Sankar Bhattacharyya, J.
1. The short but interesting question of law that seeks an answer in mis revisional application is, whether in a criminal trial (other than a Sessions trial), where the accused examines witness in support of his defence, he or the prosecution should address oral arguments first. The question arises in this way.
2. Aloke Biswas, the opposite party No. 2 in this application filed a complaint before the learned Chief Metropolitan Magistrate, Calcutta, against the petitioners for alleged commission of offences under Sections 323, 324 and 504, I.P.C. After taking cognizance, the learned Chief Metropolitan Magistrate made over the case to the learned Metropolitan Magistrate, 17th Court, under Section 192(1), Cri. P.C. for inquiry or trial.
3. Pursuant to processes issued by the learned Magistrate the petitioners appeared before him after which, five witnesses were examined by the prosecution and charges were framed against the petitioners under Sections 323, 324 and 504, I.P.C. After cross-examination of the witnesses for the prosecution, the statements of the petitioners were recorded under the provisions of Section 313, Cr P.C. Thereafter, they examined two witnesses in support of their defence and a date was fixed for hearing of arguments.
4. The controversy, as it appears, started on the said date over the question as to which of the parties should address oral arguments first. The prosecution contended that since the accused-petitioners examined witnesses in support of their defence, they should advance oral arguments first. On the other hand, a two-fold argument was advanced on behalf of the accused-petitioners to drive home their point that the prosecution should argue its case first regardless of whether the defence examined any witness or not. The first branch of their argument was that the onus of proving its case being always upon the prosecution, it must argue its case first to discharge its onus. It was, therefore, quite immaterial whether or not the defence examined any witness and the above position in law could not be altered by the mere examination of witnesses by the defence. The next branch of the argument was that if the accused be compelled to argue his case first without knowing the nature of arguments to be advanced by the prosecution, he would be seriously prejudiced in countering the prosecution argument, having only the right to reply.
5. After hearing both sides, the learned Metropolitan Magistrate, by a lengthy order quoting copiously from different texts and decisions of some High Courts and the Supreme Court (which, in our opinion, are completely beside the point and irrelevant in the present context) overruled the arguments of the petitioners and directed them to argue first, Aggrieved thereby, the petitioners filed this revisional application which has been heard as a contested one.
6. We have heard at length Mr. B. K. Bhose for the petitioners, Mr. Paresh Chandra Dhar for the opposite party No. 2 and Mr. Balai Chandra Roy for the opposite party No. 1, the State.
7. Mr. Bhose's arguments before us are almost identical to the arguments advanced on behalf of the petitioners in the Court below and need not be re-stated. Mr. Paresh Chandra Dhar, appearing for the opposite party No. 2, strenuously opposes the application and supports the impugned order for reasons which are being discussed below. It should be mentioned that Mr. Roy appearing for the State supports the arguments of Mr. Bhose.
8. The first contention of Mr. Dhar is that unlike Section 234, Cri P.C. relating to sessions trials, there is no specific provision in the Code relating to warrant cases, summons cases and cases tried under the summary procedure which enjoins the prosecution to advance its arguments first. The reason for the absence of any such provision, according to Mr. Dhar, is that while in a sessions trial the prosecutor has the privilege of opening his case under Section 226, such privilege is not available to him in cases triable under the warrant procedure, summons procedure or summary procedure. For the above reason, argues Mr. Dhar, the legislature has intentionally refrained from making a provision similar to Section 234 with respect to cases triable under the warrant procedure, summons procedure and summary procedure.
