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1970 DIGILAW 126 (KER)

Mathew v. State of Kerala

1970-07-06

E.K.MOIDU

body1970
ORDER E.K. Moidu, J. 1. In this revision petition, the sole question for determination is whether the trial Magistrate has violated any of the provisions of Chapter XVIII Cr.P.C; after switching off the trial of a warrant case to an enquiry as required by section 347 (1) Cr.P.C. 2. P.W. 1, Devassia, who is the 2nd respondent herein, instituted a private complaint registered as C.C. 457/1969 before the Additional First Class Magistrate, Palai on 2nd December 1969 alleging offences under sections 403, 407 and 477-A I.P.C; against the revision petitioner on the ground that on 22nd November 1969 when the 2nd respondent purchased food-grains from the ration shop, of which the petitioner was the salesman, made false entries in the ration card to the effect that the food-grains due for the first week of December 1969 had been issued to him. The learned Magistrate took cognizance of the offence under section 190 (a) Cr.P.C, and proceeded with the trial under section 252 Cr.P.C P.Ws. 1 to 4 were examined, cross-examined and re-examined during the trial on behalf of the 2nd respondent as well as on behalf of the revision petitioner. But, on 31st March 1970 the learned Magistrate thought that it was a fit case to be committed to the Sessions and accordingly after hearing both sides the case was converted as a preliminary enquiry and numbered as P.E. No. 70 of that Court. But, the offence against the revision petitioner was notified to be under sections 467 and 477-A I.P.C. The offence under section 467 I.P.C; is one which is to be tried by the Court of Sessions alone. The learned Magistrate thought rightly that the conversion of the warrant case into a preliminary enquiry is fit and proper. Anyhow, the case was posted to 3rd April 1970 straightaway to question the revision petitioner under section 342 Cr.P.C But, on 3rd April 1970 the Court did not take up the case and so it was adjourned again to 7th April 1970 on which date the petitioner was not present in Court. Anyhow, the case was posted to 3rd April 1970 straightaway to question the revision petitioner under section 342 Cr.P.C But, on 3rd April 1970 the Court did not take up the case and so it was adjourned again to 7th April 1970 on which date the petitioner was not present in Court. The next adjourned date was on 10th April 1970 on which date the learned Magistrate questioned the revision petitioner under section 342 Cr.P.C. After questioning, the case was again adjourned to 18th April 1970, on which date charges under sections 476 and 477-A I.P.C. were framed against the revision petitioner under section 210 Cr.P.C. Thereafter, the case was Posted for defence evidence to 20th April 1970, when the revision petitioner moved the lower that he wanted to file a revision to the High Court. It was accordingly that the present revision was filed to this Court on 28th April 1970. 3. The facts stated above lead to the conclusion that the learned Magistrate, while the trial of a warrant case was in progress, changed over to the procedure as required by section 347 (1) Cr.P.C. That section provides that if in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained. The expression under the provisions hereinbefore contained' refers to the provisions of Chapter XVIII Cr.P.C. But, the learned Magistrate after conversion of the warrant case into an enquiry under Chapter XVIII Cr.P.C. straightaway posted the case for questioning the revision-petitioner-accused under section 342 Cr.P.C. We have to consider whether the procedure followed by the Magistrate had, in any way, prejudiced the revision petitioner. 4. Sections 206 to 220 Cr.P.C. occur in Chapter XVIII, while sections 251 to 259 occur in Chapter XXI Cr. 4. Sections 206 to 220 Cr.P.C. occur in Chapter XVIII, while sections 251 to 259 occur in Chapter XXI Cr. P.C. The trial of a warrant case is conducted under Chapter XXI, which begins with section 252 Cr.P.C. Under section 252, the evidence of the prosecution is to be recorded and if taken all the evidence as referred to in that section and after questioning the accused, if the Magistrate chooses to do so, he finds that no case against the accused has been made out which if unrebutted would warrant his conviction, the Magistrate shall discharge him. If the evidence on examination _ results in a presumption that the accused has committed an offence, which is triable by the Magistrate, he is competent to frame a charge against the accused. After framing of the charge, the accused is given the liberty to cross-examine the prosecution witnesses under section 256 Cr. P.C. on the adjourned date of the case. The last stage is under section 258 Cr. P.C. by which the Magistrate shall either convict or acquit the accused as a result of his trial. But it would be seen from the above provisions that the accused gets ah absolute right of cross-examination of the prosecution witnesses under section 256 Cr. P.C; though the accused did not possess such a right before section 256 Cr.P.C. comes into play. Still, as a matter of right, he is given a right to cross-examine the prosecution witnesses even after the evidence of the prosecution witnesses is taken under section 252 Cr. P.C. But, the Magistrate has no right to stop cross-examination by the accused if the trial has reached the stage when section 256 comes into operation. 