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PETITIONER: STATE OF WEST BENGAL

       Vs.

RESPONDENT: TULSIDAS MUNDHRA

DATE OF JUDGMENT: 11/09/1962

BENCH:

ACT: Criminal Procedure--Proceeding on Police report--Accused  if entitled to lead evidence--Power of court to examine  person as  court witness--Magistrate, if bound to  examine  accused person--Code of Criminal Procedure, 1898(Act V of 1898), ss. 207A, 540.

HEADNOTE: Although an accused person is not entitled to lead  evidence in his defence in a proceeding under s. 207A of the Code  of criminal  Procedure, that does not affect the wide powers  a Criminal  Court has under s. 540 of the Code to  summon  and examine  persons as court witnesses where it considers  such examination  essential  for  a just decision  of  the  case. Section  540  of  the  Code is  wide  enough  to  include  a proceeding  under s. 207A of the Code and its  operation  is not excluded by the scheme of s. 207A of the Code. Arunachalam Swami v. State, of Bombay, A.I.R. 1956 Bom.  695 referred to. Sub-section  (6)  of s. 207A of, the Code does not  make  it incumbent  on  the Magistrate to examine an  accused  person unless he thinks it necessary to do so. Consequently, in the present case, where the Magistrate in a proceeding  under s. 207A of the Code rejected the  applica- tion of the accused persons for examination of witnesses  in defence not because he had no power under s. 540 of the Code to  do  so  but  on the  ground  that  the  application  was vexatious  and was intended to delay the proceeding and  the High  Court  in  revision  on  an  erroneous  view  of   the Magistrate’s order set it aside and directed examination  of the accused person under s.342 of the Code. Held, that the order of the High Court must be set aside. 2

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 88  of 1962. Appeal  by special leave from the judgment and  order  dated November 30, 1961, of the Calcutta High Court in Cr. R.  No. 1117 of 1961. D.   R.  Prem,  R.  N. Sachthey and R. H.  Dhebar,  for  the appellant. A.   S.  R. Chari, Ravinder Narain, J. B. Dadachanji and  0. C. Mathur, for the respondent. 1962.   September  11.   The  judgment  of  the  Court   was delivered by GAJENDRAGADKAR, J.-The principal point which the  appellant,

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the State of West Bengal, has raised for our decision in the present appeal, is whether the provisions of section 540  of the Code of Criminal Procedure apply to a case tried by  the Magistrate  under section 207A of the Code.   That  question arises  in this way.  On the 7th July, 1960, a  charge-sheet was submitted under s. 173 of the Code by Inspector Bhuromal of the Special Police Establishment, New Delhi, in the Court of the Chief Presidency ’Magistrate, Calcutta, against  Hari Das  Mundhra,  accused No. 1, and  the  respondent  Tulsidas Mundhra, accused No. 2, under section 12OB/409 and  sections 409 and 477-A of the Indian Penal Code.  On the 5th  August, 1960,  both the accused persons appeared before the  learned Chief Presidency Magistrate and furnished bail.  Thereafter, the   case  was  transferred  to  M.  Roy,  the   Presidency Magistrate 5th Court for further proceedings. On  the  10th October, 1960, copies of  the  documents  were furnished  to the accused persons, and since the record  was voluminous, the hearing of the case was adjourned to the 7th December,  1960.  On the 1st March, 1961 parties were  heard and  in view of the nature of the offences and  the  amounts involved, 3 the  Magistrate  took  the view that the  proper  course  to follow would be to adopt the commitment proceedings as  laid down  in s. 207A of the Code.  Subsequently,  the  procedure prescribed  by  the said section was followed.   It  appears that accused No. 1 who had in the meanwhile been,  convicted in another case was undergoing a sentence of imprisonment in the District jail at Kanpur and so, he could not be produced before the Magistrate until the 7th July, 1961.  That is why the case had to be adjourned on some occasions and effective hearings  did  not make a material progress  until  the  7th July. On  the  6th  July, 1961, the respondent  filed  a  petition before the Magistrate alleging that amongst the  documentary evidence  sought  to  be  relied upon  against  him  by  the prosecution were included three cheques and the  prosecution case  was  that  the  writing on  the  cheques  was  in  the handwriting of the respondent.  The respondent disputed this allegation   Pan  prayed  that  he  should  be  allowed   an opportunity  to examine defence witnesses to prove that  the impugned handwriting was not his. On  the  7th  July, 1961, when the case  was  taken  up  for hearing  before  the  Magistrate, he  first  considered  the application made by the respondent to call defence witnesses and  on the merits, he rejected the said application.   Then he  proceeded to make an order of commitment.  In  rejecting the  application  of the respondent  for  examining  defence witnesses,  the Magistrate took into account the  fact  that the  application had been deliberately made at a  very  late stage  in order to prolong the proceedings in his Court  and so,   that   was  one  reason  why  he   thought   that   an unconsciousably delayed petition which had been made  solely with  the object of gaining time should not be granted.   He also  held  that the application was misconceived.   It  was urged  before the Magistrate that he could examine the  said witnesses  and  in support of this  argument,  reliance  was placed on a 4 decision of the Bombay High Court in the case of Arunachalam Swami  v. State of Bombay (1).  The learned Magistrate  took the  view  that  the said decision  was  distinguishable  on facts.   Whilst the learned Magistrate was  delivering  this order,   an  application  was  made  before  him  that   the respondent wanted to move the higher Court for a transfer of

