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Kali Charan Duary Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 715 of 1953
Judge
Reported inAIR1954Cal577,58CWN1035
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 110, 117(2), 350 and 350(1)
AppellantKali Charan Duary
RespondentState
Appellant AdvocateS.S. Mukherjee and ;Kishore Mukherjee, Advs.
Respondent AdvocateN.K. Sen, Adv.
Cases ReferredAnu Sheikh v. Emperor
Excerpt:
- .....lr 452 (a) in support of the proposition that in security proceedings under chapter viii of the code a person proceeded against may insist on re-call and re-examination of witnesses before the successor magistrate.that was a decision under the code of 1872. in that case morris and white jj. held that a person proceeded against under section 491 of the code of 1872 which roughly corresponds to section 107 of the present code, had the right to have witnesses re-examined and their evidence re-heard before the successor magistrate under the provisions of section 328 of the 1872 code roughly corresponding to section 350 of the present code.it is to be observed that the code of 1872 underwent extensive revision and was replaced by the consolidating and amending act v of 1898. while section.....
Judgment:

Debabrata Mookerjee, J.

1. The question that falls to be determined in this revision petition is whether a person proceeded against under the provisions of Section 110, Criminal P. C. has, on transfer of the enquiring Magistrate, the right to have evidence re-heard by the successor Magistrate.

2. The petitioner was required under Section 110, Criminal P. C. by the Sub-divisional Magistrateof Contai to show cause why he should not be ordered to execute a bond with sureties for his goodbehaviour.

The proceedings have had a chequered career. They were being dealt with by Mr. A. K. Sen, Sub-divisional Magistrate, before whom a large number of witnesses were examined. Mr. Sen was, however, transferred, and he was succeeded by Mr. S. C. Bhattacharjee who took up the proceedings from the point reached by his predecessor.

An application was then made on behalf of the petitioner praying that the witnesses already examined before Mr. Sen might be re-summoned and their evidence re-heard by the successor Magistrate Mr. Bhattacharjee. The prayer for re-hearing the entire evidence was refused, but consideration on the merits of application for re-call of individual witnesses was assured. The petitioner was not satisfied with this concession and moved this Court and obtained the present Rule.

3. Mr. Mukherjee appearing in support of the Rule contends that the petitioner could as a matter of right ask for re-call and examination over again before the new incumbent of all witnesses examined before his predecessor. It is argued that according to well-established principles regulating adjudication upon evidence, the court must hear the evidence and then decide. The refusal of the learned Magistrate to re-summon the witnesses and re-hear their evidence would, it is contended, necessarily result in his having to decide on evidence a large part of which he will not have heard himself.

4. Change of Magistrate is a contingency common to enquiries and trials and although the general rule is that the court holding an enquiry or trial decides on the evidence it hears, the legislature has recognised the need of providing exceptions to the general rule. One such exception is Sub-section (1) to Section 350, Criminal P. C., which is in these words :

Whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein, and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial.'

Proviso (a) to the sub-section is also material toour purpose and reads as follows:

'in any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard.'

5. Sub-section (1) of Section 350, Criminal P. C. deals both with enquiry and trial and gives a wide discretion to the successor Magistrate. He may act on the evidence recorded wholly by his predecessor or partly by his predecessor and partly by himself; or if he thinks fit he may commence the inquiry or trial anew and re-hear the entire evidence. The position, therefore, is that the succes-sor Magistrate's discretion is left unlettered both when trying a case and when holding an inquiry; but proviso (a) to the sub-section puts a limitation on the magistrate's discretion in the case of trial and gives the accused person the right to demand that all or any of the witnesses be resum-moned and re-heard.

6. It follows, therefore, that while in an enquiry the successor Magistrate may re-hear a part or whole of the evidence with or without being asked to do so, in a trial he is obliged to re-summon the witnesses and re-hear the evidence at the instance of the accused; and unless security proceedings under Chapter VIII of the Code can be called trials and persons proceeded against accused persons, the right to have witnesses recalled and their evidence re-heard before the successor Magistrate cannot be held to accrue.

7. A clear distinction has been made between 'inquiries' and 'trials' throughout the Code. Section 350 occurs in Chapter 24 which deals with General Provisions relating to Inquiries and Trials, and it is only reasonable to think that the legislature has made a distinction between 'trials' and 'inquiries' in view of this and other provisions of the Code to which I shall presently advert.

