Shriram & Ors Vs. The State of
Bombay  INSC 263 (5 December 1960)
IMAM, SYED JAFFER DAYAL, RAGHUBAR
CITATION: 1961 AIR 674 1961 SCR (2) 890
CITATOR INFO :
R 1965 SC 712 (8) RF 1966 SC 595 (11) R 1976
SC 263 (13)
Criminal Trial--Commitment--If can be made
without recording any evidence--Duty of Committing Court--Code of Criminal
Procedure, 1898 (V of 1898), s. 207--A.
On the date fixed for the inquiry the
prosecution intimated to the Magistrate that it did not intend to examine any
witness in the Magistrate's Court. The Magistrate adjourned the inquiry to
consider whether it was necessary to record any evidence before commitment. On
the adjourned date he expressed his opinion that no witnesses need be examined,
framed charges against the appellants and committed them to the Sessions Court.
The appellants contended that the Magistrate had' no jurisdiction to commit
them to Sessions without examining witnesses under sub-s. (4) of s. 207-A of the
Code of Criminal Procedure.
Held, that the order of commitment was valid
and the Magistrate had jurisdiction to make it 'Without recording any evidence.
The position under s. 207-A of the Code is that:
(i) the Magistrate is bound to take evidence
of only such eye-witnesses as are actually produced by the prosecution before
the Committing Court;
891 (ii) the Magistrate if he is of opinion
that it is in the interests of justice to take evidence whether of. eyewitnesses,
or of others, he has a duty to do so;
(iii).....the Magistrate, if he is not of
that opinion and if the prosecution has not examined any eye-witnesses, he has
jurisdiction to discharge or commit the accused on the basis of the documents
referred to in s. 173 of the Code;
(iv).the discretion of the Magistrate is a
judicial discretion which is liable to be corrected by a superior Court,
Macherla Hanumantha Rao v. The State of Andhra Pradesh,  S.C R. 396,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 57 and 58 of 1960.
Appeals by special leave from the judgment
and order dated November 5/6, 1958, of the Bombay High Court at Nagpur in Criminal Appeal No. 94 of 1958.
Jai Gopal Sethi and G. C. Mathur, for the
appellant (in Cr. A. No. 57 of 1960).
G....C. Mathur, for the appellant (in Cr. A.
No. 58 of 1960).
Gopal Singh and D. Gupta, for the respondent.
1960. December 5. The Judgment of the Court
was delivered by SUBBA RAO, J.-These two appeals raise rather an important
question on the interpretation of the provisions of s. 207A of the Criminal
Procedure Code (hereinafter referred to as the Code). ' The facts that have
given rise to these appeals may be briefly stated. The appeals arise out of an
incident that took place on November 29, 1957, when one Sadashiv was murdered
in the courtyard of his house in village Nimgaon.
The case of the prosecution was that the four
appellants, armed with sticks, went to the house of the deceased, dragged him
'out of the house and beat him with sticks in the courtyard; and that as a
result of the beating he died on the next day at about 5 p.m. at Bhandara
Hospital. After investigation, the police submitted their report to the
Magistrate under's. 173 of the Code along with the relevant documents. After
forwarding the report, the officer in charge of the; police station furnished
892 the appellants with a copy of the report forwarded under sub-s. (1) of s.
173, the First Information Report recorded under s. 154 and all other documents
or relevant extracts thereof on which the prosecution proposed to rely,
including the statements recorded under sub-S. (3) of S. 161 and also intimated
them of the persons the: prosecution proposed to.
examine as its witnesses. The Magistrate
posted the case for inquiry on February 10, 1958 and on that date the
prosecution intimated that it did not intend to examine any witnesses in the
Magistrate's Court., , On behalf of the appellants no objection was raised, to,
that course. But the Magistrate adjourned the inquiry to February 12, 1958, as he wanted to consider whether any evidence was necessary to be recorded before
commitment. On February 12, 1958, re-expressed his opinion that no witness
need. be examined at that stage; thereafter, he framed charges against accused
appellants under s. 302, read with s. 34, of the Indian Penal Code, and also
under s. 448 thereof and committed the appellants to the Sessions Court.