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the  case, and though the learned Magistrate felt that  this application   also  was  intended  merely  to  prolong   the proceedings  in  his Court, he adjourned  the  case  because under  s. 526(8) it was obligatory on him to do so. That  is why  he adjourned the hearing of the case to the 20th  July, 1961,  for passing the remaining portion of the final  order in  case  the respondent failed to obtain  from  the  higher Court’ the necessary order of transfer. This  order was challenged by the respondent by  moving  the Calcutta High Court in its criminal revisional jurisdiction. The  High Court took the view that s. 540 applied  to  cases tried  under  s.  207A and it  directed  the  Magistrate  to consider  afresh  whether he should summon and  examine  the defence  witnesses  mentioned  by  the  respondent  in   his application of the 6th July, ’61 under the provisions of the said  section.  Incidentally, the High Court  also  observed that  the accused persons had not been examined under  s.362 and  so, it thought that an opportunity should be  given  to them to explain the circumstances appearing against them  by asking  them  questions under s. 342, This  observation  was made  even though the High Court did not think it  necessary to  decide  the  general question whether  in  a  commitment enquiry,   examination  of  the  accused  under   s.342   is compulsory  or  not.   In the result, the  order  passed  by the’.Magistrate on the 7th July, 1961, was set aside and the matter was sent back to his Court for disposal in accordance with  law.  It is against this order that the appellant  has come to this Court by special leave and on its behalf (1)  A. 1. R. 1956 Bom. 695. 5 Mr. Prem has contended that the High Court was in’ error  in holding that s. 540 of the Code applied to proceedings under s.  207A.   In  the  alternative, he  has  argued  that  the Magistrate had himself considered the question as to whether the witnesses should be examined in the light of his  powers under s. 540 and so, even if his first point failed, he  was entitled to contend that the High Court was not justified in sending the case back to the Magistrate.  There is no point, he argues, in asking the Magistrate to consider the question once again. There is no doubt that the new provisions under s.207A  have been introduced for the purpose of expediting the commitment proceedings so as to shorten the duration of criminal  cases which  are  exclusively triable by the Court of  Session  or High Court.  Section-206, inter alia, confers powers on  the Magistrates  specified in the section to commit  any  person for  trial  to the Court of Session or High  Court  for  any offence triable by such Court.  Under s.207, it is  provided that  in regard to a case which is triable exclusively by  a Court of Session or High Court, or which, in the opinion  of the  Magistrate,  ought  to  be tried  by  such  Court,  the Magistrate  shall  : (a) in any proceeding instituted  on  a Police report follow the procedure specified in s.207A;  and (b) in any other proceeding, follow the procedure  specified in  the other provisions of this Chapter.  Thus, s. 207A  is applicable  to proceedings in respect of offences which  are exclusively  triable by the Court of Session or High  Court, or  which,  in the opinion of the Magistrate,  ought  to  be tried   by  such  Court.   This  section  consists   of   16 subsections  which, in a sense, constitute a  self-contained Code  which has to be followed in dealing with  cases  under the said section.  Sub-section (2) authorises the Magistrate to  issue a process to compel the attendance of any  witness or  the  production of any document or  thing.   Under  sub- section (3), the Magistrate has to satisfy himself that

