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PETITIONER: RAMNARAYAN MOR AND ANOTHER

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 16/12/1963

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR  949            1964 SCR  (5)1034  CITATOR INFO :  RF         1972 SC 496  (2)

ACT: Code  of Criminal Procedure (Act V of 1898), ss. 173(4)  and 207 A(6)--"Evidence", meaning of-If includes documents under s. 173(4).

HEADNOTE: On  the  receipt of a police report,  the  Magistrate  First Class Akola took cognizance of offences under ss. 406,  408, 409, 120B and 477A Indian Penal Code against the appellants. The investigating Officer furnished the accused persons with copies  of documents which are required by s. 173(4) of  the Code  of  Criminal  Procedure  to  be  furnished.   At   the commencement of the enquiry under Ch.  XVIII of the Code  of Criminal Procedure, the Public Prosecutor informed the Court that  the evidence in the case being "  mainly  documentary" the  prosecution did not desire to examine any witnesses  at the stage of the committal proceeding.  After the  arguments on  behalf  of  the State and the  accused  were  heard,  an application was submitted by the Prosecutor that the accused be  examined by the Magistrate under s. 207-A(6) of the Code of Criminal Procedure. The   application  was  granted  by  the  Magistrate   after rejecting  the objections raised by some of the accused  and the  accused were I ordered to remain present in  court  for examination under s. 207-A sub-ss. (6) and (7): Against that order  the appellants moved the High Court in  revision  but without success. It  was urged on behalf of the appellant that in an  enquiry for  commitment to the Court of Session the  accused  person can be asked to explain circumstances appearing against  him only from the oral evidence recorded under s. 207-A(4),  and not   from  circumstances  appearing  from   the   documents furnished under s.  173(4) of the Code, Held (per B.P. Sinha, C.J. K. Subba Rao and J.C. Shah,  JJ.) that  the legislature has used the expression "evidence"  at three  places in cl. (6) of s. 207A of the Code of  Criminal Procedure.   In the first clause of sub-s. (6) the  evidence

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is,  as the statute expressly enacts "the evidence  referred to in sub-s. (4)" and the expression "that such evidence and documents  disclose  no grounds for  committing"  indicates, having  regard to the context that the evidence referred  to in  sub-s.  (4) alone is comprehended thereby.  But  in  the context of the explanation of the accused for the purpose of enabling him to explain any circumstances appearing  against him,  the  legislature  has  used  the  expression  "in  the evidence  against him", which is not expressly qualified  by reference 1065 to  sub-s.  (4)  nor does any  implication  arise  from  the context which would suggest that it has a limited content. (ii)The  legislature did not intend by using the  expression "examined  the  accused for the purpose of enabling  him  to explain any circumstances appearing in the evidence  against him"  that  the opportunity to be given to the  accused  for explaining  circumstances appearing from the oral  evidence. Such  a construction of the clause, by putting a  restricted interpretation upon the meaning of the word ’evidence’ would in  many cases involve great prejudice to the accused.   The circumstances appearing against the accused would in a large majority  of cases be from the statements recorded under  s. 161(3) under s. 164 and other documentary evidence  referred to  in  s. 173(4) and if the accused is not to be  given  an opportunity  to  explain  those circumstances,  to  a  large extent  the  judicial character of the proceeding  would  be impaired.   The  accused may have a complete answer  to  the documents on which the prosecution seeks to rely.  But if by the words used in cl. (6) the Magistrate is prohibited  from examining  him in respect of those documents  the  provision might  frequently operate oppressively against the  accused. The  scheme of s. 251A of the Code which was brought on  the statute book simultaneously with s. 207-A by Act 26 of 1955, also furnishes an indication that in the examination of  the accused for enabling him to explain circumstances  appearing in  the  evidence against him, documents referred to  in  s. 173(4) cannot he excluded. (iii)Section  207A(6) contemplates examination only for  the purpose  of explaining any circumstances  appearing  against the  accused.   Declining  to  avail  himself  of  such   an opportunity and reserving his right to make a defence at the trial  do not amount to refusal to answer a question and  no presumption  can arise under illustration (h) to s.  114  of the Evidence Act against such refusal. The  scheme  of cl. (6) of s. 207A is not the  same  as  the scheme  of s. 342 of the Code of Criminal Procedure for  the reason  that under the latter section the court can ask  the accused  any general question to explain  any  circumstances appearing against him. (iv)Normally  in a criminal trial, the court can proceed  on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the  amended ’Code  the Legislature has in s. 207-A prescribed a  special procedure in proceedings for commitment of the accused.  The record  consists of the oral evidence recorded under  sub-s. (4)  of  s. 173, and it would be difficult  to  regard  only those   documents  which  are  duly  proved  or  which   are admissible without proof as "evidence" within the meaning of cl.  (6)  and not the rest.  Section 3 of the  Evidence  Act also  supports that proposition.  The expression  "evidence" as  defined in s. 3 of the Evidence Act means  and  includes all  statements  which the court permits or requires  to  be made 1066

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before  it by witnesses and all documents produced  for  the inspection  of the Court.  There is no restriction  in  this definition to documents which are duly proved by evidence. (Per  Ayyangar and Hidayatullah JJ. (dissenting):  The  word ’evidence, in sub-s. (6) of s. 207A of the Code of  Criminal Procedure   is  confined  to  the  oral  evidence   of   the prosecution  witnesses.   The word ’evidence’  occurs  three times in this sub-section.  In the opening words of the sub- section  where  it  occurs  first  referring,  as  they  do, specifically  to the evidence recorded under sub-s. (4)  the word  is obviously used only in the sense of  oral  evidence recorded   under  sub-s.  (4)  together  with   the   cross- examination  and  reexamination permitted  by  sub-s.-  (5). This is followed by the words ’the Magistrate has considered all  the  documents  referred  to  in  s.  173’.   Documents therefore  are  treated  here  as  a  distinct  category  of material  distinct  from  "evidence"  and  the   sub-section proceeds  on the existence of a dichotomy between these  two species  of material which the Magistrate has to  take  into account  before ordering committal.  If this  dichotomy  and this  distinction between ’evidence" and documents  underlie the  texture  of  the entire subsection,  it  could  not  be disputed  that  the word ’evidence’ on the  second  occasion when  it occurs in sub-s.(6) has to be read as meaning  only the  evidence of witnesses examined under sub-s.  (4).   The last  place  where the word ’evidence’ occurs  in  the  sub- section is the passage reading ’such Magistrate shall if  he is  of opinion that such evidence and documents disclose  no grounds for omitting the accused persons for trial’.  It  is clear  that here the word ’documents’ denotes the  documents referred  to  earlier namely those in s. 173 and  these  are again distinguished from ’evidence’.  Here also there cannot be any doubt that the word ’evidence’ is a reference to  the evidence recorded under sub-s. (4). Sub-sections  (4),  (6)  and  (7) draw  a  clear  and  sharp distinction between ’evidence’ and ’the documents’  referred to in s. 173 of the Code of Criminal Procedure. No importance should be attached to the absence of the  word ,such’ and the use instead of the word ’the’ in the relevant clause.  The definite article ’the’ obviously in the context refers to the ’evidence’ already referred to in the  opening words  of the subsection, namely that recorded under  sub-s. (4). Ramdas  Kikabhai v. State of Bombay, A.I.R. 1960  Bom.  124, not relied on. Re Macmanaways, [1951] A.C. 161, referred to. (ii)The Magistrate would have no jurisdiction to examine  an accused under s. 342(1) of the Code (a) either when no  oral evidence for prosecution has been recorded or (b) in respect of  matters about which there is no evidence adduced in  the sense in which the expression is used in the Indian Evidence Act  for enabling the court to hold any fact in issue  or  a relevant fact to 1067 be   proved.    The  same  principle  applies  as   to   the circumstances  in  which an accused can be examined  by  the Magistrate under S. 207-A(6).   Where there is  no  evidence recorded under sub-s.(4) of S. 207-A, the Magistrate has  no jurisdiction  to examine an accused under S.  207-A(6).   In the  present  case  the Magistrate has  no  jurisdiction  to direct the accused to appear before him for examination. Bachchan Lai v. State, A.I.R. 1957 All. 184 and Bahawala v.   Crow n, I.L.R. 6 Lah. 183, relied on. (iii)The  accused should be examined under S.  207A(6)  with