Before the learned Sessions Judge the
prosecution led four types of evidence, i.e. (1) eye-witnesses, namely, P.Ws.
6, 11, 20 and 25; (2) dying declaration, Ex. P-15, supported by P. Ws. 18,22
and 19; (3)-the identification of the appellants in jail by P.Ws. 20 and 25;
and (4) recovery of various articles at, the instance of the
The defence examined four witnesses. On a consideration
of the entire evidence, the learned Sessions Judge held that, the prosecution,
case had been amply borne out and that the four appellants entered into the
house of the deceased and beat him in the manner described by the prosecution
witnesses. As. no less than 12 confused wounds were inflicted on the deceased,
which resulted in the fracture of his ribs and injury to the lung,. and as the,
doctor opined that the death was due to shock and haemorrhage resulting from
said fracture, the learned Sessions Judge hold that the accused appellants were
guilty of murder and convicted them under s.302, read with a. 34, Indian Penal Code,
and he further convicted them, under s. 448 of the Indian 893 Penal Code for
trespassing into the house of the deceased.
On these findings the learned Sessions Judge
sentenced the appellants to undergo imprisonment for life on the first count
and for 3 months rigorous imprisonment on the second count. The appellants
preferred an appeal against their convictions and sentences to the High Court
of Bombay at Nagpur. The learned Judges of the High Court, on a resurvey of the
entire evidence, agreeing with the learned Sessions Judge, accepted the
prosecution case, but they held that the appellants were guilty only under s.
304, Part 1, read with s. 34, Indian Penal Code, and in the result they reduced
the sentence from life imprisonment to 10 years' rigorous imprisonment in
regard to appellant 1 and to 7 years' rigorous imprisonment in regard to
appellants 2 to 4.
Against the said convictions and sentences,
the appellants have preferred, by special leave, appeals to this Court.
Criminal Appeal No. 57 of 1960 has been
preferred by the first appellant and Criminal Appeal No. 58 of 1960 by appellants
2 to 4.
Learned counsel for the appellants raised
before us the following two points: (1) The Sessions Court and, on appeal, the
High Court have not properly appreciated the evidence and the circumstances of
the case in holding that the appellants had committed the offences. (2) The trial
and conviction of the appellants by the Sessions Court were null and void, as
the Magistrate had no jurisdiction to commit the appellants to Sessions without
examining witnesses under sub-s. (4) of s. 207A of the Code and that, as the
order of 'committal was without jurisdiction, the defect was not cured either
under s. 532 or s. 537 of the Code.
The first question does not merit any
consideration. Both the courts below have, carefully considered the evidence
adduced by the prosecution as well as the accused-appellants and have accepted
the prosecution case. It is a well established practice of this Court not to
interfere on questions of fact, particularly when they are concurrent findings,
except under exceptional circumstances. We find, no such exceptional 894
circumstances in this case. We, therefore, reject the first contention.
The second contention turns upon the
interpretation of the relevant provisions of S. 207A of the Code. Before
attempting to construe the relevant provisions of the section it would be
helpful to notice briefly the history of the said section. Under the Criminal
Procedure Code, as it originally stood, in the matter of committal proceedings
there was no distinction between the proceeding instituted on a police report
and that instituted otherwise than on police report. The main object of the
committal proceedings was to hold an inquiry to ascertain and record the case
which was to be tried before the Court of Sessions. It was primarily to give an
opportunity to an accused to know in advance the particulars of evidence that
would be adduced against him in the Court of Sessions so that he could be in a
position to prepare his defence. Another object, which was no less important,
was to enable the Magistrate to discharge an accused if there was no prima
facie case against him. This procedure prevented unnecessary harassment to such
accused and at the same time saved the valuable time of the Sessions Court. In
practice the committal proceeding, whether intended by the Legislature or not,
served another purpose, namely, it gave an opportunity to the accused to test
the credibility of witnesses by bringing out the discrepancies between their
evidence in the committing court, the statements made by them to the police
under s. 161 of the Code and the evidence given by them in the Court of
Sessions. Though very often accused persons took full advantage of this
additional opportunity to test the veracity of the witnesses, as often as not,
it had turned out to be duplication of trials with the resultants long delays
in the disposal of criminal cases. The advantage of committal proceeding. was
not solely for the accused, for the. prosecution by examining the witnesses
before the committing Magistrate secured their testimony in the sense that though
it was tampered subsequently--it is unfortunately a frequent phenomenon in
criminal, cases-it could use the said evidence as substantive 895 one under s.