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6 the documents referred to in section 173 have been furnished to  the accused and if they are not so furnished, he has  to cause  the  same to be so furnished.  Sub-section  (4)  then deals  with the stage where the Magistrate proceeds to  take evidence of such persons, if any, as may be produced by  the prosecution  as  witnesses to the actual commission  of  the offence  alleged, and it adds that if the Magistrate  is  of opinion that it is necessary in the interests of justice  to take the evidence of any one or more of the other  witnesses for  the  prosecution, he may take such evidence  also.   By sub-section  (5),  the accused is given  liberty  to  cross- examine the witnesses examined under sub-section (4).   Sub- section  (6)  then lays down that if  evidence  is  recorded under sub-section (4) and the Magistrate has considered  all the  documents referred to in s.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, he 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, unless he thinks that such person should  be tried before himself or some other Magistrate, in which case he shall proceed accordingly.  Sub-section (7) deals with  a case  where  on considering the evidence and  the  documents produced and after giving opportunity to the prosecution and the  accused to be 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".  Sub-section (8) then lays down that as soon  as  the charge has been framed, it shall be  read  and explained  to  the accused and a copy thereof given  to  him free  of cost.  Under sub-section (9), the accused shall  be required at once to give in, orally or in writing, a list of the  persons, if any, whom he wishes to be summoned to  give evidence on 7 his  trial.  There is, a proviso to this  sub-section  which entitles the Magistrate in his discretion to allow such list to  be  given  later, but we are  not  concerned  with  that proviso in the present appeal.  The rest of the clauses  are not relevant for our purpose. It  will  thus be seen that before  the  Magistrate  decides either to discharge the accused person, or to direct that he should he tried by himself or by any other Magistrate, or to commit him to the Court of Session or High Court, he has  to consider the evidence recorded before him under  sub-section (4) and the documents referred to in s. 173.  It is open  to him  to  examine  the accused person also if  he  thinks  it necessary  to  do  so for the purpose  of  enabling  him  to explain circumstances appearing against him in the evidence. He  has, of course, to hear the prosecution and the  accused person before making the order.  The scheme of s. 207A  thus does  not  appear  to provide for a defence  witness  to  be examined before an order is passed either under  sub-section (6)  or  sub-section(7),  and that may  be  because  it  was thought  by  the Legislature that in dealing  with  criminal cases  instituted on a police report, it may ordinarily  not be necessary to prolong the enquiry by allowing the  accused person  to lead evidence in defence and so, no provision  in that  behalf  has been made.  Even the  examination  of  the accused  person  has  been left to  the  discretion  of  the Magistrate under sub-section (6) Sub-section (7) also  shows that  the  examination  of  the accused  person  is  in  the

