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Narendra Chandra Rudra Pal Vs. Sabarali Bhuiya - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported inAIR1925Cal822,(1925)ILR52Cal721
AppellantNarendra Chandra Rudra Pal
RespondentSabarali Bhuiya
Cases ReferredBahadur Molla v. Ismail
Excerpt:
witness - necessity of reading over the evidence to the witnesses in an inquiry under section 145 of the code--omission to do so--illegality vitiating the proceedings--'accused'--parties to such proceedings not accused--reading over in the presence of the parties not necessary--criminal procedure code (act v of 1898) section 360. - walmsley, j.1. the question referred is whether the provisions of section 360 of the criminal procedure code are applicable to an enquiry under section 145 of the criminal procedure code. the difficulty arises from the requirement that the deposition of each witness should be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and the question for our decision becomes nothing more than this, viz., whether persons against whom proceedings under section 145 of the criminal procedure code have been initiated are accused within the meaning of section 360 of the criminal procedure code.2. the word ' accused ' is one of the words that have not been defined in any statute. our attention has been drawn to various decisions in which a.....
Judgment:

Walmsley, J.

1. The question referred is whether the provisions of Section 360 of the Criminal Procedure Code are applicable to an enquiry under Section 145 of the Criminal Procedure Code. The difficulty arises from the requirement that the deposition of each witness should be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and the question for our decision becomes nothing more than this, viz., whether persons against whom proceedings under Section 145 of the Criminal Procedure Code have been initiated are accused within the meaning of Section 360 of the Criminal Procedure Code.

2. The word ' accused ' is one of the words that have not been defined in any statute. Our attention has been drawn to various decisions in which a definition has been attempted. For the purpose for which those decisions were given they may be accepted as correct; but I do not think it necessary to consider whether the definition may be regarded as satisfactory for all purposes, for to my mind they have been rendered obsolete by the changes introduced in Section 340 of the Criminal Procedure Code by Act XVIII of 1923. That Section before the amendment ran ' Every person accused before any Criminal Court may of right be defended by a pleader . It now runs Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader. The second clause says that any person against whom proceedings are instituted in any such Court under Section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under Section 552, may offer himself as a witness in such proceedings. The first clause recognises two classes of persons who may be before a Court, those who are accused of an offence, and those against whom proceedings under the Code are instituted, and the second Clause emphasises the distinction by enacting that many of those of the second class may offer themselves as witnesses in such proceedings. In my judgment the effect of this amendment is to narrow the meaning of the word 'accused', and to limit it to those who are accused of an offence. With all deference to those who take a different view, I do not think that any of the alarming results which they picture will follow from attributing to the word ' accused' the narrow meaning. As for the suggestion that the provisions of Section 360 of the Criminal Procedure Code will cease to apply to evidence given in proceedings under Section 145 of the Criminal Procedure Code, I see no difficulty in reading the first clause of Section 360 as meaning that the evidence is to be read over to the witness in the presence of the accused, if there is one, that is to say, in proceedings under Section 145 of the Criminal Procedure Code, to each witness must be read over the deposition which he gives, but it will not be necessary that either the parties to the proceeding or their pleaders should be present.

3. This view is, I think, in accordance with the provisions of the law, and it has in its favour that it avoids the immense practical difficulties that might result from the other view, and that it does not demand in summary proceedings as to possession a more elaborate procedure than is prescribed for the civil proceedings which will finally determine questions of title.

4. My answer to the reference, therefore, is that the provisions of Section 360 of the Criminal Procedure Code do apply to proceedings under Section 145 of the Criminal Procedure Code, subject to the qualification that in proceedings under, that Section there is no accused whose presence at the reading of the evidence is necessary.

Gebavbs J.

5. I agree with the judgment just delivered by my learned brother Mr. Justice Walmsley and with the reasoning on which it is founded, and I do not think it necessary to deliver a separate judgment.

Cuming J.

6. The question that has been referred to the Full Bench is whether the provisions of Section 360 of the Criminal Procedure Code are applicable to an enquiry held under Section 145 of the Criminal Procedure Code, or in other words to proceedings under Chapter XII of the Criminal Procedure Code.