288 of the Code. The Legislature, in its wisdom, presumably thought that undue
delay in the disposal of sessions cases was due to the elaborate and' prolonged
committal proceedings and stepped in to amend the Code in that respect. The
whole of s. 207A has been inserted by Act XXVI of 1955. While the section
simplified the procedure in regard to commitment proceedings instituted on a
police report, it confined the existing procedure to proceedings initiated
otherwise than on a police report. This distinction between the two classes of
cases had a reasonable factual basis. In the case of a police report, a
thorough inquiry would have been made and the investigating officer would have
sent a report to the Magistrate under s. 173 of the Code. The amended s. 173 of
the Code also enjoins on the officer in charge of the police station a duty to
furnish before trial, free of cost, to the accused copies of the report
forwarded under that section to the Magistrate, the First Information Report
recorded under s. 154 and all other documents or relevant extracts thereof on
which the prosecution proposes to rely, including the statements, if any,
recorded under s. 164 of the Code and those recorded under sub-s. (3) of s. 161
and a list of witnesses whom the prosecution proposes to examine as its
witnesses. The Magistrate in a proceeding instituted on police report would
ordinarily be in a position, on the said material to understand the case of the
prosecution and know the nature of the evidence that would be adduced on the
basis of which the accused is sought to be proceeded against. The accused also
would have an opportunity to know beforehand the case he would have to meet and
the evidence that would be adduced against him. But in a proceeding instituted
otherwise than on a police report, no such maternal would be available and
therefore the old procedure continued to apply to such a case. With this
background let us look at the provisions of s. 207A of the Code. The relevant
provisions of s. 207A of the Code may now be read:
Section 207A: (1) When, in any proceeding
instituted on a police report, the Magistrate receives the 896 report forwarded
under section 173, he shall, for the purpose of holding an inquiry under this
section, fix a date which shall be a date not later than fourteen days from the
date of the receipt 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)..At the commencement of the inquiry, the
Magistrate shall, when the accused appears or is brought before him, 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
documents or any of them, he shall cause the same to be so furnished.
(4)..The Magistrate shall then proceed 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
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.
(5)..The accused shall be at liberty to
cross-examine the witnesses examined under sub-section (4), and in such case,
the prosecutor may re-examine them.
(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, unless it appears to
the Magistrate 897 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 (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
On the interpretation, of sub-s. (4), which
is the main subsection under scrutiny in the present case, the High Courts in
India have expressed conflicting views. It would not be necessary to consider
the said decisions in detail, but it would be enough if we state the
conflicting views, which areas follow: (1) Under sub-s. (4) the prosecution is
bound to examine all the eye-witnesses indicated in the police report, and the
discretion of the Magistrate to examine witnesses under the second part of the
said sub-section is only in respect of witnesses other than the eye-wit-nesses:
vide M. Pavalappa v. State of Mysore (1),
State v. Andi Betankar (2), Ghisa v. State (3 ) and Chandu Satyanarayana v. The
State (4). (2) The Magistrate's power to examine eyewitnesses under the first
part of sub-s. (4) is confined only to such witnesses as are produced in court
by the officer conducting the prosecution and if he has not produced any such
witnesses, the Magistrate cannot examine any eye-witnesses under the second
part of the said subsection, for, according to this view, the second part deals
with only witnesses other than eye-,witnesses. (3) If the prosecution has not
produced any eye-witnesses the court may not in its discretion examine any
witness under the second part, but can, if satisfied, discharge or commit the
accused to sessions on the basis of the documents referred to in s. 178 of the
Code: vide State v. Lakshmi Narain (5), State, of U. P. v. Satyavir (6). (4)
The first part confers a power on a Magistrate only to examine the eyewitnesses
produced, but (1) A.I.R. 1957 Mysore 61.
