be clarified and on which other witnesses, if examined, may throw some light. In such a, case, he cannot decline to examine for himself such other witnesses on some extraneous ground such as that the matters may be cleared up in the Sessions Court or that a considerable number of witnesses having been examined by the prosecution, it is not desirable to prolong the proceedings further by examining more witnesses. If he does so, he may not fail in discharging any obligation directly laid on him by the sub-section, but he fails in discharging an obligation arising under it on his findings. If, again, he fails to apply his mind at all to the question of examining more witnesses or fails to examine more witnesses on an erroneous view that it is not justly necessary in the circumstances of the case to do so, he may be corrected by a superior Court, But he is under no absolute duty to examine in every case all such witnesses of the actual commission of the alleged offence as the prosecution have not examined. Nor does the sub-section impose any absolute, duty on the prosecution to produce before the committing Magistrate all their witnesses of the actual commission of the offence alleged.
36a. In holding that under the first part of Section 207-A (4), the prosecution are bound to examine all their witnesses of the actual commission of the offence alleged, the Travancore-Cochin and Madhya Pradesh decisions rely on the rule of interpretation that the word 'may', as used in a statute, has sometimes the compulsory force of 'shall'. The first decision refers to the discussion in Craies on Statute Law and cites the cases there cited, while the second quotes Maxwell on the Interpretation of Statutes and some of the decisions cited in that treatise. The Mysore decision is really concerned with the second part of Section 207-A (4) and only contains a passing observation that what is obligatory on the Magistrate under the section is only the recording of the evidence of witnesses to the actual occurrence. It does not say that the prosecution are bound to produce all their witnesses of the actual commission of the offence alleged, but says on the other hand that the Legislature, which was trying to shorten and simplify the commitment proceedings, could not have contemplated examination of all witnesses for the prosecution at] the enquiry state.
37. With great respect, I am entirely unable to see how the rule of interpretation invoked by the Travancore-Cochin and Madhya Bharat High Courts can have any possible application in the construction of Section 207-A (4). It is true that a legislative provision expressed in a permissive form is sometimes construed as really mandatory and the word 'may' is taken as if it read 'must' or 'shall'. But that is only when a power is conferred on a person by saying that he may do a certain thing, giving him liberty to do it so far as the form of expression goes, while, on the other hand, it appears either from the nature of the thing to be done or from other indications in the provision that the Legislature intended to make it the duty of the person concerned to exercise the power. In such a case it is said that the effect of the word 'may' is not to make it optional or discretionary with the donee of the power to exercise it or not, but the effect is to enable him to exercise it which is otherwise made his duty to do. That principle of construction cannot apply in a case where the word 'may' is not used with a verb which confers a power on a certain person and enables or permits him to exercise it, but is used with a verb in the passive voice which occurs in an adjectival phrase, describing a fact, and occurs in conjunction with other words which completely exclude implications of an obligation. The words 'evidence of such persons, if any, as may be produced by the prosecution as witnesses of the actual commission of the offence alleged' do not purport to confer any power on the prosecution to produce witnesses of the kind mentioned, but simply describe the witnesses by the fact of their, production by the prosecution. If the word 'shall' is substituted for the word 'may' and instead of 'as may be produced by the prosecution', the sub-section is read as saying 'as shall be produced', the change will not make the slightest difference in the meaning. It will not make any difference, because the effect of the words 'such as' cannot possibly be avoided. If the sub-section had said, 'the prosecution may produce for examination persons who were witnesses of the actual commission of the offence alleged and the Magistrate shall take their evidence', there might be room for a contention that, in the context, the word 'may' ought to be read as 'shall' or 'must', as advancement of justice was intended. So read, it would, in view of the form of the sentence in which it occurred, make the production of all witnesses of the actual commission of the offence obligatory on the prosecution. But] the first part of Section 207-A (4) is very different in form and it uses the words 'may be produced' in conjunction with the words 'such as' and 'if any'. To read 'such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged' as meaning that all persons who, according to the prosecution, are witnesses of the actual commission of the alleged offence, must be produced by them is altogether out of the question. It has been said by the Travancore-Cochin High Court that a close reading of Section 207-A (4) would show that the words 'if any relate to the expression 'witnesses of the actual commission of the offence alleged'. With respect, however closely the section may be read, the words cannot be taken as qualifying anything but 'such persons as may be produced', the meaning being that the Magistrate must take the evidence of such persons as may be produced by the prosecution as witnesses of the actual commission of the offence, if any persons are produced by them as such Witnesses.
