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Tulsidas Mundhra Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1962CriLJ659
AppellantTulsidas Mundhra
RespondentState of West Bengal
Cases ReferredBombay High Court Arunachatam v. Stats of Bombay
Excerpt:
- .....of shri m. roy, presidency magistrate, calcutta, rejecting the petitioner's prayer for examining defence witnesses.2. on the 7th july, 1960, a charge-sheet was submitted by inspector bhuromal of delhi special police establishment against haridas mundhra and tulshi das mandnra under section 120b of the indian penal code read with section 409 and sees. 409 and 477a of the indian penal code. oh the 6th, august, 1960, both accused appeared before the learned chief presidency magistrate and they were directed to furnish bail of rs. 10,000/- each and the case was transferred by the learned chief presidency magistrate of shri m. roy, presidency magistrate, for enquiry. on the 10th october, 1960, the learned magistrate made the following order:both accused are present. copies furnished to each.....
Judgment:
ORDER

D.N. Das Gupta, J.

1. This is a Revisional petition directed against the order of Shri M. Roy, Presidency Magistrate, Calcutta, rejecting the petitioner's prayer for examining defence witnesses.

2. On the 7th July, 1960, a charge-sheet was submitted by Inspector Bhuromal of Delhi Special Police Establishment against Haridas Mundhra and Tulshi Das Mandnra under Section 120B of the Indian Penal Code read with Section 409 and Sees. 409 and 477A of the Indian Penal Code. Oh the 6th, August, 1960, both accused appeared before the learned Chief Presidency Magistrate and they were directed to furnish bail of Rs. 10,000/- each and the case was transferred by the learned Chief Presidency Magistrate of Shri M. Roy, Presidency Magistrate, for enquiry. On the 10th October, 1960, the learned Magistrate made the following order:

Both accused are present. Copies furnished to each of them. In view of the voluminous documents to 7-12-60 for hearing in presence of both sides.

For some reason or other arguments could not be heard on the 7th December, I960, and the date subsequently fixed, namely, 13th January, 1961.

3. On the 1st March, 1961, the learned Magistrate made the following order:

Heard both sides regarding the procedure to be adopted in this case. In view of the nature of offences and the amounts involved in this connection, it will be proper to adopt the commitment proceedings as laid twist in Section 207-A,. Cr.PC

Procedure under Section 207A Cr.PC will be followed hence forth and prosecution does not intend to examine any witnesses before me. After the active order is passed the learned lawyer for the prosecution opens Us case. It is heard in part with reference to certain documents already furnished to the accused.

4. The case was adjourned for further hearing t the 17th April, 1961, and from '17-4-1961 onwards d die in diem.' On the 17th April, 1961, copies of another instalment of documents were supplied to the accused1 and further arguments were heard for the prosecution. Further arguments for the prosecution were heard cit the 19th April, 20th April and 21st April, 1951. On to 22nd April, 1961, defence arguments were heard and the' learned Magistrate noted in the order sheet, 'Arguments' on both sides are accepted as concluded today.' The1 case was adjourned to the 6th May, 1961, for 'final order'. As accused No. 1 who was undergoing imprisonment in connection with another case in Kanpur Jill and was ill, he could not be produced before the learned Presidency Magistrate till before 7th July, 1961, on which date the learned Magistrate made the following order:

To-day is fixed for final order and this is the 6th successive date on which the State of West Bengal has been able to produce accused No. 1 for the first time in court after strenuous efforts. But before I could pass the final order, accused No. 2 has pressed a petition filed yesterday. He prays for allowing him an opportunity to examine 4 witnesses in this Court at a future (late. J have heard both sides regarding this petition. This petition is unwarranted by the law. There is no provision for examining a defence- witness for the purpose or giving evidence before the inquiring Court within the .procedure laid down in Section 207-A, Cr.PC or at any rate before the order of commitment, if any, is passed. The petition is misconceived and unconscionably delayed with a view to gain more time. It lays down briefly in part a summary of long arguments already pursued before me more than two months ago and pressed at a time when the final order is going to be passed.

5. On the 6th July, 1961, the present petitioner had filed a petition before the learned Presidency Magistrate alleging that from the police papers it appeared that for all practical purposes the only evidence against the petitioner consisted of his having issued three cheques for Rs. 2,95,000/-, Rs. 1,75,000/- and Rs. 60,000/-. In paragraph 6: of the petition the petitioner stated that, 'your petitioner has looked into the photostat copies of the three cheques mentioned above and asserts that the body of none of these three cheques and more particularly the first two referred to in Para herein, is in the hand-writing of the petitioner'.

6. Then the petitioner gave the names of four witnesses stating that they were material witnesses and that their evidence would go to establish that the petitioner had no knowledge as to how the cheques came to be issued. The petitioner made a prayer that the court would be pleased to summon those witnesses 'in the interests of justice and for the just decision of the case'. But that petition was rejected by the learned Magistrate on the following date, namely, the 7th July, 1961. This misional petition is against that order.