7. I would answer the question in the negative and hold that Section 360 has no application whatever to proceedings under Chapter XII, the Chapter in which Section 145 is found. Section 360 (1896) I. L. R. 23 Calc. 439. provides that as the evidence of each witness taken under Section 356 or Section 357 is completed, it shall be read over to him in the presence of the accused or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

8. This is the material portion of the Section which we now have to consider. The argument which has been put forward to us is that the expression ''accused' in the Section includes the 'parties' referred to in Chapter XII, and that it is in their presence that the evidence must be read over to the witness, and further that even if they cannot be considered as accused, still so much of the Section as relates to the reading over to the witness must be complied with.

9. In my opinion the expression ' accused ' in Section 360 cannot and does not include the parties referred to in Chapter XII, neither does the Section contemplate that in cases coming under Chapter XII so much of the Section must be complied with as relates to the reading over of the evidence to the witnesses.

10. I shall deal first with the contention that the expression 'accused' in Section 360 includes the parties to a proceeding under Chapter XII. The learned, vakil has contended that an accused person is any person over whom the Magistrate or other Court is exercising jurisdiction, and in support of this argument he relies on the case of Jhoja Singh v. Queen Empress (1896) I. L. R. 23 Calc. 439. which followed the case of Queen Empress v. Mona Puna (1892) I. L. R. 16 Bom. 661. These decisions undoubtedly support the learned vakil's contention, but with great respect to the learned Judges, to carry this definition to its logical conclusion would involve some startling results. For instance, the Court clearly exercises jurisdiction over a witness for it issues a summons on him, and if he disobeys can issue a warrant and arrest him and punish him for disobeying the summons. This, I presume, is exercising jurisdiction over him. So a witness is an accused.

11. Section 342 (4) says an accused shall not render himself liable to punishment for refusing to answer such questions or giving false answers to them, and further no oath shall be administered to an accused. Therefore, no oath can be administered to a witness and also being an accused he cannot be compelled to answer any question, nor can he be prosecuted for giving false evidence. Yet Section 5 of the Indian Oaths Act (X of 1873) provides that oath shall be made by the following persons: all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court.

12. Further, a witness who refused to take an oath or answer any questions may be punished under Section 178 and Section 179 of the Indian Penal Code, and he may be punished under Section 193 for giving false evidence. To take yet another test, a juror is clearly a person over whom the Court exercises jurisdiction. He attends in obedience to a summons he can be punished for neglecting to attend. He is, therefore, according to the definition, an accused person, so no oath may be administered to him. Yet Section 281 of the Criminal Procedure Code provides that he shall be sworn under the Indian Oaths Act. It is not necessary to further labour these points. I need only say with great respect to the learned Judges that I am not prepared to accept a definition which fails on the simplest tests being applied to it. The Code itself has not defined the expression 'accused '. Possibly because the meaning of the term is so well known in its relation to Criminal Law that it requires no definition.

13. I would define an 'accused' as a person charged with an infringement of the law for which he is liable, if found guilty, to be punished. Turning now to the Code itself, which perhaps is the safest guide, in Chapter XII we never find the expression ' accused.' The persons concerned are always referred to as parties, and Section 145 (7) provides for the substitution of a party's legal representative on his death. I am not aware that the legal representative of a person accused of any of the offences known to the Penal Code can be substituted for him on his death.

14. In other parts of the Code, for instance, Chapters XVIII, XIX, XX, XXI, XXII, XXIII, which deal with trials and enquiries preliminary to commitment, the expression 'accused' is always used to denote the person proceeded against.

15. Let us, however, for the sake of argument, presume that the expression 'accused' in Section 360 includes the parties to a proceeding under Section 145 and see what remarkable results will follow.

16. Presumably all the parties would be accused, and, therefore, the evidence would have to be read over in the presence of all of them. In many cases there are a very large number of parties. Still if they were present in the Court, it might be possible.

17. But it mast be remembered that the parties to a proceeding under Section 145 need not attend, nor can they be compelled to attend, nor if they choose to attend, can they be compelled to remain. How would the evidence be read over in the preseuce of those who did not attend?

