Bipat Gope Vs. State of Bihar [1962] INSC
34 (1 February 1962)
01/02/1962 HIDAYATULLAH, M.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1962 AIR 1195 1962 SCR Supl. (2)
948
CITATOR INFO:
E 1967 SC 740 (18) R 1970 SC1015 (6,7,8) R
1975 SC 146 (8)
ACT:
Criminal Procedure-Commitment proceeding-
Order of discharge by Magistrate, First Class, after trying the whole case
-Procedure under s. 207A(6), Criminal Procedure Code followed-If in excess of
jurisdiction-Code of Criminal Procedure, 1898 (Act V of 1898), s. 207A(6).
HEADNOTE:
In proceedings under s. 207A(6) of the Code
of Criminal Procedure the Magistrate discharged the accused after recording the
evidence in the case. The High Court on revision set aside the order and
directed the Magistrate to commit the accused to stand trial before the court
of session. The Magistrate examined witnesses, held spot inspection. He did not
stop to find out if there was evidence which, if believed, would establish, at
least, a prima facie case, but went on further to disbelieve that evidence, by
an elaborate and painstaking process of examination, in aid of which he brought
to bear his own appraisal of inconsistencies, improbabilities etc.
In short, he tried the whole case from one
and to the other and established his point in a fairly elaborate order.
Held, that the jurisdiction conferred by sub-
s. (6) of s. 207A, does not entitle the Magistrate to try the case on his own,
and forestall the decision of the court of session. The order of discharge
passed by him in the present case, therefore, was in excess of jurisdiction,
and must be set aside.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 153 of 1960.
Appeal by special leave from the judgment and
order dated July 28, 1960, of the Patna High Court in Criminal Revision No.
1243 of 1959.
Sarjoo Prasad, B.K. Banerjee, P.K. Chatterjee,
and A.K. Nag, for the appellants.
S.P. Varma, for the respondent.
1962. February 1.-The Judgment of the Court
was delivered by HIDAYATULLAH, J.-This is an appeal by special leave against an
order of the High Court of Patna, by which an order passed by the Magistrate,
First Class, discharging the appellants under s. 207A(6) of the Code of
Criminal Procedure, was set aside, and the Magistrate was directed to commit
the appellants to the Court of Session to stand their trial under ss. 307/34
and 148 of the Indian Penal Code. The only question that is argued is whether
the High Court was justified in setting aside the order of the Magistrate,
which, it is claimed was passed in the proper exercise of the jurisdiction
conferred by s. 207A(6) of the Code.
The facts of the case, in brief, are as
follows: On March 26, 1959, at about 10-15 p.m.
one Rajbahadur Rai alias Chhote Rai, was
alleged to have been assaulted by the appellants at a place where Chhote Rai
was sitting, at the pan shop of one Raghunath Prasad. The appellants are said
to have arrived there in a private car and a tandem, and after assaulting
Chhote Rai, to have gone away in these two vehicles. After investigation, the
appellants were prosecuted under ss. 307/34 and 148 of the Indian Penal code,
with the result already mentioned.
Before the order of discharge was made, the
Magistrate heard the evidence of nine witnesses 950 including Chhote Rai and
Raghunath, who had given the first information report. The witnesses also
included two other alleged eye-witnesses, Bhushan Singh (P.W. 2), and
Sheonandan Yadev (P.W. 6). The Magistrate, after recording the evidence and
holding a spot inspection and hearing the parties, discharged the appellants as
he was of opinion (in his own words)- "in view of the aforesaid
discrepant, unreliable and incredible and highly interested prosecution
evidence, no Court can consider it worthwhile prima facie even for a trial. In
a case of this nature, it is the legal obligation of a Magistrate to discharge
the accused persons, as discussed above." The Magistrate reached this
conclusion on a fairly long appraisal of the evidence in the case, discussing
it from the angle of credibility of witnesses, their antecedents, the
probabilities of the case, the nature of the alleged weapon, the medical
evidence and so on. In short, it will not be wrong to say that he tried the
case, instead of finding out whether there was no ground for sending up the
appellants to stand their trial before the Court of Session. The High Court, in
the order under appeal, held that the Magistrate went beyond the powers
conferred upon him of enquiring into the case with a view to committing it to
the court of Session.