7. Mr. Dutt appearing for the petitioner contends that the learned Magistrate was wrong in thinking that under the revised procedure in Section 207-A. the accused has been deprived of the right of examining defence witnesses. Sub-section (3) of Section 207-A is quoted below:

At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished.

8. From what I have said above it would appear that copies of documents were furnished to the petitioner in installments. Sub-section (4) of setion 207A is quoted below:

The Magistrate shall then proceed ,to take 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 any one or more of the other witnesses for the prosecution, he may take such evidence also.

9. Mr. Bhose appearing for the State contends that this sub-section makes it clear that the roily . Witnesses that are to be examined by the court are witnesses 1or the prosecutton and not witnesses for the defence'. Stab-sec-tion (4) or any other sub-section of Section 207-A has not in Mr. Bhoseis opinion made any provision for calling and examining defence witnesses. Sub-section (6) is quoted below ;

When the evidence referred to in Sub-section (4) has been taken and the Magistrate has considered all the documents referred to in Section 173 and has, if 'necessary, examined1 the accused for the , purpose of enabling him to explain any circumstances appearing in the evidence against him and given the: prosecution' and the accused an opportunity of being heard, such: Magistrate shall, if he is of opinion that such evidence acne documents disclose no grounds torn committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

Sub-section 17) is quoted below :

When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.

10. After a charge is framed it shall be read and explained to the accused and a copy thereof shall be given to him free of cost. Immediately thereafter the accused shall be required to give either orally or in writ-Ing a list of the persons, if any, whom he wishes to be summoned to give evidence at the trial.

Sub-section (10) is quoted below ;

When the accused, on being required to give in a list under Sub-section (9), has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session as the case may be, and shall also record briefly the reasons for such commitment.

11. Under the old procedure the accused had the right to call evidence once before the charge was framed and a second time after a charge was framed. The Magistrate might not frame the charge at all hearing the defence evidence) if he had framed a charge, he could cancel it if after hearing the evidence led by the defence he was satisfied that the accused should not be committed to the Court of Session. Therefore the crucial point is whether as the result of the amendment of the Code of Criminal Procedure by Act XXVI of 1955 the accused has been deprived of the right of adducing evidence in order to obtain an order of discharge. Section 207A provides for expeditious disposal of a commitment inquiry. Therefore, Sub-section (4) does not provide for examination of all the prosecution witnesses, who would be required to give evidence at the trial. It is not difficult to imagine a case where no prosecution witnesses may be examined, there being no witnesses to the actual commission of the offence alleged. In such a. casa an accused may be committed for trial to the Court of Session, if a prima facie case appears on the documents mentioned in Sub-section (6). Since ordinarily the accused does not adduce any evidence in a Sessions trial, no specific provision appears to have been made for examining .defence witnesses in Section 207A. But Section 540 is always there and it is open to a Magistrate to avail himself of the provisions of that Section whenever ho considers that necessary for the just decision of a case. Section 540 is quoted below :

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Indeed this Section gives very wide powers to the Magistrate in the matter of examination of material witnesses, Mr. Bhose contends that Section 540 does not apply at the stage of commitment inquiry because in an inquiry the Magistrate does not decide any case. It is not possible for me to take such a restricted view of Section 540. The word 'inquiry' is there and I do not find any reason why the word .'inquiry' should exclude a commitment inquiry. Mr. Bhose has particularly drawn my attention to the words 'just decision of the case' and contended that the word 'case' here really means a 'trial'. I am unable to agree. It is true that in a commitment inquiry the Magistrate can neither convict nor acquit the accused but he has the powers to decide whether there is a priina facie case against the accused for being committed for trial and tie has the power to discharge the accused. I do not find any justification for taking such a narrow view of the section. There is nothing in the Section to suggest 'that it dues not apply to the stage of commitment inquiry. Mr. Dutt has placed before me a Division Bench decision of the Bombay High Court Arunachatam v. Stats of Bombay : AIR1956Bom695 , where Chagla, C.J. sitting with Oxide, J. observed as follows on the identical point :

But we must contemplate a case where for some reason or other the prosecution does not choose to call a witness who is material and who supports the case. Is it suggested that there is no power in the Magistrate to call such a witness? In our opinion, the clear answer to this conundrum...is Section S4u, That is a very wide Section and confers powers upon every criminal court at any stage of inquiry, trial or other proceeding under the Code to summon any person as a witness, or examine any person in attendance, thougti not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Therefore, it is obligatory upon the court to summon a person Lf his evidence Is necessary for just decision of the case, and if the accused makes an application to call a particular witness and if that witness is a material witness and would help the Magistrate to come to a Just decision, then undoubtedly Under Section 540 not only the Magistrate would have the discretion to call him, but there would be a duty upon him to summon that witness, and examine him.

12. I would respectfully agree with those observations and I would like to add that although Section 207A was meant to provide for expeditious disposal, it could never have been the intention of the Legislature that the accused would be deprived of the right of examining defence witnesses. It is quite possible that no such provision was made in Section 207A, firstly, because ordinarily an accused person does not examine a defence witness and,' secondly, because Section 540 is always there for the Magistrate to take recourse to.