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reference  to what appears against him in  evidence  legally admissible before the court, while he is not to be  required to commit himself by his answers in respect of matters which would be proved against him only at the trial and as regards which  he  would be examined later under S.  342(1)  of  the Code.   Interpreted otherwise the section would give a  good chance   for  fishing  expedition  and  of  modulating   the prosecution case to destroy the accused’s explanation at the appropriate stage.  The accessed cannot be asked under  sub- s. (6) with reference to documents mentioned in s. 173(4) of the  Code  unless  those are  legally  proved.   If  without evidence,  properly  so  called, a  magistrate  examines  an accused,   he   would   be  converting   himself   into   an investigating   agency   and  there   is   therefore   every possibility of the accessed being prejudiced and that  might be the very reason why the sub-section has been framed in  a manner  to  avoid the result.  The position  is,  of  course different  under  s.  251A(2) where the  examination  is  by virtue of the statute and so it stands in a class apart. (iv)The Magistrate has no jurisdiction to ask question under sub-S.  (6) with the reference to documents mentioned in  s. 173(4) of the Code as they are not evidence under sub-s. (4) of  s.  207-A  of the Code.  The  expression  ’evidence’  as defined  in  s.  3  of the Evidence  Act  gives  merely  the dictionary  meaning of. the word and it has  no  application for  interpreting  the  word ’evidence’  in  sub-s.(6).  The expression  ’evidence’  is  used  throughout  the   criminal procedure  as meaning judicial evidence i.e.  oral  evidence tested by cross-examination if any and documents which  have been  proved  and which are relevant  and  admissible.   The expression ’documents produced for inspection of the  court’ under s. 3 of the Evidence Act means merely "for  inspection of the Court" and the court cannot base its findings on  the contents of such documents. (v)The  court will be entitled under illustration (h) to  s. 114  of  the  Evidence Act to  draw  adverse  inference  for refusal  to  answer  question put under s.  207A(6)  to  the accused. (vi)The  rule  of  interpretation which  is  applicable  was stated  by  Lord Radcliffe: "the meaning which  these  words ought  to be understood to bear is not to be ascertained  by any  process  akin to speculation.  The primary  duty  of  a court of law is to find the natural meaning of the words  in the context in which they 1068 occur,  the context including any other phrases in  the  Act which  may throw light on the sense in which the  makers  of the Act used the words in dispute." Re Macmanaway In re, [1951] A.C. 161, relied on.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 164 of 1963. Appeal  by special leave from the judgment and  order  dated August  30, 1963 of the Bombay High Court in (Nagpur  Bench) in Criminal Application No. 197 of 1963. A.S. Bobde, O.C. Mathur, J.B. Dadachanji and Ravinder Narain, for the appellants. M.C. Setalvad, H.R. khanna and R.H. Dhebar, for   the respondent. December  16,  1963.  The Judgment of B.P. Sinha,  C.J.,  K. Subba  Rao, and J.C. Shah JJ. was delivered by Shah  J.  The dissenting Opinion of M. Hidayatullah   and  N.   Rajagopala

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Ayyangar JJ.   was delivered by Ayyangar J. SHAH  J.-A  police  report was lodged in the  Court  of  the Magistrate  First Class, Akola, against the  appellants  and fifty-five  others on charges for offences punishable  under ss.  406, 408, 409, 120-B and 477-A Indian Penal Code.   The Investigating  Officer  furnished the accused  persons  with copies  of documents which are required by s. 173(4) of  the Code  of  Criminal  Procedure  to  be  furnished.   At   the commencement of the enquiry, the Public Prosecutor  informed the  Court  that  the evidence in  the  case  being  "mainly documentary"  the prosecution did not desire to examine  any witnesses  at the stage of the committal proceeding.   After the  arguments on behalf of the State and the  accused  were heard,  an application was submitted by the prosecutor  that the accused be examined by the Magistrate under S. 207-A (6) of  the  Code of Criminal Procedure.   The  application  was granted  by  the Magistrate after rejecting  the  objections raised  by some of the accused and the accused were  ordered to  remain present in Court for their examination  under  s. 207-A sub-ss. (6) & (7).  Against 1069 that order the appellants moved the High Court of Bombay  in revision,  but  without success.  With  special  leave,  the appellants have appealed to this Court. The appellants say that in an enquiry for commitment to  the Court of Session the accused person can be asked to  explain circumstances  appearing  against  him only  from  the  oral evidence   recorded   under  s.  207-A(4)   and   not   from circumstances  appearing from the documents furnished  under s. 173(4) of the Code. A brief review of the provisions relating to proceedings for commitment  of  the accused to the Court of Session  may  be useful in considering the plea of the appellants.  The Court of  Session  has except in cases expressly provided  in  the Code  no  power to take cognisance of a case directly  on  a complaint  or  a report of a police officer or  on  its  own motion.   The case must be committed by a Magistrate  compe- tent  in that behalf.  Commitment under the Code  predicates some  enquiry  into  the  case  for  the  prosecution  by  a Magistrate who must be satisfied that there is a prima facie case  against  the accused.  The enquiry  is  calculated  to serve  a dual purpose to give to the person accused  of  the serious  offence with which he is charged information  about the case together with the nature of the evidence with which it  is  sought to be established, and at the  same  time  to eliminate  cases in which there is no reasonable ground  for conviction.   For this purpose, under the Code  of  Criminal Procedure  as  originally enacted in all  cases  exclusively triable by the Court of Session, or where in the opinion  of the  Magistrate  the case ought to be tried by  such  Court, witnesses  intended  to  be examined  before  the  Court  of Session  were examined before the Magistrate,  documents  on which  the prosecution sought to rely were duly  proved  and tendered  in  evidence and if the Magistrate  was  satisfied that there was sufficient ground for committing the  accused for  trial,  a charge was framed on which  the  accused  was committed  for  trial.  But this procedure was  often  found cumbrous and led to great delay in the trial of criminal 1070 cases, without affording any real compensating advantage  to the  accused at the trial.  The Legislature with a  view  to secure  expeditious disposal of cases tried by the Court  of Session,  incorporated  by Act 26 of 1955  s.  207-A,  which prescribed  for  enquiry  in proceedings  commenced  on  the report  of  a  police officer,  a  simpler  procedure  while

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maintaining  the original procedure for commitment of  cases commenced otherwise.  Simultaneously with the  incorporation of s. 207-A provision was incorporated in s. 173(4) imposing a statutory obligation upon the police officer to furnish or cause to be furnished before the commencement of an  enquiry or  trial,  copies of the police report,  first  information report,  and  of all other documents  or  relevant  extracts thereof on which the prosecution proposed to rely, including statements  and  confessions  recorded  under  s.  164,  and statements  recorded under s. 161 (3) of the Code.  The  new scheme  for enquiry in proceedings for commitment  commenced on police report is briefly this: on receiving a report of a -police  officer,  the Magistrate fixes an  early  date  for holding  the  enquiry  , and if before the  date  fixed  the ’Prosecutor  applies  for process to  compel  attendance  of witnesses or production of documents or things he may do so. After satisfying himself at the commencement of the  enquiry that  the accused has been furnished with the documents  re- ferred  to in s. 173(4), the Magistrate records evidence  of persons  produced  by the prosecution as  witnesses  to  the actual  commission of the offence, and if the Magistrate  is of opinion that it is necessary in the interests of  justice to  take  the evidence of other witnesses he may  take  such evidence,  the accused having liberty to  cross-examine  all such  witnesses examined by the prosecutor or by the  Court. All  the documents on which the prosecutor seeks to rely  in support  of the case for the prosecution, statements of  all witnesses  recorded  in the course of investigation  by  the Investigating  officer,  report of the police  officer,  the first  information, and confession and statements,  if  any, recorded  under  s.  164 Criminal Procedure  Code  are  made available to the accused.  Witnesses to 1071 the  actual  commission of the offence if  produced  by  the prosecutor  and  witnesses  called at the  instance  of  the Magistrate are also examined in his presence.  The object of these  provisions is manifestly to give full information  to the  accused  about the entire pattern  of  the  prosecution case.   The  documents of which copies are supplied  to  the accused  and the oral evidence of witnesses examined  before the  Magistrate  from the record of the  Magistrate.   These documents together with the examination of the accused,  the list  of witnesses furnished by the accused, which form  the record  of the enquiry, together with the charge has  to  be sent to the Court of Session.  If the order of commitment is erroneous  on a point of law, it may be quashed by the  High Court  in exercise of its jurisdiction under s. 215  of  the Code  on  a  consideration of this  record.   The  order  of discharge may in appropriate cases be revised in exercise of the  revisional jurisdiction by the Court of Session or  the High Court on the same record. Sub-sections (6) & (7) of s. 207-A on which the argument  in this case principally turns provide:               (6)   "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, examined               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 and documents disclose  no               grounds for committing the accused person  for               trial,  record his reasons and discharge  him,