Section 207A is a new section, which has been
introduced by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of
1955). It lays down the procedure which the Magistrates must follow in an
enquiry in proceedings started on a police report, preparatory to commitment of
cases to the Court of Session. Sub-sections (1), (2) and (3) deal with the
fixing of dates, issuing of processes and ensuring that copies of the documents
referred to is s. 173 of the Code of Criminal 951 Procedure have been furnished
to the accused. Sub- section (4) then enjoins upon the Magistrate that he shall
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 alleged offence, and
also enables him to take the evidence of any one or more of the other witnesses
for the prosecution as he considers, in his opinion, necessary. The sub-section
divides the witnesses into two categories, viz., witnesses to the actual
commission of the offence and other witnesses like formal witnesses, or those
who cannot depose to the actual commission of the offence. Of the first
category, those that the prosecution produces, must be examined; but the other
witnesses may be examined, only if the Magistrate considers it necessary. It seems,
prima facie, that the prosecution cannot insist on their examination. An
accuses is given by subs. (5) a right to cross-examine the witnesses, who are
examined, and the prosecution can also reexamine them. Then comes sub-s (6),
which reads as follows:- "When the evidence referred to in subsection (4)
has been taken and the Magistrate has considered all the documents referred to
in sections 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 this accused person for trial, record his reasons and
discharge him, unless it appears to the Magistrate that such person should be
tried before himself or some other Magistrate, in which case he shall proceed
accordingly." This sub-section, it is contended, gives the 952 Magistrate
the option not to commit an accused but to discharge him, if he is of opinion,
for reasons to be recorded, that the evidence discloses no grounds for
committing the accused person, unless it appears to him that the person should
be tried before himself or some other Magistrate. The Magistrate, in this case,
thought that the power conferred upon him by this sub-section enabled him to
examine the evidence thoroughly, and if it did not satisfy him, to discharge
the accused. This view of the Magistrate was not accepted by the High Court.
Mr. Sarjoo Prasad for the appellants,
contends, on the basis of the ruling of this Court in Ramgopal Ganpatrai Ruia
v. The State of Bombay (1), that the course followed by the Magistrate in
determining whether there was credible evidence or not was the right course,
and points to certain passages in the judgment in the above case as supporting
his proposition. The cited case interpreted s. 209 of the Code of Criminal
Procedure, which, after amendment of the Code by Act 26 of 1955, deals with
proceedings instituted otherwise than on a police report, and under which the
Magistrate can. discharge an accused if he finds that there are not sufficient
grounds" for committing the accused person for trial. The words of the two
sections are not the same, and it is possible to say that the force of the two
sections is also not the same, and that s. 209 gives a power to enter upon the
merits of a case in a manner which s. 207A does not warrant. Whether the change
of the language is deliberate or due to the fact that different draftsmen
drafted the two sections, the test for discharging the accused must, in a large
way. be the same under both the sections, and it is hardly necessary to decide
the full of ambit of s. 207A and contrast it with that of s. 209. If there is
any indication in the language, it is altogether on the side that the
Magistrate must find a stronger case for discharging an accused under s. 207A
than under 953 s. 209. But, whatever the meaning of the two expressions,
neither of them invests the Magistrate with the jurisdiction to decide the
case, as if the sessions trial was before him. To this extent, Mr. Sarjoo
Prasad fairly concedes, s. 207A (6) cannot be carried. Put in other words, the
section can only mean that if there is a prima facia case triable by the Court
of Session, the Magistrate must commit the accused to the Court of session to
stand his trial. What those cases would be, which would satisfy the test, may
not generally be stated here, because, in our opinion, this case is far from
the borderline, where only difficulties are likely to be met.
In this case, we are clear, on a reading of
the reasons recorded by the Magistrate, that he did not stop to find out that
there was evidence which, if believed, would establish, at least, a prima facie
case but went on further to disbelieve that evidence by an elaborate and
painstaking process of examination, in aid of which he brought to bear his own
appraisal of inconsistencies, improbabilities etc. In short, he tried the whole
case from one end to the other and established his point, as has been said
already, in a fairly elaborate order. In this process, he disbelieved the
injured person, other eye-witnesses, contrasted the oral testimony of how the
offence took place with the medical evidence and his own conclusions drawn from
an inspection of the site and other matters, to numerous to detail here.
In our opinion, whatever the jurisdiction
conferred by sub-s.(6) of s. 207A, it does not entitle a Magistrate to try the
case on his own, and forestall the decision of the Court of Session, and this
is what the Magistrate, is fact, did here. We, therefore, agree that the order
of discharge passed by him was in excess of his jurisdiction, and it is 954
hardly necessary in this case to show how far a Magistrate can go to find that
there is no ground for committing the accused to stand his trial in a Court of
Session. We see no reason to interfere with the order of the High Court, and
dismiss the appeal It is a matter of regret that much delay has taken place in
this case, and it may harm the case or the one side or the other. We hope that
now the case will be heard from day to day, and disposed of, as expeditiously
as possible. We further make it clear to the Court or courts dealing with this case
that any expression of opinion on the merits of the case whether by us or by
the High court or the Magistrate, who first heard it, or else where, in this
order or the orders preceding this, is to be completely ignored and the case
shall be decided without being influenced in any way by such expression of
opinion.
Appeal dismissed.
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