8. This conclusion is reinforced by consideration arising from another provision contained in Section 350 itself. Proviso (b) to Sub-section (1) of Section 350 enables the High Court or the District Magistrate to set aside a conviction made by a Magistrate on evidence not wholly recorded by him. Where it appears that the accused has been prejudiced, the High Court or the District Magistrate may order a new enquiry or trial. This provision implies that even if the accused has omitted to avail himself of the right given him by proviso (a) to ask for a 'de novo' trial, it will still be open to the courts named in proviso (b) to give relief to the accused person by ordering a new trial or inquiry.

Proviso (b) is thus obviously enacted with a view to ensuring complete justice to an accused person despite his failure to insist upon his right to ask for a 'de novo' trial. It is to be observed that the provision is confined to a trial only and there is no cognate provision in the case of an inquiry. It is thus impossible to escape the conclusion that the legislature has deliberately made and maintained the distinction between a 'trial' and an 'inquiry'.

9. It is argued that the distinction is obliterated by reason of the fact that under proviso (b) the High Court or the District Magistrate may in an appropriate case order a new trial or inquiry. The argument is that if by the word 'inquiry' is meant something other than a 'trial', the consequent implication is that in the event of material prejudice occurring by reason of the evidence not having been wholly heard by the enquiring Magistrate, a fresh inquiry has to be ordered as much a trial.

I am afraid this argument is completely repelled by the express words of the statute itself. Proviso (b) in its earlier part refers not only to 'trial' but to the 'accused' and his 'conviction'. An interpretation which involves disregard of the plain words of the statute or the assumption that the words 'trial' and 'inquiry' have loosely been used by the legislature cannot possibly be accepted.

Further, the inquiry to be ordered under proviso (b) is perfectly consistent with a conviction being set aside and instead of a new trial being ordered, an inquiry is directed which must mean an inquiry preliminary to commitment under the provisions of Chapter XVIII of the Code. The High Court or the District Magistrate might in a given case think that a magisterial trial would result in deprivation to the accused of the benefit of trial by jury and in that view order an inquiry as a preliminary to such trial. This makes consistent reading of the proviso which expressly deals with 'trial' at which the 'accused' is 'convicted'. This enquiry must not, therefore, be confused with other enquiries say under Chapter VIII or Chapter X, or Chapter XI or Chapter XII of the Code.

10. Reliance was placed by Mr. Mukherjee on a decision of this Court in the case of -- 'Buroda Kant v. Korimuddi Moonshee' 4 Cal LR 452 (A) in support of the proposition that in security proceedings under Chapter VIII of the Code a person proceeded against may insist on re-call and re-examination of witnesses before the successor Magistrate.That was a decision under the Code of 1872. In that case Morris and White JJ. held that a person proceeded against under Section 491 of the Code of 1872 which roughly corresponds to Section 107 of the present Code, had the right to have witnesses re-examined and their evidence re-heard before the successor Magistrate under the provisions of Section 328 of the 1872 Code roughly corresponding to Section 350 of the present Code.

It is to be observed that the Code of 1872 underwent extensive revision and was replaced by the consolidating and amending Act V of 1898. While Section 350 of the present Code speaks distinctly of inquiries and trials and the scheme of the section repels, as we have seen, the inference that the words are used interchangeably, Section 328 of the Code of 1872 refers to evidence in the 'case' being heard in part. The word 'case' is a term of wide import and might conceivably have included both trials and inquiries. The legislature must be taken to have advisedly dropped the word 'case' and adopted 'trials' and 'inquiries' instead. The decision, therefore, cannot be held to be an authority in interpreting Section 350 of the Code as it now stands.

11. Mr. Mukherjee next contends that the order requiring security is ' in substance a conviction. The consequences, it is argued, of inability or of neglect to furnish a bond are very serious and may entail loss of liberty for a considerable time.

I am afraid that is no ground for thinking that a person proceeded against under one or other of the security sections is a person accused of offence. Such a person is proceeded against not because he has committed an offence, but because he is to be prevented from committing one. Indeed, Chapter VIII, Criminal P. C. relating to security proceedings comes under Part V of the Code which expressly deals with prevention of offences. Aperson accused of an offence surely cannot give evidence; but, a person proceeded against under the provisions of Section 107 of the Code is a competent witness in his own case,

12. The concept of trial and punishment of an accused person for committing an offence is a familiar concept running throughout the Code; but inquiries are different and they relate to miscellaneous matters like those dealt with in Chapter VIII, Chapter X, Chapter XI, Chapter XII and other Chapters of the Code. Although 'trial' has not been defined in the Code, 'inquiry' has been. Section 4 (k) says 'Inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. Therefore, if anything, an inquiry is not a trial. There is thus no warrant for the view that the words 'trial' and 'inquiry' have been loosely used or used in the popular sense in Section 350 of the Code.

