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PETITIONER: SANJAY GANDHI

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT14/02/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SINGH, JASWANT

CITATION:  1978 AIR  514            1978 SCR  (2) 861  1978 SCC  (2)  39  CITATOR INFO :  RF         1978 SC1568  (11)  RF         1979 SC 478  (93)

ACT: Criminal Procedure Code (Act 11 of 1974), 1973 Ss. 193, 208, 209,  226 and 227--Duties of the Committal Court  under  the new  code when offence is--triable exclusively by the  Court of Sessions, clarified.

HEADNOTE: A time schedule for the committal proceedings in RC  2/1977- CIA-1 on the file of the Chief Metropolitan Magistrate Delhi was-fixed  by  this Court on 2-2-1978.  On  the  refusal  by Committal  Court  to grant him further time to  inspect  the records  u/s  208  of the Crl.P.C., the  petitioner,  a  co- accused,  moved  an  application for  modification  of  this Court’s  order dated 2-2-78 on the ground that he was not  a party before this Court in the earlier proceedings. Rejecting the petition, the Court HELD  : 1. Where the offence is triable exclusively  by  the Court of Session, the, Committing Magistrate has no power to discharge  the  accused.  Nor  has he  power  to  take  oral evidence  save  where  a specific   provision  like  S.  306 enjoins.   Hence  cross  examination  by  the  accused   out provisionfor  the Magistrate save in the case of approvers. No Examination-in-Chief,no cross examination. [862 F] 2.  It  is not open to the Committal Court to  launch  on  a processof  satisfying itself that a prima facie case  has been made lout on the merits.The jurisdiction  once  vested in  the Committing Magistrate under the earlier Code  having been eliminated now under the present code, to hold that  he can  go into the merits even for a prima facie  satisfaction is to frustrate Parliament’s purpose in re-moulding S. 207-A (old   code)  into  its  present  non-discretionary   shape. Expedition   intended  by  this  change   will   be-defeated successfully,  if interpretatively it is held that  a  dress rehearsal of a trial before the Magistrate is in order.  The narrow   inspection   hole  through  which   the   Committee Magistrate  has  to look at the case limits  him  merely  to ascertain  whether  the case, as disclosed  by  the  police- report, appears to him to show an offence triable solely  by the Court of Session.  If, by error, a wrong section of  the

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Penal Code is quoted be may look into that aspect. [862 G-H, 863 A-B] If made-up facts unsupported by any material are reported by the  police and a Sessions offence is made to appear, it  is perfectly  open  to the Sessions Court u/s 227  Crl.P.C.  to discharge  the  accused.   That  provision  takes  care   of grievance that the prosecution may stick a label  mentioning a  Sessions  offence and the accused will then be  denied  a valuable  opportunity to prove his ex-facto innocence.  [863 B-C]

JUDGMENT: ORIGINAL  JURISDICTION : Civil Miscellaneous  Petition  Nos. 31853188 of 1978. A. N.Mulla and D. Goburdhan for the Petitioner. R.  Jethamlani, S. B. Jaishinghant’ and R. N.  Sachthey  for the Union of India. Parveen Kumar for Respondent No. 2. 862 The Order of the Court was delivered by KRISHNA  IYER, J. No party to a criminal trial has a  vested right  in  slow  motion justice since  the  soul  of  social justice  in  this area of law is prompt  trial  followed  by verdict of innocence or sentence.  Since a fair trial is not a  limping hearing, we view with grave concern any  judicial insouciance   which  lengthens  litigation  to   limits   of exasperation.   This key thought prompted us on  an  earlier occasion  to fix a reasonable, yet not hasty, time  schedule for  the  committal proceedings in R.C.2 977-CIA-f  ’on  the file  of the Chief Metropolitan Magistrate, Delhi, and  this was done viably and with consent of the parties then  before us (one of whom is a principal accused represented by Senior Counsel).  We are satisfied that the Magistrate has acted in the spirit of this Court’s order as indeed he was bound  to, in  refusing  time.   Now, another accused, who  was  not  a party. to the earlier proceeding in this Court, has come  up with a petition praying for modification of the order fixing the time-table for, and injecting a sense of tempo into, the hearing  process and committal, on the score that  it  hurts him  by  denying sufficient scope to examine  the  allegedly voluminous  records  produced  by the  police  running  into around  20,000 pages.  He further urges, through Shri A.  R. Mulla, his learned counsel, that he wishes to  cross-examine the witnesses for the prosecution and to argue that no prima facie  case has been made out for  commitment.   Admittedly, one  of  the offences in the charge sheet is s.  201  I.P.C. which  is exclusively triable by a Sessions Court.   Counsel argued  that under s. 306 Cr. P.C. approvers (there are  two in  this case) shall be examined as witness in the court  of the  Magistrate  taking cognizance of the  offence,  and  to cross-examine  them  the accused needs to persue,  scan  and scruitnise  these  20,000  pages of files  produced  by  the Police  which  cannot  be  done  without  a  few  months  of inspection before examination of the witnesses. We have heard counsel on both sides and proceed to elucidate certain  clear propositions under the new Code bearing  upon the  committal  of  cases  where  the  offence  is   triable exclusively  by  the  Court  of  Session.   The   Committing Magistrate  in  such  cases has no power  to  discharge  the accused.  Nor has he power to take oral evidence save  where a  specific  provision like s. 306 enjoins.   From  this  it follows,  that the argument that the accused has  to  cross- examine  is  out of bounds for the Magistrate, save  in  the