18. Moreover, those who did attend could prevent the evidence of their opponents being read over in their presence by at once leaving the Court when it was attempted to read over the evidence in their presence. The result obviously would be that no proceedings under Section 145 could be carried out for each party could render them impossible. Section 145 (4) provides that the Magistrate shall receive all evidence as may be produced, and take such further evidence as he thinks necessary, but any party could, if Section 360 applies to the Chapter XII, render the taking of any evidence impossible. The Legislature clearly could not contemplate such an absurdity, and for this reason deliberately omitted 'parties' from Section 360. Attempts have been made to argue that the Code makes a distinction between accused persons, and that the expression. 'accused ' may be divided into two branches, persons accused of an offence and any person against whom proceedings are instituted under Section 107 or Chapter X, Chapters XI, XII, XXXVI or Section 552, and reliance had been placed on Section 310 (2) and (2) where these two classes of persons are referred to. But this argument will not stand the simplest test. In Section 342 the expression used is ' accused ' which would presumably include both the branches, viz., persons accused of an offence and parties to proceedings under Section 145. No oath shall be administered to an accused, and, therefore, no oath can be administered to a party to a Section 145 proceedings. Yet Section 340 (2) provides that a party may offer himself as a witness.

19. Section 5 of the Indian Oaths Act provides that an oath shall be administered to a witness. It is not necessary to elaborate this point further. A very little consideration will show at once the absurdities into which we are led if we accept the expression 'accused' in Section 360 as including the parties to a proceeding under Chapter XII. I am, therefore, of opinion that the expression ' accused', as used in Section 360, does not include the parties to a proceeding under Chapter XII.

20. It has also been argued that even if the expression accused', as used in Section 360, does not include the parties to a proceeding under Chapter XII, still so much of the Section must be observed in such proceedings as relates to the reading over to the witness That is to say, the evidence must be read over to the witness. I do not agree with the contention for the simple reason that it does not appear to me that the Section requires it.

21. The line of argument is that the Legislature enacted the Section for the protection of the witness as well as of the accused, and, secondly, that, unless the evidence is read over, the witness cannot be prosecuted for perjury. The two arguments it will be seen are mutually destructive, for obviously, if a witness, if the evidence were not read over to him, could not be prosecuted for perjury he would be far better protected than if the evidence was read over to him so that, if necessary, he could be prosecuted. It is always dangerous to attempt to speculate as to what was or was not the intention of the Legislature in enacting any particular Section of an Act. The Judge is liable to attribute to the Legislature what he himself thinks should have been their intention, and so twist the Section to fit in with his own views as to what he thinks it ought to mean. Probably the safer course is to hold that the Legislature intended exactly what it says. In the present Section 360 the Legislature provides that the evidence shall be read over in the presence of the accused If it contemplated that, if there was no accused, it should still be read over to the witness it would have said so. We cannot presume that the Legislature is ignorant of the provisions of the Code that it is enacting or amending. The next argument is that unless the evidence is read over to the witness he cannot be prosecuted for perjury. I admit I cannot follow this argument. A prosecution for giving false evidence is based on the statement the person made in Court. This can be proved by many ways, e.g., by oral evidence or the written record of what he said. Section 80 of the Evidence Act would still apply to such a record, even though it had not been read over to the witness, if the law did not provide that it should be read over to him. There is no particular virtue to be attached to the process of reading over the evidence to the witness, as anyone who has had any practical experience of the operation realises. In the High Court Sessions trials the evidence is never read over, and up to a short time ago the only record of it was the Judge's note. Yet I never heard it suggested that a witness who gave false evidence in the High Court Sessions could not be prosecuted. Neither is the evidence read over to the witness in summons cases, or in any case, tried by a Presidency Magistrate.

22. A further argument has been put forward that Section 360 comes after Section 356 and Section 357. Section 356 deals with the manner of recording evidence in enquiries under Chapters XII and XVIII and also in trials before the Court of Sessions and Magistrates, and it is argued that Section 360 refers to the evidence of each witness taken under Section 356 or Section 357, and as the evidence in proceedings under Chapter XII are taken under Section 356, therefore Section 360 must apply to evidence taken in proceedings under Chapter XII. I do not think this is correct.