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             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."               (7)   "When,  upon such evidence being  taken,               such   documents   being   considered,    such               examination               1072               (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." The  scheme  of  the two sub-ss. (6) &  (7)  is  plain:  the Magistrate  holding  an  enquiry may  discharge  an  accused person if he is of opinion that the evidence referred to  in sub-s.  (4) and the documents referred to in s. 173  do  not disclose  any ground for committing the accused  person  for trial,  and if he is of opinion, on a consideration  of  the oral  evidence and the documents referred to in s. 173  that the accused should be committed for trial, he has to frame a charge and commit the accused for trial. In exercising his functions under sub-s. (6) or sub-s. (7) a Magistrate  indisputably performs a judicial function He  is bound  to take the evidence of such persons, if any, as  may be  produced by the prosecution as witnesses to  the  actual commission   of  the  offence  alleged,  and  even  if   the prosecutor  does  not produce any witnesses  the  Magistrate may,  if  he  is  of opinion that it  is  necessary  in  the interests  of  justice to take evidence of any one  or  more witnesses  for the prosecution, take that evidence.  By  the terms  of the statute, an overriding duty is cast  upon  the Magistrate  whether the prosecutor has or has  not  produced witnesses to the actual commission of the offence to examine witnesses  whose examination is, in his view,  necessary  in the interests of justice and this power to examine witnesses is  not  restricted to the examination of witnesses  to  the actual  commission of the offence alleged.  After  recording the evidence of such witnesses and considering the documents which  are  referred  to in s. 173(4),  the  Magistrate  may examine the accused, if he considers it necessary to do  so, for  the  purpose  of enabling the accused  to  explain  any circumstances  appearing in the evidence against  him.   The Magistrate then gives to the prosecution and the accused an  1073 opportunity of being heard.  He thereafter forms his opinion whether  the evidence and the documents disclose any  ground for committing the accused for trial. The  object underlying the procedure prescribed  by  sub-ss. (4),  (6) & (7) is to determine, after the accused has  been apprised  of the nature and the details of  the  prosecution case  together  with the evidence oral  and  documentary  on which  the case against the accused is sought to be  proved, whether  there  is a Prima facie case  against  the  accused which  should go before the Court of Session for trial.   In the performance of his functions the Legislature has made it obligatory upon the Magistrate to record evidence  tendered, or  appearing  to him necessary, to consider  the  documents produced  and  to  give  the  prosecutor  and  the   accused opportunity   of  being  heard.   The  Magistrate  is   also authorised  to  examine the accused, if necessary,  for  the purpose of enabling him to explain any circumstances in  the evidence against him.  The power is in terms  discretionary-

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that  is  made  clear  by the  use  of  the  expression  "if necessary"-but  the  discretion must be exercised  on  sound judicial  principles  having regard to the  purpose  of  the enquiry which is to judicially ascertain whether there is  a prima   facie case made out against the accused for  commit- ment. In  the  context  of this scheme it would  be  difficult  to believe  that the Legislature by enacting sub-s.  (6) of  s. 207-A sought to restrict the examination Of the accused only to matters which are disclosed on the oral evidence.  It  is true that the Legislature has used the expression "evidence" at three places in cl. (6), but having regard to the context in  which  the expression occurs at  different  places,  the argument  of  counsel for the appellants that  it  uniformly means  oral evidence recorded either of witness produced  by the  prosecutor or witnesses examined on his own  initiative by   the  Magistrate,  and  does  not  include   documentary evidence, cannot be accepted.  In the first clause of sub s. (6) the evidence is, as the statute 1074 expressly  enacts "the evidence referred to in sub-s.  (4)", and  the  expression  "that  such  evidence  and   documents disclose no grounds for committing" indicates, having regard to the context, that the evidence referred to in sub-s.  (4) alone  is  comprehended thereby.  But  the  expression  "the evidence"  in  the  clause "examined  the  accused  for  the purpose  of  enabling  him  to  explain  any   circumstances appearing in the evidence against him" is, in our  judgment, not  restricted to the oral evidence recorded  under  sub-s. (4).   Among  the  documents which  the  Magistrate  has  to consider are the documents which the prosecution proposes to rely  upon  at  the  trial  including  the  statements   and confessions,  if any, recorded under s. 164 and s. 161  (3). The documents form part of the record of the Magistrate, and it  would be open to the prosecutor and the accused to  rely thereon in support of their respective contentions when they exercise  their right of being heard.  Those documents  have to  be  considered together with the oral  evidence  by  the Magistrate in forming his opinion whether the accused should be  committed to the Court of Session or be discharged.   It would  indeed be surprising if the Legislature  intended  by using  the expression "examined the accused for the  purpose of  enabling him to explain any circumstances  appearing  in the  evidence against him" that the opportunity to be  given to  the  accused  for  explaining  circumstances   appearing against  him must be restricted to  circumstances  appearing from  the  oral  evidence, whereas in  making  an  order  of commitment  or  discharge  the  Magistrate  may  take   into consideration the documents referred to in s.     173 (4) as well as the oral evidence recorded in sub-s.(4)   of s. 207- A  and  afford  an opportunity to  the  prosecutor  and  the accused  of  being  heard  on the  entire  record.   Such  a construction   of  the  clause,  by  putting  a   restricted interpretation upon the meaning of the word "evidence" would in  many cases involve great prejudice to the accused.   The circumstances appearing against the accused would in a large majority  of cases be from the statements recorded under  s. 161 (3), under s. 164 and other documentary evidence, but  1075 if the accused is not to be given an opportunity to  explain those   circumstances,  to  a  large  extent  the   judicial character  of  the  proceeding would  be  impaired,  for  in determining whether the record discloses a prima facie  case against  the  accused justifying an order of  commitment  to ’the Court of Session for trial, examination of the  accused