5. During the course of the trial of a warrant case as above, the Magistrate would be justified to switch off the trial to an enquiry under Chapter XVIII of the Cr.P.C. which starts with section 206 Cr.P.C. Section 208 enjoins upon the Magistrate to take evidence produced by the complainant as well as the accused. On the basis of the complainant's evidence, the accused is permitted to cross-examine the witnesses for the prosecution and in such a case the Prosecutor can re-examine them. On the basis of the complainant's evidence, the accused is permitted to cross-examine the witnesses for the prosecution and in such a case the Prosecutor can re-examine them. The entire section reads as follows: "(1) In any proceedings instituted otherwise than on a police report, the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any) and take in manner hereinafter provided 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. (2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them. Process for production of further evidence.(3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or things the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (4) Nothing in this section shall be deemed to require a Presidency Magistrate to record his reasons. " 6. It is only after the evidence referred to in sub-sections (1) and (3) of section 208 that the Magistrate can step down to section 209 Cr.P.C. to discharge the accused unless it appears to him that the accused shall be tried before himself or some other Magistrate for the same offence. The Magistrate under sub-section (2) of section 209 is also at liberty to discharge the accused at any previous stage of the case if for reasons to be recorded by him that he considers the charge to be groundless. After taking such evidence as required by section 208 and the accused examined under section 209, the Magistrate may either discharge the accused or if he finds that there are sufficient grounds for commitment he shall frame a charge and read and explain it to the accused as required by section 210. Under section 211 Cr.P.C. the accused shall be required at that time to give a list of persons whom he wishes to be summoned to give evidence, on his trial before the Sessions Judge. Under section 211 Cr.P.C. the accused shall be required at that time to give a list of persons whom he wishes to be summoned to give evidence, on his trial before the Sessions Judge. The Magistrate may at his discretion under section 212 Cr.P.C. summon and examine state any witnesses named in any list given to him under section 211 Cr.P.C. Afterwards, the Magistrate shall make an order of commitment under section 213 (1) Cr.P.C. 7. The above provisions would go to show that under section 208, the Magistrate shall permit the prosecution to produce their witnesses and the accused his witnesses and also permit the accused to cross-examine the prosecution witnesses on commencing the enquiry under Chapter XVIII Cr.P.C. On a reading of the sections of Chapters XVIII and XXI Cr.P.C. in relation to one another, it would be seen that section 252 does not give the accused a statutory right and opportunity of the cross-examination before charge, though such a right is given as a matter of interpretation and on the basis of the principle that the accused must get every opportunity of establishing his innocence. But, under section 208, the accused is given an express and absolute right to cross-examine the witnesses for the prosecution before the charge is framed and the Magistrate has no power to refuse the accused to have cross-examination. In this regard, the observation made in G. L. Biswas and others v. The State A.I.R. 1950 Patna 550 at page 553 may be seen: "Regarding the relevant sections of Chapters 18 and 21 in juxtaposition it is clear that section 252 does not give the accused a statutory right, and the opportunity of cross-examination before charge, which in practice he is given, is given as a matter of interpretation and on the application of the principles that the accused must get every reasonable opportunity of establishing his innocence whereas section 208 expressly gives an absolute right to the accused to cross-examine the witnesses for the prosecution before the charge and the Magistrate has no power to refuse to the accused the right of cross-examination if the latter insists on his right to cross-examine the witnesses for the prosecution. Section 256 gives a statutory right to cross-examine the witnesses for the prosecution. Section 256 gives a statutory right to the accused to cross-examine the witnesses for the prosecution after the charge is framed. Section 256 gives a statutory right to cross-examine the witnesses for the prosecution. Section 256 gives a statutory right to the accused to cross-examine the witnesses for the prosecution after the charge is framed. There is no corresponding right in the accused if the enquiry is under Chapter XVIII; this makes it essential that section 208 (2) must be strictly complied with. Merely because the accused in the initial proceeding has been permitted to cross-examine the witnesses before the charge it cannot be said that he has exercised his right under section 208 (2). Therefore, in our opinion, that would not be a ground for refusing the right of cross-examination by the accused under the mandatory provision of section 208." 