23. Section 356 is merely more general than Section 360. Section 360 refers to one branch of the evidence taken under Section 356, viz., in case where there is an accused person. The reason for the distinction is clear. These proceedings under Chapter XII are quasi civil proceedings to determine who shall be the plaintiff and who the defendant in the civil suit and to prevent breaches of the peace.

24. No title is decided, and no one's life or liberty is in question. They were intended to be summary proceedings, and not elaborate civil suits into which they are sometimes allowed to be converted.

25. I am, therefore, of opinion that Section 360 of the Criminal Procedure Code has no application to proceedings under Chapter XII of the Criminal Procedure Code. My learned brothers Walmsley and Greaves, JJ., are of opinion that there should be a partial compliance, and the evidence should be read over to the witness. Although I am unable to agree, at the same time I do so far agree with them that if the deposition had to be read over, the parties not being accused are not entitled to be present, nor is their presence necessary when the evidence is read over.

Mukerji J.

26. The question which arises upon the case, referred to us under Rule 5 of Chapter VII of the High Court Appellate Side Rules, is whether the provisions of Section 360 of the Code of Criminal Procedure are applicable to an inquiry held under Section 145 of the Criminal Procedure Code.

27. In my judgment in the case of Hira Lal Ghose v. Emperor (1924) I. L. R. 52 Calc. 159. I have endeavoured to show that Section 360 of the Criminal Procedure Code is intended not only to protect the witness but also to safeguard the interests of the accused, and that the failure to observe its provisions may materially affect the witness, and may also deprive the accused of a very valuable right which the law secures for him. The question which arises in this reference is whether these salutary provisions were intended to apply to an inquiry held under Section 145 of the Criminal Procedure Code.

28. The mode of recording evidence in an inquiry under Section 145 of the Criminal Procedure Code is prescribed in Section 356 of the Criminal Procedure Code. That Section expressly lays down that in inquiries under Chapter XII---and Section 145 is one of the Sections in that Chapter---the evidence of each witness is to be taken down in extenso as contradistinguished from merely making a substance thereof, as prescribed in Section 355 of the Criminal Procedure Code. Section 360 of the Criminal Procedure Code provides for the procedure to be followed in regard to the evidence recorded under Section 356, and makes no reservation or exception in respect of evidence recorded under that Section in the case of inquiries under Section 145 of the Criminal Procedure Code. Prima facie, therefore, Section 360 would seem to apply to inquiries held under Section 145 of the Criminal Procedure Code. It is said, however, that there is a difficulty in applying Section 360 to an inquiry under Section 145 by reason of the provision therein that the reading over of the deposition to the witness should be in the presence of the accused, if in attendance, or of his pleader, if the accused appears by a pleader. The objection in substance is that the term 'accused' is not applicable to a party to a proceeding under Section 145 of the Criminal Procedure Code. I propose to deal with the grounds upon which this objection is based; but before I do so, I should like to observe that, even if it be assumed that the objection is well-founded, I can see no appreciable reason why so much, of the Section should not be held to be applicable as can possibly be applied, that is to say, why the evidence when completed should not be read over to the witness himself on the footing that there is no accused either in attendance or appearing by pleader.

29. In several reported decisions, to which our attention has been drawn, a view has been expressed that in certain Sections of the Criminal Procedure Code the word 'accused' has been used in its wider significance as meaning a person over whom a Criminal Court is exercising jurisdiction. This view is considered by some to be unsound, as then the word ' accused' would include a witness or a juror, because a Criminal Court exercises jurisdiction over witnesses and jurors as well. According to them the word 'accused', wherever it has been used in the Code, must be taken to mean a person charged with an infringement of the law for which, if convicted, he is liable to be punished. With all respect to those who are of this opinion, I do not think that this objection needs any serious consideration, as it is quite clear that the learned Judges used the word ' jurisdiction ' in a sense wholly different from what has been understood by the critics. ' Jurisdiction ' of a Court may have to be considered with reference to various matters; and its meaning and import varies according to the matter with reference to which it is considered. For instance, in the case of a Criminal Court, it exercises jurisdiction over a particular local area, in respect of certain offences, in cases or proceedings of a particular kind, as against persons parties thereto, as regards witnesses, with regard to jurors or assessors or others who may have to assist in the administration of justice, or in relation to other matters. The conception of jurisdiction in each of these instances is fundamentally distinct from that in the other. The definition perhaps is not scientific but its meaning is quite clear. It means that the word is used in its wider sense as meaning not merely persons who are accused of having committed offences, and who are, therefore, accused persons in the narrower sense of the expression, but includes also persons against whom some accusation or allegation has been made or some information has been received, by reason of which the Criminal Court is called upon to take action. In its wider sense it would include not merely persons accused of offences before a Criminal Court, but also persons against whom proceedings are instituted under the Code of Criminal Procedure in any such Court.