13. Mr. Mukherjee finally argued that by reason of Sub-section (2) of Section 117 of the Code all the provisions of the Code relating to trial wherever they occur are attracted. Sub-section (2) of Section 117 is in these words :

'Such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons-cases; and where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant-cases, except that no charge need be framed.'

In support of this contention reliance has been placed upon a Pull Bench decision of the Madras High Court in the case of -- 'Venkatachennaya v. Emperor' AIR 1920 Mad 337 (B). We have considered this decision but we respectfully differ from the conclusions reached there.

14. Sub-section (2) of Section 117 has only the effect of regulating the procedure to be followed in two types of security proceedings. Where an order requires security for keeping the peace under Section 107 of the Code the procedure to be followed in such inquiry will be the procedure laid down in Chapter XX for the trial of summons cases; and when the order requires security for good behaviour the procedure prescribed is the procedure of a warrant case trial laid down in Chapter XXI of the Code. To my mind Sub-section (2) of Section 117 is merely indicative of the procedure to be followed in the two types of inquiries dealt with in Chapter VIII of the Code. The words of the sub-section are sufficiently precise and they admit of no speculation as to their true scope and effect.

In Chapters XX & XXI the Code prescribes the procedure to be followed for the trial of summons and warrant cases respectively. This sub-section only enjoins compliance with two types of procedure for two types of security proceedings so that the less serious one namely proceedings for keeping the peace may conform to the summons case procedure and the more serious one namely proceedings for good behaviour to the warrant case procedure. The inquiry in either case has to approximate as closely as possible to the prescribed procedure.

In fact, the words 'as nearly as may be practicable' are not without import in the sense that while they forbid departure from or disregard of the prescribed procedure, they serve to keep up the barrier that divides trials from inquiries by enjoining in the case of inquiries approximation to the procedure for trials.

15. To my mind Sub-section (2) of Section 117 of the Code far from abolishing the distinction between trials and inquiries has the effect of perpetuating it. The argument which appears to have found favour with the Madras Full Bench that the subsection has the effect of attracting all the incidents of trial cannot, therefore, be entertained.

I am wholly unable to appreciate the further argument that it is by reason of this sub-section that Chapters of the Code containing provisions of a general character like Chapters XXIV and XXV are attracted to enquiries. Those chapters, headed as they are, apply of their own force both to inquiries and trials, and not constructively by reason of the operation of Sub-section (2) of Section 117 of the Code. There is no reason to think that although these chapters are expressly made applicable to inquiries, they would remain inert provisions until they are touched to life and brought into play by the operation of Sub-section (2) of Section 117 of the Code.

16. Reference may be made to two later decisions of this Court. The case of -- 'Hopcroft v. Emperor' 36 Cal 163 (C) is not of much assistance to us so far as the present Rule is concerned. All that was said there was that a party against whom an inquiry under Section 107 of the Code has been instituted is 'in the position of an accused person. That is to my mind far from saying that he is an accused person. The case of -- 'Anu Sheikh v. Emperor' 37 Cal 812 (D) is more to the point. There the learned Judges were considering Section 350 itself and it was held that where a Magistrate who has commenced an inquiry under Section 145, Criminal P. C. is transferred and the District Magistrate has made over the case to another Magistrate the latter has power under Section 350 of the Code to proceed with, it without examining the witnesses 'de novo'.

17. In my opinion, therefore, the words of Section 350, Criminal P. C: are sufficiently explicit. The words 'trial' and 'inquiry' both occurring in the section are perfectly plain words used in the statute and these words must receive full effect. I hold, therefore, that the proceedings under Section 110, Criminal P. C. are not trials and a person proceeded against under that section not being an accused person cannot as a matter of right ask for witnesses to be re-summoned and their evidence re-heard before a successor Magistrate.

18. I would, therefore, discharge this Rule.

Das Gupta, J.

19. I agree.


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