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for the purpose of enabling him to explain any circumstances appearing  against him only from the oral evidence  and  not from  the documents referred to in s. 173(4) would  fail  to give to the Magistrate a complete picture of the case.   The accused may have a complete answer to the documents on which the prosecution seeks to rely.  But if by the words used  in cl.  (6) the Magistrate is prohibited from examining him  in respect  of those documents the provision  might  frequently operate oppressively against the accused. There has been a deliberate change of phraseology  in  using the expression "the evidence" in cl.(6).     In the  opening clause the evidence referred to is evidence taken under sub- s.  (4) and as we have already observed in the  last  clause the  expression " such evidence" presumably is the  evidence referred to in that sub-section.  But in the context of  the examination  of the accused for the purpose of enabling  him to  explain  any circumstances appearing  against  him,  the Legislature has used the expression "in the evidence against him", which is not expressly qualified by reference to  sub- s. (4) nor does any implication arise from the context which would suggest that it has a limited content. It  was  urged  in  the  alternative  by  counsel  for   the appellants  that  even  if  the  expression  "evidence"  may include documents, such documents would only be those  which are duly proved at the enquiry for commitment, because  what may  be used in a trial, civil or criminal, to  support  the judgment  of  a Court is evidence duly proved  according  to law.  But by the Evidence Act which applies to the trial  of all criminal cases, the expression "evidence" is defined in s.   3 as meaning and including all statements which 1076 the  Court  permits  or requires to be  made  before  it  by witnesses, in relation to matters of fact under enquiry  and all  documents  produced for the inspection  of  the  Court. There  is  no restriction in this  definition  to  documents which  are duly proved by evidence.  Normally in a  criminal trial,  the  Court can proceed on documents which  are  duly proved, or by the rules of evidence made admissible  without formal proof, but under the amended Code the Legislature has in  s. 207-A prescribed a special procedure  in  proceedings for  commitment of the accused.  The record consists of  the oral  evidence recorded under sub-s. (4) of s. 173,  and  it would be difficult to regard only those documents which  are duly  proved,  or  which are  admissible  without  proof  as "evidence"  within the meaning of cl. (6) and not the  rest. There is no substance in the contention that the Legislature could not have intended that the accused should be  examined in respect of documents which are not duly proved before the Court.  because to do so might in some cases operate, as  "a trap for the accused".  The object of the examination it may be remembered is to afford an opportunity to the accused  to explain  any  circumstances appearing against him.   He  may avail  himself of the opportunity, but he is not obliged  to do  so, and if he does not avail himself of the  opportunity he is by the statute exposed to no prejudicial consequences. But  it  was urged that if the accused declined  to  explain circumstances in answer to the Court’s question, an  adverse inference  may  be raised, and reliance in that  behalf  was placed  upon illustration h) to s. 114 of the  Evidence  Act which provides that the Court may raise a presumption "that, if  a  man  refuses to answer a question  which  he  is  not compelled  to answer by law, the answer, if given, would  be unfavorable to him".  We are unable to hold that because the accused  in  an  enquiry for  committal  declines  to  avail himself   of  the  opportunity  to   explain   circumstances

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appearing against him from the oral or documentary evidence, a presumption may be raised against him.  Declining to avail himself of such an opportunity and reserving his right 1077 to  make a defence at the trial do not amount to refusal  to answer a question.  The opportunity contemplated by s. 207-A (6)  for the examination of the accused is for  his  benefit and solely for the purpose of enabling him if he desires  to do  so  to explain circumstances against him from  the  oral evidence  and also the documents referred to in  s.  173(4). The  scheme  of cl. (6) of s. 207-A is not the same  as  the scheme  in s. 342 of the Code of Criminal Procedure.   Under the latter section the Court is authorised to put  questions to  the accused for the purpose of enabling him  to  explain any  circumstances  appearing against him and the  Court  is required  for that purpose to question him generally on  the case  after  the  witnesses for the  prosecution  have  been examined  and  before he is called upon to  enter  upon  his defence.  But s. 207-A (6) does not contemplate such general questioning:  it  contemplates  examination  only  for   the purpose  of explaining any circumstances  appearing  against the  accused.  Therefore by merely failing to avail  himself of  the  opportunity to explain circumstances to  which  his attention  is drawn the accused does not refuse to answer  a question which would justify a presumption against him  that the answer if given would be against him. The scheme of s. 251-A which was brought on the statute book simultaneously  with  s.  207-A  by Act  26  of  1955,  also furnishes  an  indication  that in the  examination  of  the accused for enabling him to explain circumstances  appearing in  the  evidence against him, documents referred to  in  s. 173(4)  cannot  be  excluded.  Section  251-A  prescribes  a special procedure for warrant cases, instituted upon  police reports.   In  a  case started otherwise than  on  a  police report, the old procedure of examining witnesses and framing a  charge on which the accused is to be tried  continues  to apply.   But  where  the proceedings commence  on  a  police report,  the Magistrate has under s. 251-A (2)  to  consider the  documents referred to in s. 173(4) and then to  examine the  accused, if necessary, and to give the accused and  the prosecutor 1078 opportunity of being heard.  Under s. 251-A no provision  is made  for  examination of witnesses before making  an  order under sub-s. (2) discharging the accused or under sub-s. (3) framing  a  charge.   Under  sub-s.  (2)  of  s.  251-A  the Magistrate may upon consideration of the documents  referred to in s. 173(4) and making such examination, if any, of  the accused as the Magistrate thinks necessary and after  giving the  prosecutor  and  the accused an  opportunity  of  being heard,  discharge the accused if he considers the charge  to be  groundless. or frame a charge against him  under  sub-s. (3)  if there is ground for presuming that the  accused  has committed  an  offence.  In a warrant case  therefore  there will be no evidence of witnesses and the examination of  the accused  if  found  necessary  by  the  Magistrate  must  of necessity be restricted to the circumstances appearing  from the  documents  under  s.  173  (4).   The  Legislature  has therefore   in  enquiries  in  warrant  cases   contemplated examination   of  the  accused  solely  upon   circumstances appearing  from the documentary evidence referred to  in  s. 173 (4) and it cannot be assumed that the examination of the accused  in  respect of circumstances appearing  from  those documents which are not proved but of which copies have been furnished to the accused, is so inconsistent with principles

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of  criminal jurisprudence that it must be  discountenanced. If  opportunity  may be given to an  accused  person  before framing   a   charge  under  s.  251-A   (2),   to   explain circumstances appearing from the documents referred to in s. 173(4),  it  is  difficult to see any ground  on  which  the Magistrate   holding  an  enquiry  for  commitment  may   be disentitled  to  do  so under s. 207-A  (6).   It  would  be somewhat  anomalous,  if it were true, that in  the  enquiry before framing a charge against the accused in respect of  a charge  for  an  offence which is triable by  the  Court  of Session  as  well as,by a Magistrate,  two  different  rules relating  to the examination of the accused  would  prevail, according  as  the accused is to be tried by  the  Court  of Session, or by the Magistrate.  1079 We  are  therefore of the view that the Magistrate  has  the power,  if  he thinks it necessary, to examine  the  accused for.   the   purpose  of  enabling  him   to   explain   any circumstances appearing in the evidence-such evidence  being oral  evidence,  if any, as may have been recorded  and  the documents referred to in s. 173(4). We are not concerned to decide whether the Magistrate in the present  case was justified in calling upon the  accused  to remain present for their examination after the arguments  of the  prosecution and the accused were concluded.   Normally, such an examination would take place before arguments of the prosecutor and the accused are heard.  But there is  nothing in the Code to prevent the examination, if in the course  of hearing the arguments, the Magistrate entertains the opinion that  such examination may be necessary in the interests  of justice  for the purpose of enabling the accused to  explain any circumstances appearing against him. In that view of the case this appeal fails and is dismissed. AYYANGAR,  J.-We  regret our inability to  agree   with  the judgment just pronounced. Section 207-A(6) of the Criminal Procedure Code reads:               "When the evidence referred to in  sub-section               (4) has been taken and the Magistrate has con-               sidered  all  the  documents  referred  to  in               section  173 and has, if  necessary,  examined               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 and documents disclose  no               grounds for committing the accused person  for               trial,  record the reasons and discharge  him,               unless it appears to the Magistrate that  such               person should be tried               1080               before  himself or some other  Magistrate,  in               which case he shall proceed accordingly." The  import of the expression ’to explain any  circumstances appearing in the evidence against him’ is the only  question that is raised for consideration in this appeal which  comes before  us by virtue of special leave granted by this  Court under Art. 136 of the Constitution. Before dealing with that question and as preliminary thereto it will be convenient to narrate the facts which have  given rise to this appeal. The  appellants before us are two out of 57 accused who  are being  prosecuted  for offences under  ss.  120-B,406,  408, 409and 477-A, read with s. 34 of the Indian Penal Code.  The amount  said  to have been misappropriated is stated  to  be

