Chhadami Lal Jain & Ors Vs. The
State of Uttar Pradesh and another  INSC 115 (14 September 1959)
IMAM, SYED JAFFER KAPUR, J.L.
CITATION: 1960 AIR 41 1960 SCR (1) 736
Criminal Trial-Commitment Order-Quashing
of-Magistrate starting trial as in warrant case-Prosecution witness examined
and cross-examined-Charge framed without giving opportunity to accused to
adduce defence evidence and commitment order passed--No intimation to accused
of intention to commit-Whether commitment order illegalPrejudice--Code of
Criminal Procedure, 1898 (V of 1898), ss. 208, 347 and 537.
A complaint was filed against seven persons
under SS. 409, 465, 467, 471 and 477A of the Indian Penal Code. After examining
the complainant summonses were issued to the accused to answer a charge under
s. 406. 'The trial started as in a warrant case; prosecution witnesses were
examined and cross-examined and the statements of the accused were recorded,
and the Magistrate heard arguments on the question of framing charges.
Thereafter, he framed charges under SS.
409 and 465 read with SS. 471 and 477A, and
without giving previous intimation of his intention to do so, passed an order
committing the appellants to the Court of Sessions.
The appellants, contended that the commitment
was illegal because the case having begun as a warrant case it was incumbent
upon the Magistrate, when he decided to commit the case to the Court of
Session, to follow the procedure provided in Ch. XVIII Code of Criminal
Procedure, but he failed to comply with the provisions of SS. 208 to 213 of.
737 that Chapter. The complainant urged that
even if the provisions of SS. 208 to 213 had not been complied with no
prejudice was caused to the appellants and the commitment could not be(
Held, that the commitment order was illegal
as the Magistrate had failed to comply with the provisions of s. 208 of the
Code of Criminal Procedure. The proceedings having begun as in a warrant case,
if the Magistrate, at a subsequent stage, was of the view that the case should
be committed to the Court of Sessions, he had to act under s. 347(1) of the
Code and to follow the procedure prescribed for inquiries under Ch. XVIII of
the Code. When, in the present case, the Magistrate decided to commit the case,
he should have refrained from framing the charge and should have informed the
accused of his intention to commit and should have called upon the accused to
produce defence evidence, if any. The failure of the Magistrate to intimate his
decision to commit to the accused deprived them of the right to produce defence
evidence, if any, under S. 208.
The denial of this right was itself
sufficient to cause prejudice to the accused and failure of justice inasmuch as
the accused were prevented from leading evidence which might have induced the
Magistrate not to frame the charge against them.
Subramania Iyer v. King-Emperor, (1901) L.R.
28 I.A. 257 Pulukuri Kotayya v. King-Emperor, (1948) L.R. 74 I.A. 65, and'
Narain Rao v. The State of Andhra Pradesh,  S.C.R, 283, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 143 of 1957.
Appeal from the judgment and order dated the
8th May, 1957, of the Allahabad High Court, in Criminal Reference No. 149 of
1956, arising out of the judgment and order dated the 14th January, 1956, of
the First Additional Sessions Judge, Agra, in Sessions Trial No. 141 of 1954
and Criminal Misc.
No. 1 of 1956.
G. S. Pathak and Mohan Behari Lal, for the
G. C. Mathur, C. P. Lal and G. N. Dikshit,
for the respondent No. 1.
Janardan Sharma, for respondent No. 2.
1959. September 14. The Judgment of the Court
was delivered by WANCHOO J.-This is an appeal oil a certificate granted by the
Allahabad High Court in a criminal matter. The facts of the case may be set out
in some 738 detail to bring out the point raised in this appeal. A complaint
was filed by Rajendra Kumar Jain against the four appellants and three others
under ss. 409, 465, 467, 471 and 477A of the Indian Penal Code. It is not
necessary for present purposes to set out the details of the complaint.
Suffice it to say that after the statement of
the complainant under s. 200 of the Code of Criminal Procedure hereinafter
referred to as the Code) summonses were issued to the accused persons requiring
them to answer a charge under s. 406 of the Penal Code. Prosecution witnesses
were then examined and cross-examined and the statements of the accused persons
recorded. The Magistrate then heard arguments on the question of framing of
charges which were concluded on September 23, 1954. It was then ordered that
the case should be put up on September 30, 1954, for orders.
