N.C. Talukdar, J.
1. This Rule is at the instance of the accused-petitioner K. L. Bhasin for setting aside an order dated the 20th September. 1969 passed by Shri R. P. Roy Chowdhury, Presidency Magistrate, 11th Court. Calcutta framing a charge under Section 406. Indian Penal Code or in the alternative under Section 403. Indian Penal Code against the accused-petitioner in case No. C-3569 of 1968 and for quashing the said proceedings pending before the learned Magistrate. After the arguments were over, the Judgment was reserved and Postponed several times at the prayer of the parties who prayed for time to settle the dispute. The talks of compromise how-ever failed.
2. A petition of complaint was filed in the Court of the Chief Presidency Magistrate. Calcutta by the complainant. Sundar Singh, on behalf of the Associated Indian Enterprises (Private) Ltd. against the accused under Sections 420, 403/406. Indian Penal Code alleging inter alia that the complainant is the Sales Representative of the Associated Indian Enterprises (Private) Ltd.. the main dealers and distributors of Messrs Ashok Layland Ltd : that the accused is the Manasins Director of Bhasin Construction Co. (P) Ltd. carrying on business as Civil Engineering Contractor of the Hindusthan Steel Works Construction Ltd., a Government of India Undertaking; that in November. 1967 the accused approached the complainant's company for supply of three Layland Beaver Tippers valued at about Rupees 1,51,964,33p. each, including sales tax. in connection with the contract placed with the accused company by the Hindusthan Steel Construction Ltd : that the said three vehicles were supplied between 15-2-68 and 8-4-68 as per terms and conditions mutually agreed upon; that after the supply of the first vehicle referred to above, the accused placed orders on 22-2-68 for another identical vehicle on the same terms and conditions and this vehicle also was supplied to the accused on or about 18-9-68; that it was agreed between the parties that a sum of Rupees 25.000.00 would be paid as advance for each vehicle which would continue to remain pledged with the complainant's company as security till the repayment of all dues of the company : that in spite of the said agreement, the accused and his company with the consent of the complainant's company will be authorised to hypothecate with the Hindusthan Steel Works Construction Ltd. the abovementioned vehicles on condition that the latter company will advance to the company of the accused a sum equal to 90% of the price thereof that it was further agreed that the accused will hold the said money in trust for and on behalf of the complainant's company and on receipt and realization thereof will pay over the balance due to the complainant's company immediately; that at the time of the supply of the fourth vehicle in September. 1968 as referred to above, a letter 'no objection' to the pledge of the said vehicle was also sent to Messrs Hindusthan Steel Works Construction Ltd. as agreed upon; that thereafter the Hindusthan Steel Works Construction Ltd. had paid to the accused on 1-11-68 the agreed sum viz.. the sum equal to 90% of the value of the vehicle; that although the accused was under an obligation to pay off immediately the dues of the complainant's company amounting to Rupees 1.27.830.95 p. on account of the fourth vehicle, he did not do so and was deliberately avoiding payment on false pretexts in spite of repeated demands causing thereby wrongful gain to himself and wrongful loss to the complainant's company; that the complainant's company would not have entered into the transaction if not induced by the representation of the accused that he would hold the money received from the Hindusthan Steel Works Construction Ltd. in trust for the complainant's company and pay off the dues of the said company immediately on receipt and realization thereof : that the accused had in violation of the legal construction fraudulently and dishonest-by misappropriated or converted to his own use the money received from the Hindusthan Steel Works Construction Ltd. by wrongful withholding payment of the sum resulting in wrongful gain to the accused and in wrongful loss to the complainant's company; and that process accordingly may be issued against the accused under Sections 420, 403/406. Indian Penal Code. The learned Chief Presidency Magistrate. Calcutta on examining the complainant and on going through the papers issued summons under Sections 420 and 406. Indian P. Code against the accused by his order dated the 19th December. 1968. The case was thereafter transferred to the file of Sri R. P. Rov Chowdhury. Presidency Magistrate, 11th Court. Calcutta before whom three prosecution witnesses were examined by the 25th June, 1969. On 5-7-69 after the examination of P. W. 4. the learned trying Magistrate ordered as follows : 'to 12-7-69 for hearing and framing of charge and cross-examination b/c of one of the witnesses as verbally prayed by the learned defence lawyer'. On 12-7-1969 both the parties filed petitions for adjournment. An adjournment was again prayed for on 30-7-69. The learned trying magistrate ordered on that date as follows : 'to 5-8-69 for framing of charge, if any'. Adjournment was prayed for on the later date and the case was fixed on 6-9-69 'for appearance and framing of charges if any.' 6th September, 1969 was declared a holiday and the case was fixed on the 20th September. 1969 'for framing of charge if any.' On 20-9-69 P. W. 2 was cross-examined before charge and re-examined and some material exhibits viz. exhibits 'A' series were proved through him. The learned trying Magistrate thereafter proceeded to hear the parties and frame alternative charges under Sections 406 and 403. I. P. C. against the accused who pleaded not guilty. 14-11-69 was fixed for cross-examination. There was an adjournment on that date till 22-11-69 on which date an application was, filed on behalf of the defence stating inter alia that the accused wanted to move the High Court against the order framing charges against him and the learned trying Magistrate ultimately fixed 10-12-69 for cross-examination in case no stay order was received from the High Court On 25-11-69 the present Rule was obtained impugning the charges framed and the maintainability of the proceedings.