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over  Rs. 53 lakhs and the conspiracy in pursuance of  which these  various  offences were committed are  stated  by  the prosecution  to have extended over a period of twelve  years from  1948 to 1960.  The charge-sheet was presented  on  the ‘4th of December, 1962, in the court of Shri Halbe, who  was appointed as a Special Magistrate for the trial of the case. It is common ground that he was dealing with the case as one which  was liable to be committed to Sessions for trial,  if the  charges made against the accused were held to be  prima facie  proved  and as the proceedings were  initiated  on  a police  report, the Magistrate is making the  inquiry  under the  provisions of s. 207-A of the Criminal Procedure  Code, or  for shortness, the Code.  On March 28, 1963, the  Public Prosecutor filed before the Special Magistrate a memorandum, the material portion of which read:               "The evidence in this case is mainly  documen-               tary.   As such the prosecution does not  want               to  produce any witnesses as  evidence  before               the committal before this Court.               The  Court  may be pleased to take  into  con-               sideration  all the evidence contained in  the               documents  the  copies  of  which  have   been               supplied                1081               to the accused and also submitted before  this               Court as required by s. 173(4) of the Code.               The  Court  may then be pleased  to  give  the               prosecution  an opportunity of being heard  to               explain the whole case." Subsequent  to this date the documents under s. 173  of  the Code  were  filed.   Immediately  thereafter,  the   parties addressed  arguments  to the court based  on  the  documents before the Court. , The prosecution commenced its  arguments from July 8, 1963, and after this was completed the  accused made their submissions and these arguments concluded on  the 26th  of July, 1963.  On the same day a large number of  the accused  submitted a memorandum to the court in  which  they urged that as the prosecution had led no oral evidence under s.  207-A(4)  of  the Code, but had  merely  relied  on  the documents  filed in proof of a prima facie case against  the accused, the Magistrate should not "examine the accused" and this  they  ’urged  on two grounds: (1)  that  on  a  proper construction  of s.207-A(6) of the Code it was not  open  to the  court  to examine them and (2) that  such  examination, even  assuming  that the court had jurisdiction  to  do  so, would,  in  the  circumstances of  the  case,  work  serious prejudice to them particularly as any statement made by  the accused  during their examination might be used as  evidence against  them.   The Special Public Prosecutor in  his  turn filed a memorandum on July 27, 1963, opposing the prayer  of the  accused and submitting that the court might be  pleased to examine the accused by asking each of them "a few general questions so as to enable them to explain the  circumstances appearing against them" and relying for this purpose on  the construction of s. 207-A(6) adopted by the Bombay High Court in  Ramdas  Kikabhai  v. The State of  Bombay(1).   A  truly Gilbertian  situation thus arose, the accused pleading  that they  did  not want any opportunity to explain  anything  at that  stage and that it would not be in their  interests  to have them examined or questioned then, but that (1)  A.I.R. 1960 om. 124 1082 on the other hand such examination would seriously prejudice them,  while  on  the other, the State  through  the  Public Prosecutor  urging  that  it was in  the  interests  of  the

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accused  that  they should be immediately  examined  by  the Magistrate  so as to give them the opportunity to explain  a step which they were resisting. The learned Magistrate acceded to the prayer of the  counsel for  the  prosecution  and directed the  accused  to  appear before  him  on  August 9,  1963.   The  present  appellants thereupon filed a revision before the learned Sessions Judge and  obtained  orders staying the order of  the  Magistrate. That  revision was, however, dismissed on August  19,  1963, the  learned Sessions Judge holding that though  there  were decisions  of  other  High  Courts  in  which  a   different construction of s. 207-A(6), which the accused submitted was the  proper  one,  had  been upheld, he  was  bound  by  the decision  of the Bombay High Court relied on by  the  State, and he, therefore, held that the Magistrate had jurisdiction to  examine the accused at that stage and that he would  not interfere  with  that  order.  A  further  revision  by  the accused  to  the  High Court was  dismissed  in  limine  and thereafter  the  accused applied for  and  obtained  special leave from this Court to prefer this appeal and that is  how the matter is before us. The  question raised is whether the Magistrate is  empowered to  examine the accused when no evidence has  been  recorded under  s. 207-A(4) to be presently read, and this  primarily turns on a proper construction of sub-s. (6) of s. 207-A  of the Code which we have extracted earlier.  For this  purpose it is necessary to set out some of the other sub-sections of s.  207-A, because it is in the context of those  provisions that  the  words  of this particular  sub-section  could  be understood:               "  s.  207-A(1).   When,  in  any   proceeding               instituted on a police report, the Magistrate-               receives the report forwarded under s. 173, he               shall  for the purpose of holding  an  inquiry               under this section fix a date which shall be a               date not later                1083               than  fourteen  days  from  the  date  of  the               report, unless the Magistrate, for reasons  to               be recorded, fixes any later date.               (2)   If  at  any time before such  date,  the               officer conducting the prosecution applies  to               the  Magistrate to issue a process  to  compel               the   attendance   of  any  witness   or   the               production  of  any  document  or  thing               the Magistrate shall issue such process unless               for  reasons  to  be  recorded,  he  deems  it               unnecessary to do so.               (3)   When,  upon such evidence  being  taken,               such  documents being considered, such  exami-               nation (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." Section 207-A was newly introduced into the Code by s. 29 of the Criminal Procedure Code Amendment Act, (Act 26 of 1955). By  this enactment with a view to cut short the  delay  that was occurring in committal proceedings different  procedures were prescribed for inquiry before a Magistrate of cases (a) where  the  case  is triable exclusively  by  the  Court  of Sessions or the High Court and (b) where in his opinion  the case  is  to be tried by such court  depending  whether  the proceedings commenced by the institution of a police  report

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or on a private complaint. if it was on a police report, the procedure  was  prescribed by s. 207-A, whereas  if  it  was instituted  otherwise than by a police report,  section  208 and  the  sections following were attracted.   It  might  be pointed out that in proceedings instituted otherwise than by a police report which were governed by the provisions of the Code  as they existed before, an accused could be  committed for  trial  under  s.  210, and evidence  in  the  sense  of judicial  evidence had to be called before  the  Magistrate. After  such evidence was taken i.e., oral evidence  on  oath together  with  such evidence as was afforded  by  documents which had been proved 1084 in  accordance  with the provisions of the  Indian  Evidence Act,  s. 209(1) provided for the examination of the  accused "for   the   purpose  of  enabling  him   to   explain   any circumstances appearing in the evidence" against him.  That, however, was not the scheme of s. 207-A.  Under the terms of sub-s.  (4) the Magistrate "after satisfying  himself  under the  provisions  of  the  sub-section  that  the   documents referred  to  in s. 173 had been furnished to  the  accused" proceeds to take the evidence of such persons if any as  may be  produced by the prosecution as witnesses to  the  actual offences alleged and of other witnesses whom the  Magistrate considers  it necessary to examine.  Turning now to  s.  173 the  documents  that  are referred to therein  are  first  a report  by  the  Officer-in-charge  of  the  Police  Station setting  forth the names of the parties, the nature  of  the information  and the names of the persons who appear  to  be acquainted  with the circumstances of the case  and  stating whether  the accused has been taken in custody or have  been released and if so in what manner.  Besides the report,  the other documents that are referred to are those mentioned  in sub-s.  (4):  (1) the First information Report  or  relevant extracts  thereof on which the prosecution proposes to  rely including  the statements and confessions, if any,  recorded under  s. 164 and (2) the statements recorded  under  sub-s. (3)  of  s.  161 of all the  persons  whom  the  prosecution proposes  to  examine  as its  witnesses.   There  are  some reservations   to  these  provisions  under  which   certain documents  might be withheld but we shall not refer to  them as the same are not relevant to the context. We shall now take up for consideration the terms of s.  207- A(6)  and  the controversy now centres round the  words  ’to examine   the   accused................   to   explain   any circumstances appearing in the evidence against him’.  It is common  ground  and  is not disputed by  Mr.  Setalvad,  the learned   counsel   for  the  respondent-State,   that   the jurisdiction  of the court to examine the accused  conferred by this sub-section  1085 is  solely  for the purpose of enabling him to  explain  the circumstances   appearing  in  the  evidence  against   him. Consequently  it  will follow that if there is  no  evidence there  cannot  be circumstances appearing in  that  evidence against  him  which he can or need be called on  to  explain with  the result that the court would not have  jurisdiction to examine the accused at that stage.  The point, therefore, resolves  itself into the meaning of the word ’evidence’  in the expression ’circumstances appearing in the evidence’. During the course of the arguments, the word ’evidence’  has been stated to convey three distinct ideas:  (1) Evidence of witnesses recorded under s.   207-A(4)  of  the  Code,   (2) Besides the above, such portion of the documentary  evidence referred to in s. 173(4) of the Code which the Magistrate is