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case  of  approvers.   No  examination-in-chief,  no  cross- examination. Secondly, it is not open to the committal court to launch on a process of satisfy itself that a prima facie case has been made out on the merits.  The jurisdiction once vested in him under  the  earlier Code has been eliminated now  under  the present  Code.  Therefore, to hold that he can go  into  the merits  even for a prima facie satisfaction is to  frustrate the Parliament’s purpose in re-moulding s. 207-A (old  Code) into  its present non-discretionary shape.   Expedition  was intended   by  this  change  and  this  will   be   defeated successfully  if  interpretatively  we  hold  that  a  dress rehearsal of a trial before the Magistrate is in order.   In our  view,  the  narrow inspection hole  through  which  the committing  Magistrate  has to look at the case  limits  him merely to 863 ascertain  whether  the  case, as disclosed  by  the  police report, appears to the Magistrate to show an offence triable solely  by the Court of Session.  Assuming the facts  to  be correct  as stated in the police report, if the  offence  is plainly one under s. 201 I.P.C. the Magistrate has simply to commit  for  trial  ’before the Court of  Sessions.  if,  by error,  a wrong section of the Penal Code is quoted, he  may look   into  that  aspect.   Shri  Mulla  submits   if   the Magistrate’s jurisdiction were to be severely truncated like this the prosecution may stick a label mentioning a sessions offence  (if we may use that expresson for  brevity’s  sake) and  the  accused will be denied a valuable  opportunity  to prove  his  ex facie innocence.  There is no merit  in  this contention.   If made up facts unsupported by  any  material are reported by the police and a Sessions offence is made to appear, it is, perfectly open to the Sessions Court under s. 227 Cr.P.C. to discharge the accused.  This provision  takes care of the alleged grievance of the accused. Indeed, we are not at all satisfied that the Magistrate  has denied  an  opportunity for the petitioner to  post  himself adequately  with  the police records adduced in  the  case.- Sufficient    adjournments,   were    granted;    indefinite postponements were accorded,-the presumed reason being  time for inspection and more inspection.  After all, if the  oral testimony  is to be confined to the two approvers,  not  all the  records put in by the police become necessary  for  the accused to cross-examine them.  The exaggeration implied  in the  statement that 20,000 pages of voluminous  record  have been filed by the police was brought out by the counsel  for the  State,  Shri  Jethmalani.   Supposing  an  entry  in  a register is relied on by the police; the other pages in  the voluminous register being of no concern or pertinence to the case, even remotely, there is no point in counting the total number of pages of the register since the case is  concerned only  with one entry.  We are far from, satisfied about  the genuineness  of  the petitioner’s grievance,  since  we  are inclined  to  think  that counting the number  of  pages  of irrelevant  papers  necessarily tied up with  relevant  ones (being in the same book or file) is a farcical process.   It may  be  sheer  waste of time for  the  accused  to  inspect totally  irrelevant  material.  We are  convinced  that  the Magistrate  has afforded sufficient opportunity and  he  has rightly put his foot down on further procrastination. ,We  dismiss  the petition generally  speaking,  but  having regard  to  the fact that the case begins tomorrow  and  the party has perhaps pinned his hopes upon something  happening in this Court, and also because of the fact that the offence is  a  serious one, we direct the Magistrate  to  start  the

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hearing  and examine the approvers from  20-2-1978  onwards. We  make it clear that the Committing Magistrate  will  take zealous  care to dispose of the committal  proceedings  with despatch.   We  allow the Magistrate four, days  more  time, beyond the date fixed by this Court in the earlier order for the commitment of the case and a like extension in the  rest of the period fixed there. S.R.                                    Petition rejected. 864