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discretion  of the Magistrate.  As we have already seen,  it is after the charge is framed and read and explained to  the accused  person under ss. (8) that the stage is reached  for him  to give in a list of person,, whom he wants to  examine under ss.(9). This  position  shows a striking contrast  to  the  relevant provisions  of s. 208.  Section 208 deals with  cases  where proceedings  are  instituted  otherwise  than  on  a  police report, and it provides that when the accused 8 person is brought before . the Magistrate, he shall  proceed to hear the complainant, if any, and take all such  evidence as  may  be  produced in support of the  prosecution  or  on behalf  of  the  accused, or as may be  called  for  by  the Magistrate.   Section 208 (3) provides, inter alia, that  if the  accused applies to the Magistrate to issue  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. In other words, in  regard  to  the proceedings  tried  under  s.  208,  an  accused  person  is entitled to lead evidence in defence and the ’Magistrate  is bound  to allow such evidence to be led, except, of  course, where he comes to the conclusion that such evidence need not be  led  in  which case he has to record  his  reasons  for. coming  to that conclusion.  When we consider  the  relevant provisions   of   s.  207A  and  contrast  them   with   the corresponding provisions of s. 208, it becomes clear that an accused  person has no right to lead evidence in defence  in proceedings  governed by s. 207A, whereas he has a right  to call  for such evidence in proceedings governed  by  section 208. This  position, however, does not affect the question as  to whether  s. 540 applies even to the proceedings governed  by s.  207A.   Section 540 gives power to the Court  to  summon material witness or examine a per-son in attendance,  though not  summoned  as a witness, or recall  and  re-examine  any person  already  examined,  and  the  section   specifically provides  that the Court shall summon and examine or  recall and re-examine any such person if his evidence appears to it essential  to  the just decision of the case.  It  would  be noticed  that this section confers on criminal  courts  very wide  powers.   It  is no doubt for the  court  to  consider whether its power under this section should be exercised  or not.  But if it is satisfied that the evidence of any person not  examined  or  further evidence of  any  person  already examined is essential to 9 the  just decision of the case, it is its duty to take  such evidence.  The exercise of the power conferred by s. 540  is conditioned  by the requirement that such exercise would  be essential to the just decision of the case.  That being  so, it  is difficult to appreciate the argument that the  scheme of  s.  207A  excludes  the application of  s.  540  to  the proceedings governed by the former section.  It is true that s.207A  does  not  give an accused person a  right  to  lead evidence  in  defence, and so, he would not be  entitled  to make  an  application  in  that behalf;  but  that  is  very different from saying that in proceedings under s. 207A  the Magistrate  has  no  jurisdiction to examine  a  witness  by exercising  his  powers  under s. 540.  The  denial  to  the accused person of the right to lead evidence in defence  has no  material  bearing  on the question  as  to  whether  the Magistrate can exercise his powers under s. 540.  We do  not think that the scheme of the special provisions contained in