13. The learned Magistrate, after finding that the1 accused had no right to call a defence witness, observed, 'Suffice it to say for the present that it does not seem to me that it is necessary to hear evidence called by the accused at this stage'. The learned Magistrate has not given any reasons. He has not considered the question-' as to what the defence witnesses mentioned in the petition would have proved. He never went into that question at all.

14. The second reason given by the learned Magistrate for disallowing the petitioner's application was that? it was belated. The learned Magistrate observed:

Now for the first time, only yesterday, it has suddenly dawned upon accused No. 2 that the disputed cheques waif not in his handwriting and for which he wants to examine defence witnesses in this Court. In the circumstances, I am constrained to hold that the petition is vexatious, and it is rejected accordingly. There is no question of accused's prejudice at this stage since i am basing my final order entirely on the large volume of documents placed before me.

Incidentally may mention here that by the words 'final order', which is quoted above, the learned Magistrate meant the order by which the charge was framed under Sub-section (7) of Section 207A. It would appear that no prosecution witness was examined, that the documents on which the prosecution intended to rely were 'voluminous' and that the copies of those documents were furnished to the petitioner In instalments. It also appears that arguments were heard on the 1st March, 17th April, 19th April, 20th April, 21st April and the 22nd April, 1961 but the order complained against was made on the 7th July, 1961. The learned Magistrate did not make any order of commitment or discharge meanwhile as accused No, 1 could not be produced in court. In the circumstances it camwt Be said that there was any unusual delay on the part of the petitioner in making the application for examining defence witnesses. No witness was examined by the prosecution to prove the writing on the bolder of the cheques in question, The reason for this non-examination may be either that the investigating officer, could not trace out the person who had written the body of these cheques or it may be that the prosecution did not consider it necessary to examine the person who wrote the cheques. Attempts were made by the petitioner to find out the writer of the cheques, after examination of the copies of the documents supplied to him. Obviously examination must have taken some considerable time, the documents being voluminous. The petitioner's application for summoning defence witnesses was made not only before the order of commitment (no order of commitment has at all been made in this case) but also before the charge was framed against him. There might have been some difficulty if the application was made after the charge was framed because the question could arise as to whether it was possible for the Magistrate to cancel the charge after it had been framed under Sub-section (7) of Section 207-A, but that question does not arise on the facts of this case where the application for examination of the witnesses has been made before the charge was framed. Incidentally it may be observed that under Sub-section (7) charge has to be framed but the order of commitment has to be made under Sub-section (10) which provides that the Magistrate may make an order committing the accused. The word' used is 'may'. Mr. Dutt points out that even after framing a charge the Magistrate may- refuse to commit the accused because the word is 'may' and not 'shall or must' and from that Mr. Dutt contends that obviously the implication is that defence witnesses may be examined even after a charge has been framed and that if on a consideration of the defense evidence it appears that there is no prima facie case against the accused, the charge may be cancelled and the accused may be discharged. Gut that point does not arise on the facts of this case because the application for examination of defence witnesses was made before the charge was framed; it is not necessary to decide that point and I do not decide.

15. lastly, it is contended by Mr. Dutt that the petitioner was not examined tinder Section 342 of the Code of Criminal Procedure, the provisions of which, art manta; tort is not necessary for me to decide the general .'section whether in a commitment inquiry examination of. the accused is compulsory. Mr. Bhose contends that it is not compulsory, but it appears that in a serious and complicated case like this the petitioner should have been given if r opportunity of explaining the circumstances appeasement in the evidence against him. Mr. Bhpse intends that there is no evidence in this case as no witnesses have been examined and no documents formally proved and that the statements recorded by the police are not evidence, but on this .point also I am unable to agree with. Mr. Bhose. Under the Evidence Act.

Evidence means and-includes (1) all statements Whichtte1 court 'permits or requires to be 'made' before it by Witnesses, in1 relation to matters of fact under inquiry' such stay feather's' ape called oral evidence (2) all dccuments riot althea -for -the inspection of the 'court : Such documents are called documentary evidence.

Clearly all documents which are produced for, inspection of the Court: fail within the definition of 'evidence11 and therefore,' the documents which were produced in this case tot Jrispeptipn of the court under the provisions of-section 20tA were, evidence within the meaning of the Evidence Act That being so, the learned Magistrate, as I have already observed, should have given the petitioner, an opportunity of explaining the circumstances appearing in the evidence against him, No opportunity was given to the .petitioner to state his case before the court.

16. In the circumstances, the order; framing ctiargfi' against the present petitioner is cancelled and the learned Magistrate is directed to consider whether he should summon and examine the defence witnesses; mentioned in the petitioner's application dated the 6th July, 1961, under the provisions of Section 540 of the Code of Criminal Procedure, and then he shall proceed in accordance with law, having regard to the observations made above.

17. The Revisional petition is accordingly, allowed and the Rule is made absolute.


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