3. Mr. Nalin Chandra Banerjee, Advocate (with Mr. Dipak Kumar Sengupta. Advocate) appearing in support of the Rule On behalf of the accused-petitioner has made a four-fold submission. The first contention of Mr. Banerjee relates to procedure based on the order passed by the learned trying Magistrate deferring the cross-examination before charge of P. W. 2 from 24-6-69 to 20-9-69. till all the other prosecution witnesses were examined and the prosecution case was closed, inasmuch as the same is not enjoined under the Code. Mr. Banerjee next contended that the framing of the alternative charge under Section 406. I. P. C. or under Section 403. I. P. C. has been bad in law. The third contention of Mr. Banerjee is that the facts disclosed a dispute of a civil nature relating to a breach of agreement between two parties already known to each other and between whom there was a running transaction followed by substantial payments. It was further urged by Mr. Banerjee in this context that the previous transaction consisting of three vehicles was completed without any let or hindrance and in the case of the fourth vehicle, dispute arose between the parties within the bounds of the agreement and as such the institution of the criminal proceedings has been an abuse of the process of the court. The fourth and the last contention of Mr. Banerjee related to the merits of the case based On the evidence adduced viz., that the materials on the record do not warrant the charges framed. Mr. Ajit Kumar Dutt. Advocate (with Messrs Anjit Kumar Ganguly and. Rathindra Kumar Dey. Advocates) appearing on behalf of the complainant-opposite party No. 1. Sundar Singh, op-posed the Rule. Mr, Dutt submitted that though there is no specific provision for calling a witness for cross-examination at this stage under Section 252 of the Code of Criminal Procedure, it is so allowed as a rule of practice in the exercise of judicial discretion. He contended however that this is at best an irregularity which can be cured by excluding from consideration the evidence that has been brought on the record by such cross-examination before charge and the re-examination that followed. Mr. Dutt next contended that in view of the provisions of Section 236 of the Code of Criminal Procedure the framing of the alternative charge, in the facts and circumstances of the present case, has not been illegal or improper as alleged or at all, Mr. Dutt thirdly submitted that the dispute is not one of a civil nature, consisting of a running transaction and part payments made as alleged. In this context Mr. Dutt contended that the present case relates to an independent contract having nothing to do with the earlier contract dated 17-11-67 regarding the three vehicles, and that in view of the evidence on the record that the accused obtained the payment from the Hindusthan Steel Works Construction Ltd.. he should not have converted the same to his own use by wrongfully withholding the payment of the same to the complainant, causing thereby wrongful gain to him and wrongful loss to the latter. Mr. Dutt lastly submitted that it is premature to quash the proceedings at this stage and in any event the evidence on record having made out a prima facie case against the accused the charge framed should not be quashed. Mr. A. B. Pal. Advocate, appearing for the State also opposed the Rule and adopted the submissions of Mr. Dutt.
4. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the evidence on record. I will now proceed to determine the first contention raised on behalf of the accused-petitioner. It is a material point touching procedure and going to the root of the case. Mr. Banerjee has objected to the deferring of the cross-examination before charge of P. W. 2 from 24-6-69 to 20-9-69. till all the other prosecution witnesses were examined and the prosecution case was closed and has impugned the admissibility of the materials let in thereby. Mr. Dutt submitted that this was at the instance of the accused and the materials disclosed are mostly in his favour causing thereby no prejudice. which is the determining factor in such cases and that in any event the consequent irregularity may be cured by excluding the materials so disclosed from consideration. The question however is one of principle and of law and it is better to lift the cloud. if any, at this stage so that later on the maintainability of the trial and the legality of the 'orders passed therein may not be challenged. The present objection in any event has been taken at the earliest stage and should be disposed of on merits. A reference to the ordersheet would reveal that after the case was transferred to the present incumbent, one witness viz., P. W. 1. J. L. Sinha. was examined-in-chief on behalf of the prosecution on 28-5-69. There was no cross-examination before charge. P. W. 2. Sundar Singh's examination-in-chief started on 23-6-69 and continued till 24-6-69. It was noted in the ordersheet dated the 24th June, 1969 that the examination of the witness was completed. There was no cross-examination before charge of the said witness and no prayer appears to have been made in that regard on behalf of the defence. On the next date viz.. 25th June. 1969 P. W. 3, S. Sankaran was examined-in-chief and his evidence was completed on the same date. The prosecution thereafter prayed for an adjournment and the learned trying Magistrate by his order of the same date fixed 5-7-69 for further witness. On 5-7-69 the prosecution examined P. W. 4. P. A. Abraham and completed the said evidence. The learned Presidency Magistrate thereafter passed the following order : 'To 12-7-1969 for hearing and framing of charge and B/C of any one of the witnesses as verbally prayed by the learned defence lawyer'. This order has started the trouble. On 12-7-69 both the parties filed an application for adjournment