38. To read 'shall' for 'may' in the first part of Section 207-A (a) will thus serve no purpose. Indeed, the form of language used by the Legislature admits of no meaning but that it is for the prosecution to decide if they will produce any of their witnesses of the actual commission of the offence alleged and, if they decide to produce such witnesses, which of them they will produce, but if they do produce such witnesses, it shall be the duty of the Magistrate to examine them. The apprehension expressed by the learned Judge of Madhya Bharat High Court that if the first part of Section 207-A (4) be not construed as making it obligatory on the prosecution to produce all their witnesses of the actual commission of the offence, they may not examine any of the witnesses at all and that, in such event, very important evidence 'would be allowed to slip through the fingers of the Magistrate' and that the commitment proceedings would be 'reduced to a farce', appears to me to be wholly groundless. It is precisely to meet the contingency of the prosecution not examining material witnesses that the Magistrate has been given power, by the second part of the sub-section, to examine witnesses for himself, if he finds it necessary in the interest of justice to do so. Indeed, the fact that he has been given such power is another indication that while the Legislature intends that all the witnesses, material for the purposes of commitment, should be before the Magistrate, it has not sought to bring about that result by making it compulsory for the prosecution to produce all the witnesses of the actual commission of the Offence, but has chosen the method of leaving the prosecution free to produce what witnesses they like and then giving power to the Magistrate to supplement the prosecution evidence, if any, by calling other witnesses where they appear to him to be material. The two parts of the sub-section are thus complementary to each other. If the prosecution do not produce any of the witnesses of the actual commission of the offence, it does not follow that the Magistrate will proceed to commit the accused merely on the Police papers. He may decline to commit at all. Similarly, if the prosecution choose to produce only some of the witnesses of the actual commission of the offence, they take a risk, because the Magistrate may not find the evidence of those witnesses sufficient to establish a prima facie case and may discharge the accused without examining any witnesses on his own account. Thus, even if the first part of Section 207-A (4) be read as not making it obligatory on the prosecution to produce their witnesses of the actual commission of the offence before the Magistrate, there is enough reason for their finding it to be in their own interest to produce at least the more important of those witnesses and, in any event, there is the power in the Magistrate to examine witnesses for himself. It is thus not correct to say that unless the first part of Section 207-A (4) is read as making it the duty of the prosecution to produce all their witnesses of the actual commission of the offence, the accused would be placed at the mercy of the Police. These considerations are, however,irrelevant. The true meaning of the sub-section must be only what its language admits of on a fair construction of the words used.