On that date the Magistrate framed charges
against the four appellants under ss. 409 and 465 read with s. 471 and 477A of
the Penal Code. On the same date the Magistrate ordered commitment of the four
appellants to the Court of Session on these charges. The remaining three
accused were discharged.
There was then a revision petition by
Rajendra Kumar Jain against the discharge of one of the three accused, namely,
Bhajan Lal. When the matter came up before the First Additional Sessions Judge
Agra, he ordered suo motu on April 9, 1955, after a perusal of the commitment
order that Bhajan Lal be committed to the Court of Session to stand his trial.
In view of this order he dismissed the
revision petition as infructuous. Thereupon Bhajan Lal went in revision to the
High Court. That petition was heard by Roy, J., and he set aside the order of
commitment of Bhajan Lal and one of the reasons given by him for doing so was
that a Magistrate was not empowered to frame a charge and make an order of
commitment until he had taken all such evidence as the accused might produce
before him. As Bhajan Lal had not been called upon to produce evidence in
defence the order of commitment made by the Sessions Judge was held to be not
in accordance with law. This order was passed on 739 October 6, 1955. Thereupon
on January 7, 1956, the four appellants filed a revision petition before the
Sessions Judge praying that the order of commitment passed against them be
quashed and the main reason advanced in support of this petition was that the
learned Magistrate had not observed the mandatory provisions of law laid down
208 to 213 of the Code which were essential
for a valid commitment. This petition came up before the same First Additional
Sessions Judge and he made a reference to the High Court that as the procedure
followed by the Magistrate was irregular the order of commitment, dated
September 30, 1954, was bad in law, and should be quashed.
This reference came up for bearing before
another learned Judge of the High Court, namely, Chowdhry, J., and he took the
view that the Magistrate had not failed to comply with the provisions of s. 208
and that non-compliance with the provisions of ss. 211 and 212 was curable
under s. 537 of the Code. He, therefore, rejected the reference. There was then
an application for a certificate to appeal to this Court which was allowed, particularly,
as the view taken by Chowdhry, J., was in conflict with the view taken by Roy,
J., already referred to.
The main contention of the appellants before
us is that as the case began before the Magistrate as a warrant case under s.
406 of the Penal Code, it was incumbent upon the Magistrate, when he decided,
in view of the provisions of s. 347 (1) of the Code, that the case should be
committed to the Court of Session, to follow the procedure provided in Ch.
XVIII of the Code and inasmuch as he had failed to comply with ss. 208 to 213
of the Code the commitment was bad in law and should be quashed.
The first question that falls for
consideration, therefore, is whether the Magistrate when he began this case,
was proceeding in the manner provided for the trial of warrant cases. Section
347 (1) of the Code comes into play when at any stage of the proceedings in any
trial before a Magistrate, it appears to him that the ease ought to be tried by
the Court of 740 Session; he has then to commit the accused under the
provisions herein before contained. The Sessions Judge who made the reference
held that the case before the Magistrate proceeded from the beginning as if it
was a trial of a warrant case. It was on that basis that the Sessions Judge
held that when the Magistrate made up his mind that the case ought to be
committed to the Court of Sessions in view of the provisions of s. 347(1) of
the Code it was his duty to observe the procedure laid down in Ch. XVIII,
particularly, under ss. 208, 211 and 212 of the Code. The order of reference
was sent to the Magistrate for explanation, if any, and the Magistrate replied
that he had no explanation to submit. He did not say in his explanation that he
was not proceeding as in a warrant case and that the proceedings before him
throughout were proceedings in the nature of an inquiry under Ch. XVIII. When,
however, the matter came up before the High Court, Chowdhry, J., was of opinion
that though the Magistrate was competent to try the case as summonses has been
issued under s. 406 1. P. C. only, it was open to him to hold an inquiry under
Ch. XVIII from the very beginning in view of the provisions of s. 207 which
empower a Magistrate to follow the procedure provided in Ch.
XVIII in cases exclusively triable by a Court
of Session and also in cases which are not exclusively triable by the Court of
Session but which in the opinion of the Magistrate ought to be tried by such
Court. The High Court was further of the view that the offence mentioned in the
summons should be deemed to have given notice to the accused that it was
optional with the Magistrate to hold an inquiry with a view to commit them to
the Court of Session or to try them himself as in a warrant case because column
8 of Schedule 11 of the Code says that a case under s. 406 is triable by a
Court of Session, Presidency Magistrate or Magistrate of the first or second
class. Therefore, according to the High Court the matter was at large whether
the Magistrate was going to adopt one procedure or the other despite the issue
of summonses under s. 406 of the Penal Code and that 741 nothing had happened
to induce the belief in the accused that they would be tried as in a warrant
case. The High Court, therefore, held that the case was proceeded with from the
beginning as if it was an inquiry under Ch. XVIII and on that view it held that
there was no non-compliance with s. 208 of the Code. As for non-compliance with
ss. 211 and 213, the High Court was of the view that it was curable under s.