9. We are unable to accept the above contention because the right to open the case for the prosecution does not, in our opinion, place the prosecutor in a more advantageous position than in trials under the warrant procedure, summons procedure etc. This would also be abundantly clear on a plain reading of Section 226 where the term 'opening the case' has been indicated to mean 'describing the charge against the accused and stating by what evidence the guilt of the accused is proposed to be proved'. Therefore, 'opening the case for the prosecution' means nothing more than this that the prosecutor describes the charge against the accused and states the materials collected during investigation to substantiate the charge. We, therefore, fail to see any special reason, as urged by Mr. Dhar, which might have prompted the legislature to enact Section 234 enjoining the prosecution to argue its case first while refraining from making a similar provision with respect to other trials. At any rate, as the above section is applicable to sessions trials only, it will be futile to deal with it any more. For proper decision of the question involved in this application, we feel we should rather refer to Section 314 appearing in Chap. XXIV under the heading 'general provisions as to inquiries and trials'. As stated already while Section 234 is applicable to sessions trials only, Section 314 is general in its application as the heading clearly indicates and is applicable to all inquiries or trials except, of course, sessions trials. Sub-section (1) of the above section runs thus:
314. Oral arguments and memorandum of arguments.
(1) Any party to a proceeding may, as soon as may be, after the close of his evidence, address concise oral arguments and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record.
10. It is thus quite evident that the right to address oral arguments accrues to a party after he closes his evidence although, the exercise of such right may be deferred for the convenience of the court as well as the parties as is indicated by the words 'as soon as may be after the close of his evidence.'
11. It may be noted that in all trials whether under the warrant procedure, summons procedure or summary procedure, the prosecution first closes its evidence and should, therefore, but for the mandatory provisions of Section 313, advance oral arguments first. Section 313 lays down that in every inquiry or trial, for the purpose of enabling the accused to explain any circumstances appearing against him the Court must, before the accused is called on for his defence, question him generally on the case. After the above provision is complied with, the accused is called upon to enter on his defence and may examine witnesses, if he so desires.
12. In the context of the provisions of Sections 313 and 314 it becomes manifestly clear that the right of the prosecution to argue its case after the close of its evidence merely remains suspended because of the provisions of Section 313. The right revives after the examination of the accused under Section 313 or the examination of witnesses by the accused, as the case may be. Once the right is revived, Section 314 automatically comes into play and the order of addressing oral arguments as laid down in the said section must, thereafter, be adhered to. The logical conclusion that follows, therefore, is that since the prosecution first closed its case, it has to address oral arguments first, to be followed by the oral arguments, if any, to be advanced by the defence. A contrary view, in our opinion, will clearly militate against the letters and spirit of Section 314 of the Code. Although, therefore, Section 314 does not, unlike Section 234, expressly provide that in trials other than sessions trials the prosecution shall argue its case first after the close of the defence evidence, if any, the position appears to be the same both in sessions trials and other trials before the Magistrates.
13. Another important aspect of the question deserves serious consideration. The golden principle of criminal jurisprudence is that an accused person must be presumed to be innocent unless the charge against him is proved beyond reasonable doubt. It is also one of the cardinal principles of criminal law that the onus of proving a charge against the accused lies upon the prosecution which has to be discharged by adducing cogent and convincing evidence. Addressing oral argument is undoubtedly a part of the process of proving the charge against the accused because, during the argument, the prosecutor analyses the evidence to satisfy the court about the guilt of the accused. If, therefore, the accused is called upon to address oral arguments first before the prosecution has advanced its arguments, the effect thereof would be to throw the onus on the accused to establish his innocence by disproving the prosecution case. That apart, the accused will be seriously prejudiced in his defence if he is to argue his case without knowing what arguments will be advanced by the prosecution. Such a view clearly offends the fundamental principle of criminal justice, namely, the presumption of innocence of the accused.
14. For the above reasons, we are of the opinion that the impugned order of the learned Metropolitan Magistrate directing the petitioners to address oral arguments first is clearly illegal and cannot be sustained. We, therefore, allow the application and set aside the above order. The learned Metropolitan Magistrate will now dispose of the case after hearing the arguments of the parties in the light of our observations made above. We, however, want to make it clear that we are not expressing any opinion as to which party should argue first in proceedings under Chap. VIII-IX or X of the Cri P.C 1973.
Monoj Kumar Mukherjee, J.
15. I agree.