for effecting a compromise and the learned Magistrate fixed 30-7-69 for further orders. On 30-7-69 the case was fixed on 5-8-69 for framing of charge if any. On 5-8-69 the case was again adjourned till 6-9-69 for appearance of the accused and for framing of charge if any. On 6-9-69 was declared a holiday and on 8-9-69 the learned trying Magistrate fixed 20-9-69 for framing of charge if any. On 20-9-69 however, before the consideration of the charges the learned trying Magistrate allowed P. W. 2 to be cross-examined before charge and to be re-examined. Some material points were taken in such cross-examination and some material documents were proved in course of the same. Ultimately by his order of the same date the learned trying Magistrate framed alternative charges under Section 406/403, I. P. C. against the accused who pleaded not guilty. This is bad in law and on merits. On merits the order allowing cross-examination before charge has been bad and improper on several counts, as would be borne out by the ordersheet. Firstly, the oral prayer made, apart from being insufficient is also belated and even if any such oral prayer was made in time, necessary orders should have been passed thereon and the same should have been recorded in the ordersheet. The orders dated 24-6-69 and 25-6-69 are silent on the point and it is for the first time that there is a reference on 5-7-69 to any such oral prayer having been made. Thereafter however, the said direction appears to have been given the baby to and all alone it is fixed 'for framing of charge, if any'. It is passing strange therefore that so late as on 20-9-69 after the closure of the prosecution evidence, the cross-examination before charge of P. W. 2 was allowed. The order therefore is bad on merits. It is also bad in law because there is no provision for recalling witnesses for cross-examination before charge under Section 252 of the Code of Criminal Procedure. Only in practice, it is allowed sometimes by some courts in the exercise of their discretion. This is not however a statutory right. The present case is under the warrant procedure and no charge was framed. Under Section 256 of the Code of Criminal Procedure, cross-examination of the prosecution witnesses after the charge is framed, can be deferred. Section 256 of the Code of Criminal Procedure therefore does not help. The procedure that has been followed in this case accordingly is not in accordance with law and the orders impugned are de hors the statute. The illegality in procedure starts in fact from 5-7-69 uptil 20-9-69 when the charges were framed.
5. The point that now abides consideration is whether the defect is an irregularity or an illegality causing prejudice and vitiating the proceedings. Mr. Dutt has submitted that there is scope for curing the irregularity by omitting from consideration the inadmissible evidence let in by such cross-examination before charge of P. W. 2. In this context he referred to the case of Pulukuri Kotawa v. King Emperor reported in 74 Ind App 65 : AIR 1947 PC 67 and relied on the observations of the Judicial Committee that if however, the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537 of the Code of Criminal Procedure. The Judicial Committee however observed further that when a trial is conducted in a manner different from that prescribed by the Code of Criminal Procedure that trial is bad and no Question of curing an irregularity arises. I respectfully agree with the said observations and on the question of prejudice it cannot be overlooked that the abovementioned cross-examination before charge has brought on the record some material documents. It is better to lift the cloud in the first blush than to leave scone for future objections to the maintainability of the proceedings.
6. The point has to be approached from the standpoint of a non-conformance to the procedure established by law. Without multiplying the cases a reference may be made to the case of Nazir Ahmed v. King Emperor reported in 63 Ind APR 372 : AIR 1936 PC 253 (2) Lord Roche delivering the judgment of the Judicial Committee observed at pages 381 and 382 that 'the rule which applies is a different and not less well-recognized rule namely that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.' There is no cloud on the position after the passing of the Constitution and it is pertinent to refer to Article 21 of the Constitution of India laving down that 'No person shall be deprived of his life or personal liberty except according to procedure established by law.' In conformance to the aforesaid principles I hold that the orders referred to above as passed by the learned trying Magistrate are de hors the procedure laid down by the statute besides being unsustainable on merits also. The first contention of Mr. Banerjee relating to procedure accordingly succeeds.
7. In view of my findings on the first point, it is not necessary for me to consider and determine the other points raised by Mr. Banerjee on the merits of the case and I would only make it clear, in view of the ultimate order I am going to pass, that I make no observations as to the merits of the other contentions raised by the respective parties.
8. In the result. I make the Rule absolute; set aside the orders passed by the learned trying Magistrate from 5-7-69 after the examination-in-chief of P. W. 4 onwards including the order dated the 20th September. 1969 allowing cross-examination before charge of P. W. 2 and framing alternative charges under Section 406/403. I. P. C. against the accused-petitioner; and I direct that the case shall go back to the court below for being disposed of by some other Magistrate in accordance with law and expeditiously from the stage reached on the 5th July, 1969 after the examination-in-chief of P. W. 4.
9. The records are to so down as early as possible.