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directed to consider before ordering commitment, which being public  documents  need no proof under the  Indian  Evidence Act,  and  which would be judicial evidence before  a  court under  the  latter  enactment,,  (3)  The  entirety  of  the documents under s. 173(4) on which material under s.  207-A, the Magistrate could base his committal order, under sub-ss. (6) & (7), whether these documents be admissible in evidence or not and whether or not they have been proved as  required by the Evidence Act.  The submission of the counsel for  the appellants  is that the word ’evidence’ is confined  to  the oral  evidence  of  persons who have been  produced  by  the prosecution  under sub-s. (4) as witnesses or  of  witnesses whom  the Magistrate examines under the powers conferred  in that behalf by the concluding words of that sub-section.  We consider   that   there  is  considerable  force   in   this submission.  The word ’evidence’ occurs three times in  this subsection.   In the opening words of the sub-section  where it  occurs first referring, as they do, specifically to  the evidence  recorded  under ‘sub-s. (4)the word  is  obviously used only in the sense of oral evidence recorded under  sub- s.   (4)  together  with  the  cross-examination   and   re- examination  permitted by sub-s. (5).  This is  followed  by the words ’the 1086 Magistrate  has considered all the documents referred to  in s. 173’.  Documents therefore are treated here as a distinct category  of material distinct from "evidence" and the  sub- section  proceeds  on the existence of a  dichotomy  between these  two species of material which the Magistrate  has  to take  into  account  before  ordering  committal.   If  this dichotomy  and  this  distinction  between  "evidence"   and documents underlie the texture of the entire sub-section, it could not be disputed that the word ’evidence’ on the second occasion  when it occurs in sub-s. (6) and which  calls  for construction  in the appeal has to be read as  meaning  only the evidence of witnesses examined under subs.(4). We  shall revert  to this however after referring to the rest of  this sub-section  to  ascertain  what light this  throws  on  the continued  maintenance  of this dichotomy.  The  last  place where  the word ’evidence’ occurs in the sub-section is  the passage reading ’such Magistrate shall, if he is of  opinion that  such  evidence and documents disclose no  grounds  for committing the accused person for trial’.  It is clear  here the  word  ’documents’  denotes the  documents  referred  to earlier,  namely  those  in  s.  173  and  these  are  again distinguished  from ’evidence’.  Here also there  cannot  be any  doubt  that the word ’evidence’ is a reference  to  the evidence  recorded  under sub-s. (4)-and which  has  already been referred to in the opening words of the sub-section and this  also  we might say was not disputed by  Mr.  Setalvad. Pausing  here  and  taking up  sub-s.  (7)  the  distinction between  "evidence" in the sense of oral  evidence  recorded under  sub-s.  (4) and the documents under s. 173  is  again seen to be maintained with rigor for the phraseology adopted in that sub-section is "upon such evidence being taken,  and such documents being considered".  With the phraseology  em- ployed in sub-section(4), two out of three places in sub-ss. (6)  &  (7)  it would require  very  strong  and  compelling reasons to hold that when words "the evidence" were used  in the  passage  now  in  question  they  were  employed  in  a different   sense  divorced  from  the   dichotomy   between ’evidence’ and ’documents’  1087 which  runs throughout these provisions.  In fact, even  the judgment  of the Bombay High Court on which  the  Magistrate

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and  the  learned  Sessions Judge relied,  proceeds  on  the acceptance of this construction of sub-s. (6).  The  learned Chief Justice after referring to the several sub-sections of s. 207-A observed:               "The learned Assistant Government Pleader  has               urged  that the word ’evidence’ which  follows               with  the words ’any circumstances’  appearing               in  sub-s. (6) is used in a wider sense so  as               also to    include  the documents referred  to               in s. 173.      This   argument   cannot    be               accepted,in view of  the  latter part  of  the               sub-section,which  requires the Magistrate  to               form   an   opinion  on  such   evidence   and               documents’.   Here  again  the  documents  are               referred to separately from evidence.  It  is,               therefore,  clear  that  evidence’  does   not               include  the  documents, which  are  mentioned               separately   in   both  sub-secs.   and   (7).               Consequently,  evidence’ in  these  provisions               means evidence, if any, recorded under  sub-s.               (4).  The section, therefore, contemplates  an               examination of the accused for the purpose  of               enabling  him  to  explain  any  circumstances               appearing in the evidence against him, that is               in  the evidence, if any, recorded under  sub-               section (4)." But  the learned Chief Justice then proceeded to  point  out that  there was an apparent lacuna in the subsection  which, however, he held was remedied by the later part of the  sub- section  directing  the Magistrate ’to give the  accused  an opportunity  of being heard,’ and that under this  provision the Magistrate was vested with power to examine the accursed for the purpose of explaining why he should not be committed for trial before the Sessions. With  great respect to the learned Judges we are  unable  to accept as correct the reasoning on which this conclusion  is based.  In the first place, it is not possible to accept the view  that there is a lacuna in the sub-section arising  out of the construction of 1088 the word ’evidence’ which the learned Judges accepted.   The scheme  of s. 207-A(6) & (7) is that there are two  sets  of materials  on the basis of which the Magistrate is  directed to make up his mind whether a prima facie case has been made out against an accused person justifying his being committed to  take his trial, oral evidence recorded under sub-s.  (4) and  the  documents referred to in s. 173 and  filed  before him.  If on a proper construction of sub-s. (6), it is  held that  in  the  event of one type of  material  being  placed before the Court viz.    oral evidence, the accused shall be questioned  in order to explain the circumstances  appearing against  him  on that material-the  provision  discloses  no lacuna.   On  such  a construction it would  mean  that  the accused is not to be questioned if no such evidence has been recorded  in the case and is present before the  Magistrate. Nor  are the learned Judges right in saying that  the  words ’given  the accused an opportunity to be heard’  involve  an examination  of  the  accused.  These are  words  of  common occurrence in the Code and elsewhere and mean an opportunity to submit reasons for the acceptance of the Court.  They  do not  refer to questions and answers which must  be  recorded verbatim  and  made part of the record, and which  could  be used  as evidence under s. 287 of the Code.  In the  context they  are capable of meaning only hearing the  arguments  or submissions by the accused on’ the case or in regard to  the