(3) A.I.R. 1919 Raj. 294.
(5) A.I.R. 1960 All. 237.
(2) A.I.R. 1958 Orissa 241.
(4) A.I.R. 1959 A.P.651.
(6) A.I.R. 1959 All. 408.
898 the second part empowers him to examine
any witness other than those produced, whether eyewitnesses or not, and in a
case where the prosecution failed to discharge its duty to produce any
witnesses or any important eye-witnesses, the court would not be exercising its
judicial discretion if it commits the accused to sessions on the basis of
documents referred to under s. 173 of the Code without examining at least the
important witnesses: vide State v. Yasin (1), In re Pedda Amma Muttigadu (2),
A. Ishaque v. The State (3) and Manik Chand v. The State (4). We have gone
through the judgments of the High Courts cited at the Bar and derived
considerable assistance from them for deciding the question raised. But as the
question is to be primarily decided on the interpretation of the relevant
provisions, we think, without any disrespect to the learned Judges, that it is
not necessary to consider the said decisions in detail.
Now let us look at the relevant provisions of
s. 207A of the Code to ascertain its intendment. Sub-s. (4) is the most
important section vis-a-vis the taking of evidence. It is in two parts, the
first part provides for the examination of witnesses produced by the
prosecution and the second part for the examination of other witnesses. One of
the fundamental rules of interpretation is that if the words of a statute are
in themselves precise and unambiguous "no more is necessary than, to
expound those words in their natural and ordinary sense, the words themselves
in such case best declaring the intention of the legislature". The first
part of the sub-section reads: "The. Magistrate shall then proceed 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." The word
"shall" imposes a peremptory duty on the Magistrate to take the
but the nature of the said evidence is
clearly defined thereafter. The clause "as may be produced by the
prosecution as witnesses to the actual commission of the offence alleged"
governs the words "such persons";
(1) A.I.R. 1958 All. 861.
(3) A.I.R. 1958 Cal. 341.
(2) A.I.R. 1959 A.P. 469.
(4) A.I.R. 1958 Cal. 324.
899 with the result that the duty of the
Magistrate to take evidence is only confined to the witnesses produced by the
prosecution. Learned counsel for the appellants contends that it could not have
been the intention of the Legislature to permit the prosecution to keep back
the eye-witnesses in the committal court and therefore the word
"produced" should be read as "cited". To accept this interpretation
is to substitute the word "cited" in place of the word
such a construction is not permissible,
especially, when the plain meaning of the word used by the Legislature is clear
and unambiguous, and the acceptance of that meaning does not make the section
otiose. The phrase "if any" between the words "such
persons" and the aforesaid clause emphasizes that the prosecution may not
produce any such persons, in which case the obligation to examine such
witnesses cannot arise. The wording of the second part of the sub-section is
also without any ambiguity and it reads: "and 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." No doubt the word "may" in the clause "he
may take evidence" imposes duty upon the Magistrate to take other
evidence; but that duty can arise only if he is of opinion that it is necessary
in the interests of justice to take the evidence. The fulfillment of the
condition that gives rise to the duty is left to the discretion of the
Magistrate. The duty to take evidence arises only if he is of the requisite
opinion. Doubtless the discretion being a judicial one, it should be exercised
reasonably by the Magistrate. If he exercises it perversely, it may be liable
to be set aside by a superior court. If so, what do the words "other.
witnesses" mean? Do they mean witnesses other than eyewitnesses or
witnesses, eye-witnesses or not, other than those produced before the
Magistrate, by the prosecution? The witnesses who will depose to the
prosecution case may be of different categories, namely, (i) witnesses who are
eye-witnesses to the actual commission of the offence alleged; (ii) witnesses
who speak to the facts 900 which afford a motive for the commission of the
(iii) witnesses who speak to the
investigation and to the facts unfurled by the investigation; and (iv)
witnesses who speak to the circumstances and facts probablizing the commission
of the offence, which is technically described as substantive evidence.