537 of the Code as no prejudice was caused.
We must say with respect that this view of
the nature of the proceedings before the Magistrate is not correct. It is true
that it is open to a Magistrate to hold an inquiry 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 inquiry under Ch. 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 nature of a trial and not an inquiry under Ch. XVIII. If the
Magistrate intends to use his powers under s. 207 and hold an inquiry from the
beginning in a case not exclusively triable by the Court of Session, the only
way in which the accused 'Can know that he is holding an inquiry and not a
trial is by the Magistrate informing the accused that he is holding an inquiry
under Ch. XVIII and not 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 an inquiry under Ch. XVIII. Therefore the accused would naturally
conclude that the proceedings before him were in the nature of a trial of a
warrant case as the summonses that they had received were under s. 406 of the
Penal Code only. The fact that in the complaint s. 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 s. 406 of the Penal Code. It must,
therefore, be held that the proceedings before 742 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 s. 347 (1) of the Code. We have been at
pains to refer to this aspect of the matter for considerations would be
different if the case was exclusively triable by the Court of Session and began
from the outset as an inquiry under Ch. XVIII. 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 s. 347 (1).
This brings us to a consideration of the duty
of the Magistrate who takes action under s. 347 (1) of the Code.
That section reads as follows:" 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 his empowered to commit for trial, he shall commit the accused under the
provisions hereinbefore contained." The first question that has to be
decided is the meaning of the words " under the provisions hereinbefore
These words have been the subject of decision
by a number of High Courts and the High Courts are unanimous that they mean
that if the Magistrate decides at some stage of the trial to commit the
accused, he has to follow the provisions contained in Ch. XVIII. It is not
necessary to refer to those decisions for the words themselves are quite clear.
They lay down that if the Magistrate comes to
the conclusion that the accused ought to be committed for trial, he shall
commit in accordance with the provisions contained in the earlier part of the
Code, namely, in Ch. XVIII. This of course does not mean that the Magistrate
must begin over again from the beginning. All that he has to do when he decides
that the case ought to be committed is to inform the accused and see that the
provisions of Ch. XVIII are complied with so far as they have not been complied
743 with up to the stage at which he decides that there ought to be a
commitment. Now the procedure under, Ch. XVIII is laid down in ss. 208 to 213
of' the Code. The Magistrate begins by hearing the complainant, if any, and
takes all evidence that may be produced in support of the prosecution or on
behalf of the accused or as the Magistrate may call himself.
The Magistrate is also required to issue
process to compel the attendance of any witness or the production of any
document or other thing if the complainant or officer conducting the
prosecution of the accused applies to him.
After the evidence under s. 208 has been
taken the Magistrate then examines the accused for the purpose of enabling him
to explain any circumstances appearing in evidence against him under s. 209.
Thereafter if he is of opinion that there are not sufficient grounds for
committing the accused for trial, lie can discharge him unless it appears to
him' that such person should be tried before himself or some other Magistrate
in which case he has to proceed accordingly. On the other hand, if the
Magistrate is of opinion after taking the evidence and examining the accused
that there are sufficient grounds for committing the accused for trial, he has
to frame a charge under s. 210 declaring with what offence the accused is
charged. The charge is then read over and explained to the accused and a copy
thereof, if he so requires, is furnished to him free of cost. After the charge
is framed the Magistrate calls upon the accused under s. 211 to furnish a list
of persons orally or in writing whom he wishes to be summoned to give evidence
on his trial. The Magistrate may also allow the accused to furnish a further
list at a later stage in his discretion.
Section 212 gives power to the Magistrate in
his discretion to summon and examine any witness named in any list under s.
211. Then comes s. 213 which lays down that
if the accused has refused to give a list as required by s. 211 or if he has
given one and the witnesses, if any, included therein whom the Magistrate
desires to examine, have been summoned and examined under s. 212 the Magistrate
may make an order committing the accused for trial by the High Court or the 744
Court of Session and shall also briefly record the reasons for such commitment.