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documents  where  there has been no evidence  of  the  type, mentioned  in sub-s. (4).  In this connection it has  to  be pointed out that when the accused is examined, the statement recorded  by the Magistrate may be used as evidence  against the accused under s. 287 of the Criminal Procedure Code  and this  sub-section’  merely speaks of an  opportunity  to  be heard.   It  is needless to point out that  along  with  the accused the prosecution is also to be given "an  opportunity to  be  heard"  and in their case it  is  obvious  that  the relevant  word cannot mean an examination by  questions  put and  answers  recorded.  This is made more  clear  and  this conclusion is reinforced by the terms of sub-s. (7) which we have 1089 extracted.  If nothing more could be urged in support of the construction adopted by the courts below than the  reasoning to be found in the judgment of the Bombay High Court, it  is manifest   that  the  order  now  under  appeal  cannot   be sustained. Mr.  Setalvad, however, did not rely on the judgment of  the Bombay High Court, nor did he seek to support the  reasoning on which it is based and, in fact, he conceded that the main reason given by the learned Judges based upon the words ’the accused being given an opportunity to be heard’ could not be sustained.   We  invited him to point out  any  other  place where  such  words had the meaning attributed  by  the  High Court of Bombay but he could not. The  points,  however, urged by him were three.   First  the employment  of the expression ’the evidence’  as  contrasted with ’the evidence referred to in subs. (4) or such evidence which were the expression used in the other two places where the  word ’evidence’ was used in sub-s. (6).  Based on  this the argument was that the words ’the evidence’ were used  in a  comprehensive  sense not confined to  the  oral  evidence recorded  under sub-s. (4) and extended to the  entirety  of the material on which the Magistrate was to determine  the prima facie case against the accused.We feel unable       to accept this argument.  We have already  analysed  the  terms of the subsection.  In the light of the phraseology employed in  other  subsections, particularly sub-ss. (4) &  (7),  we have  found  that the sub-sections draw a  clear  and  sharp distinction between "evidence" and "the documents"  referred to  in s. 173.  Such a distinction is made in every part  of sub-s. (6), as well as in sub-s. (7).  In the  circumstances we  attach no importance to the absence of the  word  ’such’ and  the  use  instead of the word  ’the’  in  the  relevant clause.  The definite article ’the’ obviously in the context refers to the ’evidence’ already referred to in the  opening words of the sub-section, namely that recorded under  sub-s. (4).  It is the same evidence which is again referred to  in the third place 1090 where that word is used in the concluding part of that  sub- section.  The rule of interpretation which is applicable was stated  by  Lord Radcliffe-"the meaning  which  these  words ought  to be understood to bear is not to be ascertained  by any  process  akin to speculation.  The primary  duty  of  a Court of law is to find the natural meaning of the words  in the  context in which they occur, the context including  any other phrases in the Act which may throw light on the  sense in  which the makers of the Act used the words  in  dispute. "(1) Mr. Setalvad’s next submission was based on a comparison  of sub-s. (6) of S. 207-A with sub-s. (2) of S. 251-A.  In this connection  stress was laid on the fact that both ss.  207-A

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and  251 -A were introduced by the ’same enactment-Act  XXVI of 1955, and both dealt with the procedure to be adopted  in cases instituted on a police report.  Sub-s. (2) of S. 251-A empowers   the  Magistrate  to  examine  the   accused,   if necessary, in respect of matters appearing in the  documents under S. 173(4).  Section 251-A (2) reads:               "If,  upon consideration of all the  documents               referred to in S. 173 and making such examina-               tion, if any, of the accused as the Magistrate               thinks necessary and after giving the prosecu-               tion  and the accused an opportunity of  being               heard,  the  Magistrate considers  the  charge               against the accused to be groundless, he shall               discharge him."               This  is  preceded by sub-s. (1) which  is  an               analogue of sub-S. (3) of S. 207-A and enacts:               "When  in  any  case instituted  on  a  police               report,  the  accused appears  or  is  brought               before a Magistrate at the commencement of the               trial,  such Magistrate shall 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               (1)   Macmanaway  In re [1951] A.C. 161 at  p.               169.                1091               documents or any of them, he shall cause  them               to be so furnished." The argument based upon sub-s. (2) was two fold: (1)There  is  no  anomaly or  injustice  in  empowering  the Magistrate  to examine an accused person in respect  of  the matters  appearing  in  the  documents  under  s.  173;  for Parliament   has  in  terms  made  provision  for  such   an examination. (2)In view of the terms of s. 251-A(2) which was enacted  at the  same time as s. 207-A, the word ’ evidence’  in  sub-s. (6)  is  capable  of being understood  as  meaning  ’on  the examination of the accused with reference to the material on which the Magistrate proceeds to act’, for in both the cases the  object  of the examination is in the interests  of  the accused  and in order to afford the accused  an  opportunity not  to be committed or to have a charge framed against  him as the case may be.  We do not think that such a  comparison is a sound rule of construction.  Besides we feel unable  to agree  that  a comparison of the provisions of  s.  251-A(2) affords  the respondent any assistance.  On the other  hand, the contrast in the language employed in the two  provisions appears to us to favour the construction that the expression ’evidence’  in  the  relevant portion of s.  207-A(6)  is  a reference  to the evidence recorded under sub-s.  (4)  which has  been tested by cross-examination, if any.  It is to  be noticed that when the framers of Act 26 of 1955 referred  to the  documents  unders. 173, they are both in s.  207-A,  as well  as  in s.251-A referred to as ’documents’ and  not  as evidence.  Added  to this is the circumstance that  when  s. 251-A(2)  empowers the court to examine the accused  it  not merely  does not use but scrupulously avoids the use of  the expression  ’evidence’.  It does not make  such  examination compulsory  mark the words ’if any’-and does not even  refer to  the  documents  at all.  In this connection  it  may  be pointed  out  that when the Bill 20-B of  1954  which  later became Act 26 of 1955 emerged from the Select Committee, the relevant words in s. 207-A(6) 1092

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were identical with those which are now found in s. 251-A(2) i.e.,  without  the use of the word ’evidence’  and  without even  an indication of the purpose for which the  court  was empowered to examine the accused.  It was during passing  of the Bill in Parliament that sub-s. (6) was amended so as  to read  as  it does at present.  This, in our  opinion,  is  a circumstance  which shows that the word ’evidence’  was  not used by error or inadvertently but that a deliberate  change was intended from the provision contained in s. 25 1 -A (2). That is an additional reason why we consider that the  terms of s. 251-A(2) far from assisting the respondent in  reality militate against the acceptance of the submission. We  might,  in this connection make a reference  to  another provision  in  the Code where the language now  calling  for construction  has also been employed.  Section 342(1)  opens with  the words ’For the purpose of enabling the accused  to explain any circumstances appearing in the evidence  against him’.   It  is  obvious that the Magistrate  would  have  no jurisdiction under this provision to examine an accused  (a) either  when no oral evidence for the prosecution  has  been recorded  or (b) in respect of matters about which there  is no evidence adduced in the sense in which that expression is used  in the Indian Evidence Act for enabling the  court  to hold  any  fact in issue, or a relevant fact to  be  proved. Speaking of this section, Raghubar Dayal J. as he then  was, observed in Bachchan Lal v. The State(1).               "The object of the examination of the  accused               under  s. 342, Criminal Procedure Code, is  to               afford him an opportunity to explain away  the               circumstances which go against him and is  not               to  elicit  matter on the record  about  which               there  is  no evidence.  The Court is  not  an               investigating agency whose duty is to find out               facts  which could be put before the Court  at               the trial"; and in another decision reported in Bahawala v. The Crown(2) the Court held that an illegality was committed (1) A.I.R 1957 Allahabad 184. (2) I.L.R. 6 Lah. 183.  1093 when  the accused was examined before the evidence  for  the prosecution  was recorded.  The reasoning was that  at  that stage  there  was no evidence against him  and  consequently there were no circumstances in that evidence which he  could be  called upon to explain.  We consider that the  principle laid  down by these decisions correctly explains the law  as to  the circumstances in which an accused could be  examined by the Magistrate under a provision worded like s. 207-A(6). The  last  submission  of  Mr. Setalvad  was  based  on  the definition  of  the  expression ’evidence’ in s.  3  of  the Indian   Evidence  Act  where  evidence  is  defined   thus: ’evidence’ means and includes.............. (1)   oral evidence and (2) all documents produced for  the  inspection of the court; such documents are   called        documentary evidence."   Based   on  this  definition,  and   taken   in conjunction with the fact that under s. 207-A the  documents referred  to  in s. 207-A(3) are treated  as  material  upon which the court might arrive at the conclusion that a  prima facie  case has been made against the accused, it  was  sub- mitted  that there was no impropriety in referring to  these documents  as  ’evidence’.   We are not  impressed  by  this argument.   Perhaps it might not be a great  objection  that the expressions are defined in s. 3 only for the purpose  of Indian  Evidence Act and this, we would add, is  merely  the dictionary meaning of the word.  The more serious  objection