Sub-section (4) enjoins on the Magistrate a duty to examine the first category
of witnesses produced by the prosecution. The word "actual"
qualifying the word "commission" emphasises the fact that the said
witnesses should be those who have seen the commission of the offence. We have
held in interpreting the first part that the Magistrate should examine only
such witnesses who are produced before him by the prosecution; but there may
not be eyewitnesses in a case, or, if there are, the prosecution may not have
produced all of them before the Magistrate. The second part of the sub-section
therefore confers a discretionary power on the Magistrate to examine any one or
more of witnesses of all categories, including the eye-witnesses who have not
been produced by the prosecution within the meaning of the first part of the
said sub-section. But it is said that sub-ss. (6) and (7) indicate that taking
of evidence by the Magistrate is a condition precedent for making an order of
discharge or of committal and, therefore, the provisions of Sub-s. (4) must be
so construed as to impose a duty on the Magistrate to examine some witnesses.
Firstly, we cannot hold that the sub-sections impose any such condition. The
argument is that the clause in subs. (6), namely, "When the evidence
referred to in subsection (4) has been taken" is a condition precedent for
making an order of discharge. The adverb "when" in the clause in the
context denotes a point of time and not a condition precedent. The clause means
nothing more than that an order of discharge can be made under subs. (6) after
the events mentioned therein have taken place.
Secondly, the two clauses necessarily refer
to the corresponding or appropriate situations under the earlier sub-sections.
The first clause will not come into play if the Magistrate has not taken any
evidence. So too, in subs. (7) also the 901 adverb "when" denotes the
time when the Magistrate can make the order of committal. If evidence has, not
been taken, that sub-section is not applicable a the Magistrate proceeds to
make an order of committal on other material referred to in the sub-section. On
the other hand', if the said two sub-sections are construed as imposing a
condition precedent for making an order of discharge or commitment, as the case
may be, the said two sub-sections will directly, come into conflict with the
provisions of sub-s. (4). When one. subsection clearly confers a discretion on
the Magistrate to take or not to take evidence, the other subsections take it
away. It is not permissible to create conflict by construction, when by an
alternative construction all the three sub-sections can be harmonized and
reconciled. If the construction suggested by learned counsel for the appellants
be adopted, it would also lead to an anomaly in that the Magistrate, though the
documents referred to in s. 173 clearly pronounce the innocence of the accused,
has to go through the pretence of examining one or more witnesses to satisfy
the provisions of the sub-section.
Reliance is placed upon s. 251A of the Code
relating to warrant cases whereunder the Magistrate is authorized, upon
consideration of all the documents referred to in s. 173 and upon making such
examination of the accused as the Magistrate thinks necessary and after giving
the prosecution and the accused an opportunity of being heard, to discharge the
accused, if he considers the charge against the accused to be groundless; but
if he is of opinion that there is ground that the accused has committed an
offence alleged against him, he shall frame in writing a charge against the
accused. By contrasting this provision with s. 207A, it is contended that if
the construction put forward by learned counsel is not accepted, the obvious
difference between the two. procedures indicated by the Legislature would be
obliterated. We cannot agree with this contention. The difference between the
two procedures is that, in a case covered by s. 207A, evidence will have to be
taken under certain 902 contingencies, whereas under s. 251A no evidence need
be taken at all. That distinguishes the different procedures under the two
sections and it is not the province of the court to add any further conditions
or limitations to those provided by the Legislature.
We are fortified in our view by a decision of
this Court in Macherla Hanumantha Rao v. The State of Andhra Pradesh (1).