30. It is said that this wider meaning cannot be attributed to the word 'accused' for the following reasons: (i) the word ' accused ' does not find a place in Chapter XII; (ii) there is no machinery for enforcing the attendance of a person who is a party to a proceeding under Section 145 of the Criminal Procedure Code, and so there may be cases in which he will neither attend nor appear by a pleader, and a criminal trial or inquiry in which the ' accused ' is absent is an anomaly which cannot be permitted ; and (iii) in a case under Section 145 the several parties will all be in the position of accused persons, so that the proceeding will then be a proceeding with no complainant but only accused persons.

31. As regards (i), it would appear that the expression ' accused person' does not find, mention in Chapter VIII as well; and the logical effect of this process of reasoning will be to hold that persons who are dealt with under the preventive Sections in that Chapter are also not accused persons. This is a view which was propounded by this Court in the almost solitary decision in the case of Binode Behari Nath v. Emperor (1923) I. L. R. 50 Calc. 985. the authority of which sitting as a member of this Bench I am not prepared to accept as binding. That decision, in my opinion, does not lay down the law correctly. With all respect to the learned Judges who decided that case, I must say I do not agree with the reasons given by them, and the decision is against a consensus of authority, the weight of which is overwhelming. It certainly seems somewhat repugnant to one's conception of an accused person to think that a person who can be arrested, detained in custody, put on bail, restrained by imposition of an order for furnishing security and sent to prison in default thereof---a, person whose liberty may be curtailed or taken away in this way---is not an accused person, and, therefore, not eligible to such rights, privileges and protection as an accused person may have under the law. The absence of the word ' accused ' in Chapter XII, therefore, in my opinion, affords no criterion. As regards (ii), inquiries under the Criminal Procedure Code and trials held for offences under some special law, in the absence of accused persons, are not unknown; they are criminal inquiries and trials all the same. If there is no attendance by the accused or appearance by pleader on his behalf, that part of Section 360 cannot possibly be observed, but that is all that it comes to. This is what happens when evidence is recorded under Section 512 of the Criminal Procedure Code. This again is what happens when the trial or the inquiry is held in the absence of the accused, his attendance being dispensed with under Section 540A of the Criminal Procedure Code, in a case in which he is represented by a pleader: it should be remembered that in such a case the pleader only represents him, but he does not appear by the pleader as he does under Section 205 of the Criminal Procedure Code. As for (iii) I do not see why all the disputing parties should not be considered as belonging to the category of accused persons; and after all, it is not necessary in a criminal trial or inquiry that there should always be present in the proceedings a complainant or somebody who is in the position of a complainant; for what happens when a Magistrate takes cognizance of an offence of his own knowledge or suspicion under Clause (c) of Section 190 of the Criminal Procedure Code? These objections, in my opinion, do not militate against the view that the parties under Section 145 of the Criminal Procedure Code may be regarded as accused persons.

32. Another objection which is said to be more serious is based upon the provision of Section 340 as recently amended. It is said that a person against whom proceedings under Chapter XII are instituted may now offer himself as a witness in such a proceeding, and consequently that we shall be landed in this position that an accused person will be competent to be examined as a witness, and yet no oath shall be administered to him under the law. In my opinion no difficulty need be felt on the ground that the accused person will have to be examined as a witness, for it is not a compulsory examination, but such examination will be held only if the person himself offers to be examined as a witness. The Legislature simply removed in the case of some particular classes of accused persons a disability, which ordinarily attaches to accused persons, and they put it in that way in their statement of Objects and Reasons for the amendment. The accused was at one time not a competent or compellable witness under the English Common Law, but the position has now greatly changed in consequence of a series of statutory provisions.