On the other hand, if he is satisfied after hearing the witnesses for the
defence that there are not sufficient grounds for committing the accused, he
may cancel the charge and discharge the accused.
It will be seen from this analysis of the
provisions relating to commitment that s. 208 gives a right to the accused to
produce evidence in defence before the Magistrate examines him under s. 209 and
proceeds to frame a charge under s. 210. Now when a Magistrate makes up his
mind to commit a case not exclusively triable by the Court of Session under
-the power given to him under s. 347 (1) of the Code, he has to follow this
procedure. But as we have said earlier it is not necessary that the Magistrate
should begin from the beginning again when he so makes up his mind.
The Magistrate may make up his mind at any
stage of the trial before him and generally speaking four contingencies may
arise. Firstly, he may make up his mind after the trial is practically over and
the witnesses for the prosecution have been examined and cross-examined after
the charge, the accused has be-en examined both under ss. 253 and 342 of the
Code and all the defence evidence has been taken. In such a 'case ss. 208, 209
and 210 have been complied with and all that the Magistrate has to do is to
intimate to the accused that he intends to commit him for trial and ask him to
give the list of witnesses under s. 211 and proceed thereafter as provided in
Ch. XVIII. Secondly, the Magistrate may make up his mind after all the
witnesses for the prosecution have been examined and cross-examined and the
charge has been framed but no defence has been taken.
In such a case that part of s. 208 which lays
down that all the evidence for the prosecution shall be taken, has been
complied with and the Magistrate may then proceed to comply with the rest of
section 208 and take the defence evidence and then proceed further under ss.
209 to 213 and amend the charge so as to make it conformable to a charge in an
inquiry under Ch. XVIII or cancel it. Thirdly, the Magistrate may make up his
mind after 745 some of the prosecution witnesses have been examined and
cross-examined and a charge has been framed. In such a case he has to examine
the rest of the prosecution witnesses under s. 208 and take the defence
evidence, if any, produced by the accused and then proceed under ss. 209 to 213
amending or cancelling the charge already framed as indicated earlier. Lastly,
the Magistrate may have only just begun taking evidence for the prosecution and
may not have framed a charge. In such a case he takes the rest of the
prosecution evidence and complies with the provisions from ss. 208 to 213. But
in each of these four contingencies it is the duty of the Magistrate to
intimate to the accused that he has made up his mind to commit in view of the
provisions of s. 347(1) and then proceed in the manner indicated above. It is
necessary that the accused should know when the Magistrate makes up his mind to
commit so that their right under s. 208 to produce defence, if any, before
commitment is made is safeguarded.
Now what happened in this case was this. The
Magistrate had apparently taken all the prosecution evidence and the
prosecution witnesses had been examined and cross-examined;
the Magistrate had framed no charges upto
September 30, 1954. He had heard arguments on the question whether any charges
should be framed and had fixed September 30,1954, for orders in this respect.
When, therefore, he decided on September 30,1954, that the case ought to be
committed to the Court of Session, the proper course for him was to refrain
from framing any charges and intimate to the accused that he intended to commit
them for trial. He then should have called upon them to produce defence
evidence, if any, under s. 208 and then proceeded further under Ch. XVIII.
The Magistrate, however, failed to inform the
accused that -he had made up his mind to proceed under s. 347 (1) and to commit
them for trial. What he did on September 30, 1954, was to frame charges
forthwith and record an order committing the accused to the Court of Session
under s. 213 of the-Code. He thus deprived them of their right to lead defence
evidence, if any, under s. 208. It may be that if he had told them that he was
746 going to proceed under s. 347 (1) and commit them for trial and asked them
if there was any defence evidence to be produced, they might have said that
they did not wish to produce any defence before him at that stage. But what the
accused would have said if the Magistrate had proceeded in this manner is
irrelevant in considering the question whether the commitment in this case was
bad in law inasmuch as it did not comply with s. 208 so far as giving the
accused an opportunity to lead defence evidence, if any, was concerned. The
fact remains, therefore, that in this case the Magistrate when he decided to
act under s. 347 (1) did not intimate that decision to the accused and
proceeded forthwith to commit them for trial under s. 213, thus depriving them
of the right to produce defence evidence, if any, under s. 208.
The next question which falls for
consideration is the effect of this non-compliance with s. 208 of the Code and
whether it is curable under s. 537 of the Code. The effect of Don-compliance
with various provisions of the Code and whether such non-compliance is curable
under s. 537 have -been the subject of a large number of cases before various
High Courts and also before their Lordships of the Judicial Committee of the
Privy Council. It is not necessary to refer to this mass of authorities. One of
the earliest of these case decided by the Privy Council is Subramania Iyer v.