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is  the use of this definition for the purpose of  importing probative  value to the documentary evidence which might  be inadmissible  or irrelevant or prohibited by law and in  any event not proved so as to permit a court to look into,  them for  basing any judicial decision apart from  any  statutory provision to the contrary.  If the expression ’evidence’  is used  throughout  the  Criminal Procedure  Code  as  meaning judicial  evidence  i.e., oral evidence  tested-  by  cross- examination, if any and documentary evidence which has  been proved   and  which  has  been  held  to  be  relevant   and admissible, it would, to say the least, be a strange use 1094 of  that word in the provision now under consideration  that it  means  documents  produced for "the  inspection  of  the Court".   If  it is used merely "for the inspection  of  the court", it is obvious that the court could not on its  terms base any finding on the contents of such a document, and  in fact  that would have been the position but for the  special provision  contained  in s. 207-A and s.  251-A.   We  have, therefore, no hesitation in rejecting this submission also. This  argument was presented in a slightly modified form  by suggesting that even if the Magistrate could not examine the accused with reference to those parts of the documents which could  be  held  not  to be ’proved’,  still  if  among  the documents  referred  to  in s’ 173  there  were  some  which required  no  proof as being either public documents  or  in regard to which proof was dispensed with by any special law, the  Magistrate could examine the accused with reference  to those matters which appeared against him in such  documents. The  precise  object of this submission was to make  it  out that besides oral evidence under sub-s. (4), there could  be other species of evidence which would be evidence  "strictly so called, and that it could not have been the intention  of the legislature to exclude such "evidence" from the  content of that word in sub-s. (6).  This argument must fail in  the face  of the scheme of the section.  The whole scheme of  s. 207-A  proceeds  on  drawing  a  clear  and  sharp  line  of distinction between the two terms ’evidence’ and ’documents’ the  latter meaning the documents referred to in s. 173  and that  dichotomy is maintained throughout, admittedly  twice, in sub-s. (6) and in sub-s. (7).  When therefore ’documents’ are  referred to in sub-ss. (6) & (7), it is a reference  to them  en masse i.e., the entirety of the documents  referred to  in s. 173 and by no possible construction of  s.  207(6) can a distinction be drawn between the documents which prove themselves  and  those which require to be  proved  by  oral evidence. Lastly,  it  was  submitted that the provision  was  in  the interests of the accused and that consequently  1095 construction so as to subserve the underlying purpose  viz., that  the  accused should be in a position  to  explain  the circumstances    appearing   against   him,   whether    the circumstances  appear  in  the  oral  evidence  or  in   the documents,  since the Magistrate was empowered to take  into consideration   both   these  as  affording   material   for committing the accused.  If the text of the statute is clear there might be no escape from the duty of the court to  give effect  to it.  But the word ’evidence’ in the  context  and even  otherwise is incapable of the construction  for  which the respondent contends.  If so, this argument has no  basis to  support it.  If, however, there were an  ambiguity,  and the  word  was reasonably capable both of a narrower  and  a wider construction, the court would, no doubt, be  justified in  adopting  that  construction  which  would  further  the

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purpose  of the provision and promote the cause of  justice. In  order  to  attract  the  application  of  this  rule  of construction, the court would have to be satisfied that  the words if so construed should always operate in favour of the accused.   What we have said earlier about the effect of  an examination  of the accused without there  being  ’evidence’ against him with reference to s. 342(1) of the Code would be apposite in this connection.  It is in this context that  we have the situation in the present case where the accused  do not  desire to be examined and are resisting  the  questions being  put to them on the ground that such  questions  would lead them to give answers before they are fully aware of the details  of the prosecution case and the manner in which  it is proposed to use the documents under s. 173 or the precise construction  which  they  place  on  the  contents  of  the documents on which they propose to rely. The  prosecution insists that it is in the interests of  the accused  that they should be examined, and the  accused  are asserting   that  their  ’examination’  at  this  stage   is calculated to trap them into making statement which might be used to destroy their defence 1096 at  the trial.  Undoubtedly we are concerned in this  appeal not with the facts of this prosecution, for that would be  a matter  for the Magistrate to consider as to whether or  not he  would ’examine’ the accused and on what points he  would ’examine’   them,  keeping  in  mind  the  purpose  of   the examination  specified  in  the sub-section,  but  with  the larger question as to the jurisdiction of the Magistrate  to ’examine’  the accused with reference to what  is  disclosed against them by the documents under s. 173 of the Code.  The documents  mentioned in s. 173(4) might include  some  which can never be evidence against the accused at the trial,  and yet if the respondent is right, the accused might be  called on  to  explain  the  circumstances  against  them  in  such documents,  and  here it must be noted, the  explanation  or statement  of the accused even in answer to  such  questions would be evidence against him under s. 287 of the Code.   It would,   in   the  circumstances,  be  manifest   that   the construction  of the sub-section which the State  urges  for our acceptance is, to say the least, capable of  prejudicing the  accused, and consequently, even in the event  of  there being an ambiguity in the meaning of the word ’evidence’, is not one which the Court could accept.  Nor are we  satisfied that  without such a power in the Magistrate to examine  the accused,  the  accused would lose the chance of  avoiding  a committal  by  offering  a reasonable  explanation  for  the circumstances  appearing in the documents.  After  all,  the Magistrate  is  directed to look into the documents  in  the light  of  the submissions made by the  accused  as  regards their contents and it would not be unreasonable to hold that the intention of the legislature was that the accused should be  examined with reference to what appears against  him  in evidence  legally admissible before the court, while  he  is not  to  be  required to commit himself by  his  answers  in respect of matters which would be proved against him only at the  trial and as regards which he would be  examined  later under s. 342(1) of the Code, and be examined about documents which  may never be moved later.  Interpreted otherwise  the section  1097 would  give  a good chance for a fishing expedition  and  of modulating  the  prosecution case to destroy  the  accused’s explanation at the appropriate stage. It  was  however  suggested  that if  an  accused  found  it

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inconvenient  to  answer any of the questions  put  to  him, there being no legal obligation on the accused to do so,  he might  as well decline to answer them since he could not  be held  liable  for  refusing so to do.   But  this  argument, however,  ignores the fact that an inference adverse to  the accused  might be drawn from his refusal to  answer.   Among the illustrations given in s. 114 of the Indian Evidence Act is one which reads: "The Court may presume- (h)"that,  if a man refused to answer questions which be  is not compelled to answer by law, the answer, if given,  would be unfavourable to him;" The  court  would, therefore, be justified in  drawing  this inference  from  his refusal to answer.  Whether  or  not  a Court would do so, it is certain that if the accused refuses to  answer when examined by the Magistrate at the  committal stage,  any explanation which he might offer at later  stage could properly be characterised as an after-thought.  In the circumstances  it  would not be correct to assume  that  the exercise  of  the power at this stage by the  Magistrate  to question  the accused might not result in serious  prejudice to  the accused.  No doubt by the use of the expression  ’if any’ in the sub-clause the Magistrate is given a  discretion to examine or not to examine the accused and the legislature may well have presumed that the discretion would be properly exercised,  or could be the subject of complaint at a  later stage if this were not done properly.  Undoubtedly where the evidence  is recorded under sub-s (4)  these  considerations apply  and  establish  the  propriety  and  justice  of  the proceeding.  But the question for consideration is that when the  power is sought to be invoked where the  Magistrate  by virtue of the specific provisions of the statute is  enabled to find a prima facie case 1098 by reference to unproved, untested and possibly inadmissible documents on which the prosecution proposes to rely, whether to  such a case those considerations necessarily apply.   If without evidence, properly so called, a Magistrate  examines an   accused,  he  would  be  converting  himself  into   an investigating   agency   and  there   is   therefore   every possibility  of the accused being prejudiced and that  might be the very reason why the sub-section has been framed in  a manner  to avoid this result.  The position is,  of  course, different  under  s. 251-A(2) where the  examination  is  by virtue of the statute and so it stands in a class apart, and we  are  not concerned to consider  whether  an  examination under that provision might prejudice the accused. We, therefore, hold that where there is no evidence recorded under  sub-s.  (4)  of  s.  207-A,  the  Magistrate  has  no jurisdiction  to  examine an accused under s.  207-A(6)  and consequently  the  Magistrate  in the present  case  had  no jurisdiction to direct the accused to appear before him  for examination. We  would  accordingly allow the appeal and  set  aside  the order  of  the Magistrate directing the  accused  to  appear before him for being examined,                            ORDER In  view of the Judgment of the majority, the  appeal  fails and is dismissed.