33. The Indian. Legislature is gradually making an advance in that direction. The farther objection, namely, that in this view such a person will be a competent witness, if he offers himself as one, and yet will not be able to be examined on oath, assumes that the word 'accused' is used in the same sense in all parts of the Code, and that it is used in the same sense in the Indian Oaths Act. For the latter assumption there is no foundation; and as regards the former, I propose to examine whether it is correct to assume that the word is used in one and the same sense in all parts of the Criminal Procedure Code.

34. In the Codes of 1861 and 1871 the word 'accused' and the expressions ' accused person,' ' person accused of an offence,' 'person charged with an offence' and 'offender' were used without anything to indicate that any distinction was meant. The same was the state of things, though not quite so largely, in the Code of 1882. In the Code of 1898 a person against whom an order for maintenance was applied for was designated an accused person, and it was provided that he might tender himself as a witness, and that in such a case he should be examined as such [Section 488, Sub-Sections (7) and (9) of Act V of 1898]. Act V of 1898 was an Act to consolidate and amend the law relating to Criminal Procedure. The Acts of 1923 were merely amending Acts. The policy of the law has to be gathered from a study of the Act of 1898 with the aid of such light as may be afforded by the amendments subsequently made thereto. In the face of the provisions contained in Sub-Sections (7) and (9) of Section 488 of Act V of 1898, to which I have just referred, it cannot possibly be contended that the Legislature used the expression 'accused person' in all parts of the Code in the narrower sense of meaning a person accused of an offence. This conclusion is further supported by a consideration of the amendments introduced in 1923 in at least two places. In Section 340 the words in the Code of 1898 were 'Every person accused before a Criminal Court.' They have been substituted by the words ' Every' person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court.' This to my mind clearly shows that an 'accused person' is not identical with a ' person accused of an offence '; and I can find no reason to hold that the word 'accused', when it was used in the Code of 1898, and where it has retained its place after the amendment, may not include both the classes of persons mentioned above, unless there is something in the context repugnant to that meaning. The other instance is still more clear. In Section 436 of the Code of 1898 the words ' any accused person who has been discharged ' have been altered to ' any person accused of an offence who has been discharged.' This also in my judgment shows that where the word has not been altered it is capable of the wider meaning. Reference may also be made in this connection to Section 499 which applies not merely to persons accused of an offence, but also to those dealt with by Chapter VIII of the Code, and the marginal note to that Section runs as ' Bond of accused and sureties.' In the Chapter dealing with inquiries in trials relating to offences the word 'accused' wherever it occurs necessarily means a person accused of an offence. In the case of general provisions relating to inquiries or trials, in such of them as relate to procedure applicable to all proceedings under the Code, the word 'accused,' in my opinion, is used in its wider significance unless the context suggests a narrower meaning. I can see nothing in Section 360 which suggests the narrower meaning, and in my opinion it will not be right to restrict the meaning of the Section in that way. The Code does not define the word, and the Legislature does not say that it is to be taken in the same sense wherever it has been used in the Code. The word has no well-defined or recognised meaning in other systems of law; the word ' defendant' being more often used instead of the word ' accused.' To build an argument on a supposed policy on the part of Legislature when really there is none, and to assume a uniformity and on such assumption to attempt to explain away diversity is, in my opinion, fallacious. With regard to other matters as well dealt with by the Code there is diversity, and it is futile to attempt to evolve a consistent scheme. I have dealt with one such instance in the case of Bahadur Molla v. Ismail (1924) I. L. R. 52 Calc. 463.