8. The learned counsel for the complainant, however, has relied upon a decision reported in Ahmad Din and others v. Emperor A.I.R. 1951 Lahore 371. That is a case which was begun under Chapter XVIII without a conversion of a summons trial or a warrant trial into a preliminary enquiry. During the pendency of the enquiry under section 208 in above case, it was found that the accused did not express his willingness to produce any witnesses, not even defence witnesses cited before the Sessions. So, it was contended that in the absence of any such request by the accused, the Magistrate was not competent to permit the accused either to produce his witnesses or to allow him to cross-examine the prosecution witnesses. That decision does not seem to apply to the facts of the instant case. First of all, that was a case which was begun originally under Chapter XVIII Cr.P.C without the conversion of a trial into an enquiry. The question that the accused witnesses were not permitted to be produced during the enquiry came up for consideration when the Sessions trial was in progress and it has also seen that at no stage of the enquiry, much less even at the Sessions trial, the accused filed a list of defence witnesses. In the instant case the petitioner wanted defence witnesses to be examined. Under those circumstances, it cannot be said that the above decision will, in any way, reflect on the facts and circumstances of the present case. In the instant case the petitioner wanted defence witnesses to be examined. Under those circumstances, it cannot be said that the above decision will, in any way, reflect on the facts and circumstances of the present case. In the present case, the charge of forgery under section 467 I.P.C. was brought for the first time against the accused in the course of the proceedings for other offences. While so, every opportunity should have been given to the accused to produce his witnesses and to cross-examine the prosecution witnesses. He would have had such a right if charges were framed against him and if the warrant trial was continued. When a charge, which is triable by the Sessions Court in the first instance was brought for the first time against the accused in the course of a proceeding under Chapter XVIII Cr.P.C. for other offences as well, every opportunity should have been given to meet a charge which he may with some reason say has taken in by surprise. The order of the Magistrate straightaway posting the case for questioning the accused under section 342 Cr.P.C, without posting it for such evidence as might be produced by the accused under section 208 Cr.P.C has therefore violated the principle of justice and equity to which the accused is entitled when he is to stand a charge for trial before the Sessions Court. 9. In this regard, I might as well quote the observations of the Supreme Court at page 43 of Mathew Chaamilal Jain v. State of Uttar Pradesh A.I.R. 1960 S.C. 41. It reads as follows: "It is true that it is open to a Magistrate to hold an, enquiry from the beginning under Chapter XVIII in a case not exclusively triable by the Court of Session. But the mere fact that the Magistrate has such power does not necessarily indicate to the accused that he is holding an enquiry under Chapter XVIII rather than a trial before himself. Where the case is not exclusively triable by the Court of Session, the accused would naturally conclude that the proceedings before the Magistrate are in the nature of a trial and not an enquiry under Chapter XVIII. Where the case is not exclusively triable by the Court of Session, the accused would naturally conclude that the proceedings before the Magistrate are in the nature of a trial and not an enquiry under Chapter XVIII. If the Magistrate intends to use his powers under section 207 and hold an enquiry from the beginning in a case not exclusively triable by the Court of Session (as was the case in the reported decision), the only way in which the accused can know that he is holding an enquiry and not a trial is by the Magistrate informing the accused that he is holding an enquiry under Chapter XVIII and not a trial. If he fails to do so the accused can reasonably conclude that a trial is being held. In this case undoubtedly the Magistrate did not indicate to the accused from the beginning that his proceedings were in the nature of a trial of warrant case as the summonses that they had received were under section 406 of the Penal Code only. The fact that in the complaint section 467, which is exclusively triable by a Court of Session, was mentioned is of no