King-Emperor (1), while one of the latest is Pulukuri Kotayya v.
King-Emperor(2). The law was summed up by their Lordships of the Judicial
Committee in Pulukuri Kotayya's case (2 ) at p. 75 in these words:
When a trial is conducted in a maner
different from that prescribed by the Code (as in N.A. Subramania Iyer's case
(1), the trial is bad, and no question of curing an irregularity arises; but if
the trial is conducted substantially in the manner prescribed by the Code, but
some irregularity occurs in the " course of such conduct, the irregularity
can be cured under s. 537, and none the less so because the irregularity involves'
as must nearly always be the case, a breach of one or more of the very
comprehensive provisions of the code. The distinction (1) (1901) L.R. 28 I.A.
(2) (1948) L.R. 74 I.A. 65.
747 drawn in many of the cases in India
between an illegality and an irregularity is one of degree rather than of kind.
This view finds support in the decision of
their Lordships' Board in Abdul Rehman v. The King-Emperor(1) where failure to
comply with ss. 360 of the Code of Criminal Procedure was held to be cured by
s. 535 and 537." These observations were quoted with approval by this
Court in Narain Rao v. The State of Andhra Pradesh(2). It seems, therefore,
fruitless to consider whether the non-compliance with s. 208 in this case is an
illegality which cannot be cured under s. 537 or an irregularity which is
curable there under. As the stage of trial has not been reached in this case,
no question arises of considering whether the trial has been conducted in a
manner different from that prescribed by the Code. What we have to see is
whether the breach of s. 208 which has occurred in this case is such that the
Court will presume prejudice to the accused by the mere fact of the breach. If
such presumption can be made, the breach would obviously be not curable under
s. 537 of the Code, even assuming that that section applies. The question,
therefore which eventually emerges is whether this breach of s. 208 is of such
a character that the Court will presume that there has been prejudice to the
accused by the mere fact of the breach. Now the accused has a right under s.
208 to produce evidence in defence, if any, before the Magistrate proceeds to
decide whether a charge should be framed or not. The Magistrate's decision
whether the charge should be framed or not is bound to be affected one way or
the other if evidence is produced by the accused, for the Magistrate 'Would
then be bound to consider the effect of that evidence on the question of
framing the charge. If the accused is denied the opportunity of leading that
evidence which he has a right to do under s. 208, it seems to us that the
denial of such right is sufficient to cause prejudice to the accused and s. 537
would have no application to a case of this kind. The possibility that the
accused may not have produced defence if asked by the Magistrate whether he
would do so, (1) (1926) L.R. 54 I.A. 96, (2)  S.C.R. 283.
748 is of no consequence, so far as this
conclusion is concerned. If this is the reply expected, it makes it all the
more incumbent on the Magistrate to inform the accused that he was intending to
commit the case and ask him if he wished to produce evidence. If the accused
did not want to do so, the Magistrate would have done his duty and his way
would be clear to proceed further with his intention to commit the accused. But
when the Magistrate did not intimate to the appellants in this case that he was
intending to commit them for trial and proceeded to frame charges and pass the
order of commitment forthwith on September 30, he was denying to them their
right to produce defence under s. 208 of the Code. The denial of that right is
in our opinion in itself sufficient to cause prejudice to the accused and
failure of justice inasmuch as the accused were prevented from leading evidence
which might have induced the Magistrate not to frame a charge against them or
cancel it. We are, therefore, of opinion that the breach of s. 208 which took
place in this case was such as was bound to cause a failure of justice and
there is, therefore, no question of the application of s. 537 in these
circumstances. The commitment is, therefore, bad in law and must be quashed on
this ground alone.
In the petition of appeal the appellants have
referred also to breach of provisions of ss. 211, 212 and 213 of the Code.
As we have come to the conclusion that the
breach 'of s. 208 in this case is sufficient to invalidate the commitment it is
not necessary to consider the effect of the further breach of ss. 211, 212 and
213. What we have said in this case wit respect to the effect of the breach of
s. 208 may not be taken as applying to the breach of ss. 211, 212 and 213 for
the considerations arising out of those breaches may be different.
We, therefore, allow the appeal, quash the
order of commitment as well as the charges framed and send the case back to the
Magistrate to proceed in the manner indicated above according to law.