39. As to the second part of the sub-section, it is even less possible to say that it requires the Magistrate to examine in every case all of those witnesses of the actual commission of the offence alleged whom the prosecution have not examined. At the same time, I cannot agree with the Mysore High Court that if there are no witnesses of the actual commission of the offence, the Magistrate is not bound to examine any other witness or witnesses. He may not be bound in the sense of being required to examine in every such case some or the prosecution witnesses, none of whom is a witness of the actual commission of the alleged offence; but where it appears from the Police papers that some of those witnesses ought to be examined in the interest of justice, it will be his duty to examine them. The 'other witnesses' whom the Magistrate may examine for himself under the second part of Section 207-A (4) are not merely prosecution witnesses of the actual commission of the offence other than those whom the prosecution have themselves examined. The second part of the sub-section confers a power on the Magistrate, though in language merely permissive in form, but at the same time indicates when that power is to be exercised though, again the occasion of its exercise is made to depend primarily on his subjective opinion. The provision is analogous to those whereby a power is conferred on an authority to be exercised by him 'if he shall think fit' and with regard to which it has been acutely said that there is a distinction between a discretion to exercise a power and a discretion to determine only whether an occasion for its exercise has arisen, and that it is only the latter discretion which statutes expressed in such form confer. The authority vested with the power must therefore apply his mind to the question of judging whether a case for its exercise has arisen and his power is discretionary only so far as he may do or not do the thing that he has been empowered to do according as he decides, in the honest exercise of his judgment, that in the circumstances of the case it ought or ought not to be done. But to the extest that he must apply his mind to the question of judging the matter, the exercise of the power is imperative and if he forms an opinion that a case for doing the thing is made out by the facts, the doing of it is also imperative. The Magistrate must, therefore, under the second part of Section 207-A (4), consider, after the prosecution have closed their evidence and equally in a case where the prosecution have not produced any witnesses at all, whether it is necessary in the interests of justice that he should examine some or some other prosecution witnesses for himself. Whether or not there are witnesses of the actual commission of the offence alleged is immaterial. If he decides that the circumstances of the case are such that some or some more of the prosecution witnesses ought to be examined, he must examine them. Ordinarily, it is not conceivable that a Magistrate will form an opinion that it is necessary that he should himself examine some or some other prosecution witnesses and yet not examine them, but it may be, as I have pointed out earlier, that he may refrain from doing so on extraneous considerations. That will be illegal, because it will be a failure to exercise a power which he was required by the statute to exercise. Thus, although the second part of Section 207-A (4) does not directly command the Magistrate to examine some prosecution witnesses on his own account, it does impose an obligation to do so indirectly and in the limited sense I have explained above. The Magistrate is not relieved of that obligation simply because there are no witnesses of the actual commission of the offence alleged.
40. It cannot, however, be said that where the prosecution have not produced some of their witnesses of the actual commission of the offence alleged, the second part of Section 207-A (4) requires the Magistrate, as a matter of law, to examine them on his own account. It is true that from the prosecution witnesses whom the Magistrate may examine for himself, witnesses of the actual commission of the offence alleged, not examined by the prosecution, are not excluded, 'Other witnesses for the prosecution' obviously means witnesses for the prosecution, named but not examined by them, whether they be witnesses of the actual commission of the offence or not. But if some witnesses of the actual commission of the alleged offence have not been examined by the prosecution and they are to be examined by the Magistrate, it must be only if he, on applying his mind to the matter, comes to be of opinion that it is necessary in the interests of justice that they should be examined, or if, in case he decides against examining them capriciously or perversely, he is directed by a superior Court to examine them. There is no absolute obligation to examine in every case all such prosecution witnesses of the actual commission of the offence alleged as the prosecution have not examined. The extreme contention of the petitioners must therefore be negatived.
41. The second branch of the fourth contention of the petitioners was that, in any event, in refusing to examine the witnesses mentioned by them in their two applications, the Magistrate had not exercised his discretion properly. That contention bears on facts and the effect of the evidence adduced by the prosecution. In view of my finding that Section 207-A is not applicable to this case, the order must be that the Magistrate should begin again and follow the proper procedure and therefore it will not be right to consider any question which arises out of the evidence given in proceedings which must now be held to have been bad. If I held against the petitioners on their first and second contentions, I would have to consider whether the Magistrate, although he was not bound to examine some more witnesses as a matter of law, had yet exercised his discretion properly in refusing to examine the witnesses named by the petitioners. But as the first contention succeeds, the question does not arise.
42. In the result, the Rule is made absolute. The first order passed by the learned Magistrate on 21st of August, 1956, is set aside and all proceedings had after 16th April, 1956 quashed. The learned Magistrate is directed to proceed with the enquiry in accordance with law, i.e., in accordance with Section 208 and the subsequent sections of the Code.
K.C. Das Gupta, J.
43. I agree.