consequence for the summonses to the accused were only for a trial under section 406 of the Penal Code. It must, therefore, be held that the proceedings before the Magistrate began as in the trial of a warrant case and if the Magistrate at a subsequent stage of the proceedings was of the view that the case should be committed to the Court of Session, he would have to act under section 347 (1) of the Code." Again at page 44 of the above decision, the following further observation is made: "What we shall say hereafter must, therefore be taken to apply only to a case which began as a proceeding in a warrant or summons case and in which the Magistrate at a later stage takes action under section 347 (1). From this observation it appears quite clear that their Lordships laid down a principle as to what procedure should be followed in respect of cases dealt with under section 347, Cr. P.C. by a Magistrate in warrant or summons cases irrespective of the question whether they are exclusively triable by the Court of Session or not. From this observation it appears quite clear that their Lordships laid down a principle as to what procedure should be followed in respect of cases dealt with under section 347, Cr. P.C. by a Magistrate in warrant or summons cases irrespective of the question whether they are exclusively triable by the Court of Session or not. Furthermore, their Lordships have in clear terms held, as stated before that the enquiry under Chapter XVIII should be commenced from the stage at which the learned Magistrate decided that there ought to be commitment. This decision in clear terms envisages that the evidence which was recorded under the warrant procedure enumerated in Chapter XXI should not be knocked off and the Magistrate is required to give the accused all the facilities as provided for in Chapter XVIII from the stage when he decides under section 347 (1) that the enquiry procedure should be embarked upon. In such circumstances the Magistrate is not required to start examination of the very same witnesses once again but will be required to ask the accused to cross-examine the witnesses who were examined in chief in the trial under Chapter XXI and partly cross-examined''. 10. It is seen from the facts and circumstances of this case that the learned Magistrate did not post the case for examination of witnesses of either the prosecution or the accused after he decided upon to convert the warrant trial into a preliminary enquiry on 31st March 1970. On the other hand, the learned Magistrate straightaway posted the case for questioning the accused under section 342 Cr. P.C. As the petitioner was deprived of his right of producing the witnesses or asking for cross-examination, if any, of the witnesses in the light of the inclusion of a new charge under section 467 I.P.C, the failure to post the case after 30th January 1970 for proceedings under section 208 Cr. P.C, has, there- fore, prejudiced the revision-petitioner. It may be that the revision-petitioner may not ask for cross-examination of the prosecution witnesses or he may or may not ask for the production of his witnesses. Still, I should think that to safeguard the interest of the accused and to give him an opportunity to produce his evidence and cross-examine the witnesses, he should have been given a chance as required by section -208 Cr. Still, I should think that to safeguard the interest of the accused and to give him an opportunity to produce his evidence and cross-examine the witnesses, he should have been given a chance as required by section -208 Cr. P.C. It may be true that in the particular case, P. Ws. 1 to 4 would have been cross-examined on behalf of the revision-petitioner before the conversion of a case into a preliminary enquiry on 30th January 1970. Still, the Magistrate should have posted the case for the next hearing date to comply with the provisions of section 208 Cr.P.C, to enable the parties to adduce their evidence and to enable the accused to cross-examine the prosecution witnesses. The failure to permit the petitioner to exercise his right as required by section 208 Cr.P.C, has, therefore, prejudiced the revision-petitioner. That would amount to a denial of an opportunity to which he is entitled under that section to produce his witnesses and to cross-examine the prosecution witnesses. Under these circumstances, I am of the opinion that this is a fit case in which this Court is to interfere and protect the right of the accused as required by section 208 Cr. P.C. 11. In the result, in allowing the revision-petitioner the charges framed against the revision-petitioner are set aside and the case is remanded to the lower court directing it to post the case on a date to enable the complainant as well as the revision-petitioner to exercise their right as required by section 208 Cr. P.C. The Magistrate will thereafter proceed with the enquiry under that section permitting the complainant and the petitioner to produce witnesses if any and examine or cross-examine them if so required. However, I may point out that a de novo enquiry is not contemplated in the circumstances of the case.