There the point in controversy was whether
sa. 207 and 207A, inserted in the Code by the Amending Act XXVI of 1955,
violated the provisions of Art. 14 of the Constitution. In support of the
contention that they violated Art. 14 of the Constitution, it was sought to be
made out that the provisions of s. 207A of the Code, in comparison and contrast
with other provisions of Ch. XVIII of the Code, prescribed a less advantageous
position for the accused persons in a proceeding started under a police report
than the procedure prescribed in other cases in the succeeding provisions of
that chapter. This Court held that there was a reasonable classification to
support the difference in the procedures. Sinha J., as he then was, who spoke
for the Court, in order to meet the argument based on discrimination,
considered the scope of the new section. In doing so, the learned Judge
observed thus at p. 403:
"The magistrate then has to record the
evidence of such witnesses as figure as eye-witnesses to the occurrence, and
are produced before him. He has also the power' in the interest of justice, to
record such other evidence of the prosecution as he may think necessary, but he
is not obliged to record any evidence. Without recording any evidence but after
considering all the documents referred to in s. 1973 and after examining the
accused person and after hearing the parties, it is open to the magistrate to
discharge the accused person after recording his reasons that no ground for
committing the accused 1 for trial has been made out, unless he decides to try
the accused himself or to send him for trial by another magistrate. If, on the
other hand, he finds that the accused should be committed for trial, he is
required to frame a charge (1)  S.C.R. 396.
903 disclosing the offence with which the
accused is charged." Then the learned Judge proceeded to consider the scope
of s. 208 of the Code. After having found that there was obvious difference in
the procedure, the learned Judge came to the conclusion that "the
Legislature has provided for a clear classification between the two kinds of
proceedings at the commitment stage based upon a very relevant consideration,
namely, whether or not there has been a previous inquiry by a responsible
public servant whose duty it is to discover crime and to bring criminals to
speedy justice". It will thus be seen that the observations of the learned
Judge at p. 403 cannot be said to be obiter, as learned counsel asks us to
hold, for the construction of the provisions of s. 207A was necessary to
ascertain whether there was reasonable classification or not. Assuming that the
said observations are obiter, even then, they record the considered opinion of
five learned Judges of this Court. The view we have expressed also is
consistent with the said observations.
Our view could now be expressed in the
following propositions: (1) In a proceeding instituted on a police report, the
Magistrate is bound to take evidence of only such eye-witnesses as are actually
produced by the prosecution in court. (2) The Magistrate, if he is of opinion
that it is in the interest of justice to take evidence, whether of
eye-witnesses or others, he has a duty to do so. (3) If the Magistrate is not
of that opinion and if the prosecution has not examined any eye-witnesses, he
has jurisdiction to discharge or commit the accused to sessions on the basis of
the documents referred to in s, 173 of the Code. (4) The discretion of the
Magistrate under subs. (4) is a judicial discretion and, therefore, in
appropriate cases the order of discharge or committal, as the case may be, is
liable to be set aside by a superior court.
Before closing we would like to make some
Rarely we come across cases where the
prosecution does not examine important eye-witnesses, for such a procedure
would entail the danger of the said witnesses being tampered with by the
accused, with 904 the result that there will not be any evidence taken by the
committing Magistrate which could be used as substantive evidence under s. 288
of the Code. Even if the prosecution takes that risk, the Magistrate shall
exercise a sound judicial discretion under the second part of sub-s. (4) of s.
207A in forming the opinion whether witnesses should be examined or not, and
any perverse exercise of that discretion can always be rectified by a superior
court. Rut there may be a case where the Magistrate can make up his mind
definitely on the documents referred to in S. 173 without the aid of any oral
evidence and in that event he would be within his rights to discharge or commit
the accused, as the case may be. In this view, it is not necessary to express our
opinion whether even if the Magistrate acted illegally in committing an accused
without taking any evidence, the said illegality is cured either by s. 537 of
the Code or any other section thereof.
In the result, the appeals fail and are