35. To put the narrower interpretation will lead us to absurdities, and in a way revolutionize the system of Criminal Procedure. I give a few instances. A part of Section 344 will not apply, with the result that it will be permissible to remand a person in custody against whom proceedings under preventive Sections have been taken, for any length of time. Section 361 will not apply; the interpretation of the evidence given in a language which the person proceeded against does not understand will not be necessary, and the inquiry held in that manner will be opposed to all principles of criminal jurisprudence. Section 362, Sub-Section (2-A) will not be applicable, and no memorandum of the statement of the person will have to be made though the case be an appealable one, and the Appellate Court will have to deal with the appeal not knowing what the appellant had stated in his examination. Section 364 will not apply, and there will be no provision for recording the examination of such a person. A part of Section 435 will not apply? and if such person is in confinement, no order for his release could be made by the District Magistrate pending the examination of the record by him, as Section 498 does not apply to the District Magistrate. Section 439, Sub-Section (2), will not apply, and there will be no bar to the High Court setting aside an order of discharge without hearing the party in whose favour it has been made, as under Section 440 he will not have a right to be heard. Section 526, Sub-Sections (5), (6) and (8) will not apply, and it will not be possible to make an order for famishing bond, nor will any notice be necessary, and no adjournment of the inquiry will be compulsory in spite of the notification of an intention to move the High Court for transfer. Section 367, Sub-Section (6), provides that an order under Section 118 or Section 123, Sub-Section (3), shall be deemed a judgment; but Section 371 will not apply, and the party dealt with by such an order will not be entitled to a copy of it. Section 383 will have no application, and there will be no provision for issuing a warrant for committing to jail a person who has failed to furnish the bond called for from him under the preventive Sections.

36. I do not see any reason why the limited meaning should be attached to the word so as to give rise to inconsistencies and difficulties, some of which will have the effect of denying justice and others paralysing the administration of it.

37. I am clearly of opinion that the word ' accused ' has not been used in the same sense in all parts of Code. The Code deals with procedaral law, and a Court has always inherent power to shape and mould its procedure in such a way as may be necessary to meet the requirements of each particular case or class of cases. In my opinion the word 'accused' has been used in Section 360 of the Criminal Procedure Code in its wider significance, and the provisions of the Section are applicable to a proceeding held under Section 145 of the Criminal Procedure Code, and the said provisions should, if practicable, be applied in their entirety to such proceedings. If, however, a party or the parties to the proceedings do not care to attend or appear by pleader at the reading over of the deposition, there is no conceivable reason why so much of the provisions as it is possible to apply should not be complied with.

38. In the present case it is not disputed that the provisions of Section 360 of the Criminal Procedure Code were not complied with, and the said provisions being mandatory, the trial must be held to have been vitiated. Accordingly, in my opinion, the order passed by the learned Magistrate should be set aside.

Chakravarti J.

39. The question referred to the Fail Bench for decision is stated in the order of reference in these words:--- 'Whether the provisions of Section 360 of the Criminal Procedure Code are applicable to an enquiry held under Section 145 of the Criminal Procedure Code'. At the very outset I must point out that the question before us is not what is the precise meaning of the word ' accused ' as used in Section 360, Clause (1) of the Criminal Procedure Code. This is necessary, because it seems to me that any answer to the latter question may not furnish any definite answer to the question we are to decide, although it is the use of this word in the Section which has led to the divergence of views on this question.

40. Now the Chapter in which Section 360 finds its place is Chapter XXV, which purports to lay down ' The mode of taking or recording Evidence in Inquiries and Trials'. The Sections which follow are, therefore, of general application, bat an examination of these Sections will make it clear that some of the provisions are of a limited application, and that is owing to the use of the word ' accused ' which has not been defined in the Code.

41. I confess I do not see that the Legislature by the recent amendment of Section 340 of the Code have in any way made the position clearer.

42. The word ' accused', used in Section 340 before amendment, was interpreted by this High Court and other High Courts to have a wider significance than the word has in common parlance in which an accused person is understood to be a person accused of an offence punishable under the law. To make the provisions of Section 340 of the Code applicable to proceedings under Chapters X, XI, XII, etc., the word ' accused ' was read in a wider sense. By the amendment the Legislature have adopted the view expressed by the High Courts, and with a view to make their meaning clear Section 340 was amended as follows:

Section 340.---(i) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.

(ii) Any person against whom proceedings are instituted in any such Court under Section 107, or under Chapter X, Chapter XI, Chapter XII or Chapter XXXVI, or under Section 552, may offer himself as a witness in such proceedings.