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s.  207A  legitimately  leads  to  the  inference  that  the applicability of s. 540 is thereby excluded.  Sometimes,  if a statute contains a special or particular provision dealing with a special or particular case or topic and also includes a  general  provision  dealing  with  the  said  special  or particular  topic or case as well as others, the  particular or  the  special provision excludes the application  of  the general provision in respect of the topic or case covered by the  former.   That,  however, is not the  position  in  the present  case, because section 207A suggests,  by  necessary implication,  for  the. exclusion of  the  accused  person’s right to lead evidence, whereas s. 540 does not refer to the right  of the accused person or the prosecution to lead  any evidence,  but  deals  with the  court’s  power  to  examine witnesses  as  court witnesses in the interest  of  justice. Section  540 in terms applies at any stage of  any  enquiry, trial or other proceeding under this Code.  This section  is wide enough to include a proceeding under s. 207A and so, it would  be unreasonable to contend that the scheme of  s.207A makes section 540 inapplicable to the proceedings 10 governed  by s. 207A.  The power of the court under  s.  540 can  be exercised as much in regard to cases governed-by  s. 207A as in regard to other proceedings governed by the other relevant   provisions  of  the  Code.   Therefore,  we   are satisfied that Mr. Prem is not justified in arguing that the Magistrate had no jurisdiction to examine witnesses as court witnesses  even if he had held that the examination of  such witnesses  would  be essential to the just decision  of  the case. The alternative argument urged by Mr. Prem still remains  to be considered.  The High Court seems to have thought that in rejecting  the application of the respondent  for  examining defence witnesses, the Magistrate took the view that he  had no  power  to do so in the present proceedings  because  his jurisdiction  was circumscribed by the provisions of s.  207 A. That appears to be the sole basis of the decision of  the High  Court  in reversing the order of  the  Magistrate  and sending the proceedings back to his court.  In our  opinion, the High Court was in error in assuming that the  Magistrate had  not  considered  the  question  on  the  basis  of  the applicability  of  s.  540.  In fact,  as  we  have  already pointed  out, when the Magistrate’s attention was  drawn  to the  decision  of  the  Bombay High Court  in  the  case  of Arunachalam  Swami(1) he observed that the case was  distin- guishable  on  facts;  he  did not say  that  the  case  was irrelevant because s.540 was inapplicable to the proceedings before  him.   If he had taken the view that s.540  did  not apply at all, the Magistrate would obviously have said  that the  Bombay decision had no relevance.  The reason given  by the  Magistrate that the case was distinguishable  on  facts postulates  that s.540 was applicable, but in  his  opinion, the particular decision was of no assistance to the  respon- dent,  having regard to the difference of facts between  the case before the Magistrate and the Bombay case.   Therefore, the  order passed by the Magistrate cannot  be  successfully challenged on the ground that the (1)  A. I. R. 1956 Bom. 695.  11 Magistrate did not consider the question under s. 540 of the Code. It  appears from the order passed by the learned  Magistrate that  he took the view that having regard to the  voluminous evidence adduced by the prosecution, there was no  substance in the allegation of the respondent that the evidence of the

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witnesses whom he proposed to examine was material or  would be decisive.  He has observed that the documentary  evidence adduced  by  the prosecution was voluminous and  it  clearly showed a prima facie case against both the accused  persons. In that connection, he has also commented on the conduct  of the  respondent.   The  photostat  copies  of  the  disputed cheques  had been given to both the accused  persons  nearly nine months before the 6th July, 1961.  Arguments in respect of  these documents were urged before the Magistrate  nearly two  months before the said date.  At no stage was  it  ever suggested  to the Magistrate that the respondent  wanted  to lead evidence to show that the writings on the cheques  were not  in  his handwriting and that the said fact,  if  proved would   materially   affect  the  prosecution   case.    The conclusion  of the Magistrate was that the application  made by the respondent was vexatious and so, was intended  merely to  delay  the  proceedings in his court.  In  view  of  the reasons  given  by the learned Magistrate in  rejecting  the application  of  the  respondent, it is  very  difficult  to sustain the view taken by the High Court that the Magistrate was  inclined  to  hold  that s.540 did  not  apply  to  the proceedings in the present case. The  High  Court  has also referred to  the  fact  that  the accused  persons have not been examined under s.342  of  the Code, and it has apparently asked the Magistrate to  examine the accused persons under that section, without  considering the  question  as  to  whether it  was  necessary  that  the Magistrate should 12 examine them at this stage.  We have already referred to the relevant  provisions  of  s.207  A  (6).   Sub-section   (6) provides  that the Magistrate can examine the accused if  he thinks  it necessary to do SO.  Besides, even  according  to the  judgment of the High Court, the failure to examine  the accused  persons  under s.342 did not amount to  a  material irregularity and could not-by itself, therefore, justify the reversal of the order passed by the learned Magistrate. The  result is, the appeal is allowed, the order  passed  by the  High Court is set aside and that passed by the  learned Magistrate on the 7th July, 1961, is restored.  It is to  be regretted  that the proceedings taken by the  respondent  in the  High Court and those taken by the appellant  after  the decision  of the High Court have added to the length of  the life of this criminal case; and so, it is desirable that the Magistrate  should proceed to pronounce his final orders  as expeditiously as possible and the case should thereafter  be tried by the Court of Session without unnecessary delay. Appeal allowed.  13