43. Therefore 'an accused' before amendment was understood to mean ' any person accused of an offence ' and also a person as party to a proceeding under Chapters X, XI, etc. The Legislature have used the word ' accused ' in a number of Sections in Chapter XXY after the amendments but without the qualification by adding the words 'of an offence'. Can it not, therefore, be understood that the Legislate e left the word to be interpreted according to the context so as to mean one or the other thing.

44. An examination of the Sections of this Chapter shows that the word as used in some of the Sections means 'a person accused of an offence', and cannot mean anything else.

45. The word 'accused' in Section 342, Clause (1), is undoubtedly used in its narrower sense. I may cite other Sections, namely, Sections 344, 347, 348, 353, etc., in which the same limited sense is intended. But there are Sections in which the word is used, as it appears to me, in its wider sense. Section 340, Criminal Procedure Code, as amended, provides that parties to proceedings under the Code, other than those accused of an offence, may give evidence in their own behalf but not parties under proceedings held under Section 110 of the Criminal Procedure Code. Section 342 (4) of the Criminal Procedure Code provides, as it did before amendment, that ' no oath shall be administered to the accused '. In my opinion if the word ' accused' in this Section is limited to a person accused of an offence, a party to a proceeding who has not the benefit of Section 340(2) will also lose the protection of this Section. This could hardly be intended. To take other examples Section 356, Clause (2), runs as follows:

When the evidence of such witness is given in English, the Magistrate or Sessions Judge may take it down in that language with his own hand, and, unless the accused is familiar with 'English, or the language of the Court is English, an authenticated translation of such evidence in the language of the Court shall form part of the record.

46. There is no reason to hold that a party in a proceeding under Chapter XII shall be deprived of the provision of this Section.

47. Then Section 361 runs as follows:

(i) Whenever any evidence is given in a language not understood by the accused, and he is present in person, it shall be interpreted to him in open Court in a language understood by him.

(ii)If he appears by pleader, and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.

47. If the word 'accused' is understood here in its limited sense, then a person who is a party to a proceeding under Section 107 or 110 of the Criminal Procedure Code, may be proceeded with without his understanding a word of the evidence. This could not have been intended when it is borne in mind that these are general provisions for recording evidence.

48. It appears to me therefore that there is no difficulty in reading the word 'accused' in both its wider and narrower sense according to the context of the various Sections in this Chapter.

49. Coming now to Section 360 I do not see any reason why it should not apply to proceedings under Section 145 in so far as the mode of recording of the evidence goes. The evidence has to be read over, as the Section requires, and I do not see what practicable difficulty can arise if the party, whether he is a person accused of an offence or not, takes part at the time of reading r that evidence over to the witness. If such a party does not appear, that can create no practical difficulty. If any party to a proceeding deliberately abstains from taking advantage of the safeguard provided by this Section, he cannot be heard to say that the recording of the evidence was irregular, because it was not read over to the witness in the presence of the accused. On the other hand, the word 'accused', if limited to a person, accused of an offence, will preclude amongst others parties to proceedings under Sections 107 and 110 of the Criminal Procedure Code from watching the reading over of the evidence in which they are as vitally interested as a person accused of an offence. I do not see any cogent reason why this Section which provides 'the mode of taking or recording' evidence should be limited only to cases in which the party is a person accused of an offence.

50. On the whole, therefore, my answer to the question put in the reference is in the affirmative, and I think the word 'accused' in Section 360 is not used in a limited sense but is used in the wider sense of the word.

Per curiam.

51. The result of these judgments is that a majority of the Court is of the opinion that the provisions of Section 360 of the Criminal Procedure Code do apply to proceedings under Section 145 of the Criminal Procedure Code, to this extent at least that as the evidence of each witness is completed it must be read over to him.

52. The majority of the Court is of opinion that the parties to the proceedings are not ' accused ', and that their attendance at the reading over is not necessary.

53. Reading the particular case before us, our decision is that the reference made by the learned Sessions Judge must be accepted, and the order made by the Magistrate in favour of the first party set aside, because the learned Magistrate does not pretend to have complied with the provisions of Section 360 of the Criminal Procedure Code, even to the limited extent indicated.


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