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Report No. 41

Chapter XXI

Trial of warrant Cases by Magistrates

21.1. Section 251.-

After the amendments made in 1955, this Chapter practically falls into two parts. The first consisting only of section 251A11ays down the procedure for the trial of warrant cases instituted on a police report, and the second consisting of the other sections in the Chapter, namely, sections 252 to 259, lays down the procedure in other cases. This division has resulted in the repetition of some of the provisions but as the two parts are thereby made clear and sel.-contained, the scheme does not require to be changed.

21.2. Su.-section (1) to be omitted in view of new section 205B.-

Section 251A deals with the procedure to be adopted in warrant cases instituted on a police report. Under su.-section (1), the first thing that has to be done by the Magistrate is to satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if not, the Magistrate has to cause them to be so furnished. We have recommended above that the duty cast on the police by su.-section (4) of section 173 should be transferred to the Magistrate taking cognizance and suggested the necessary provision1 to be included in Chapter XXII. In view of this provision, su.-section (1) of section 251A may be revised as follows:

"(1) When, in any case instituted upon a police report, the accused appears, or is brought, before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that the provisions of section 205B have been complied with."

1. See para. 17.9 above.

21.3. Section 251A(2).-

Section 251A(2) provides that, if upon consideration of the documents received under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the parties an opportunity of being heard, the Magistrate considers the charge to be groundless, he shall discharge the accused. The reference to section 173 may be replaced by a reference to the new section 205B.

One of the suggestions1 received by us is that consideration of the documents alone cannot enable the court to form a definite opinion as to whether a prima facie case exists, and that the procedure laid down in sections 252 et seq should be adopted for cases instituted upon police report as well, subject to a modification that, after the framing of charge, there should be no further right of cros.-examination and the accused should be called upon to enter upon his defence straightway.

One advantage of the proposed procedure, it is stated, would be that if the statements of the prosecution witnesses disclosed that no offence was committed, the court should discharge the accused at an early stage. We are unable to accept this suggestion as it strikes at the very basis of the distinction between cases instituted upon police report and other cases. It is no doubt possible that in a few cases the recording of prosecution evidence at the outset before framing charge may prove to be useful. We do not, however, consider it desirable to make any such radical change as suggested.

Su.-section (2) does not require the Magistrate to record his reasons for discharging the accused. As he has to reach that conclusion after a proper consideration of the documents and hearing both sides and his order of discharge is subject to revision, it is obviously necessary that he should record his reasons in the order. The words "and record his reasons for doing so" may be added at the end of the su.-section.2

1. The suggestion has been made by the Deputy I.G.P., Delh.-F. 3(2)/5.-L.C., Pt. II, S. No. 34(d) and F. 3(2)/5.-L.C., Pt. I, S. No. 83.

2. See para 21.13 below.

21.4. Sections 251A(3) and (4).- No changes are needed in su.-sections (3) and (4) of section 251A.

21.5. Section 251A(5).-

With reference to su.-section (5), the question whether in a warrant case the pleader of the accused can be allowed to plead to the charge has been considered by the courts.1 The view generally taken is that if the accused is present, his plea must be recorded, even though his pleader is present, but if the attendance of the accused has been dispensed with, the pleader can be allowed to plead to the charge. We do not think that any specific amendment is necessary on the point.

1. Dorabshah, ILR 50 Born 250; Champa, AIR 1950 Cal 161; Kanchanbai, AIR 1959 MP 150.

21.6. Section 251A(6).-

Su.-section (6) provides that if the accused refuses to plead, or does not plead, or claims to be tried, the date for the examination of witnesses shall be fixed. It does not, however, cover the case where the accused pleads guilty, but the plea is not accepted by the court under su.-section (5). The wording of section 244(1) (as amended in 1923) leaves no such lacuna in regard to summon.-cases. It would be useful to adopt a similar wording in section 251A(6).

While su.-section (7) requires the Magistrate to take all such evidence as may be "produced" in support of the prosecution, there is no express provision in su.-section (6) or elsewhere for the issue of process to compel the attendance of prosecution witnesses. There has been some controversy in the past as to whether process can be asked for. Most High Courts1 have taken the view that it can but the lacuna has been judicially noticed.2 It may be noted that the corresponding provision for the trial of complain.-case.-section 252(2.-is more specific on this point. In Uttar Pradesh the following words have been added at the end of su.-section (6) by a local amendment3:

"and shall summon the witnesses, documents or things specified in any application made on behalf of the prosecution before the said date for summoning the same, unless for reasons to be recorded, he deems it unnecessary to summon all or any of them."

We accordingly recommend that su.-section (6) be amended to rea.-

"(6) If the Magistrate does not convict the accused under su.-section (5), he shall fix a date for the examination of witnesses; and the Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."

1. Public Prosecutor, AIR 1965 AP 162; Paban, AIR 1965 Cal 387; Phulloo, AIR 1966 All 18.

2. State v. Shib Charan, AIR 1962 Ori 157 (159) (para. 9).

3. U.P. Act 31 of 1961.

21.7. Section 251A(7).-

It has been mentioned to us that the proviso to su.-section (7) which permits the cros.-examination of any witness to be deferred until any other witness or witnesses has been examined is sometimes resorted to without sufficient justification and leads to delay, expense and inconvenience to witnesses. There is at present no such provision in regard to sessions trials1. While the underlying principle is sound, such deferments of the cros.-examination of witnesses are not intended to be a routine matter. We, however, do not think it desirable to omit this part of the proviso as suggested to us.

The proviso also enables the Magistrate to recall any witness for further cros.-examination. It has been suggested that the proviso should further provide for the summoning of a new witness whose name is revealed during the examination of other witnesses. Even apart from section 540, there is nothing to debar the production of such a witness by the prosecution so long as the prosecution evidence is not closed. No amendment is required on this point.

1. This provision is being made for Sessions trials also. See para. 23.2, revised section 276(2) below.

21.8. Section 251A(8).-

Su.-section (8) allows the accused to put in any written statement he wants. The practical necessity for this provision has been questioned but it seems to us that it does no harm and might be of some use to an accused person who (or whose pleader) feels that his examination under section 342 has not given him a full opportunity to explain all aspects of the case. The su.-section does not require to be curtailed.

21.9. Section 251A(9).-

Su.-section (9) requires the Magistrate to summon at the instance of the accused, a witness "for examination or cros.-examination", but under the proviso, the attendance of a witness is not compellable where the accused has had an opportunity of cros.-examining that witness. This is, however, subject to the counte.-exception expressed by the words "unless the Magistrate is satisfie,d that it is necessary for the purposes of justice". The Magistrate's action is, thus, hedged in by a number of seemingly contradictory provisions. Further, the word "or:' in the main paragraph seems to allow the summoning of a new witness only for cros.-examination, which may not be desirable and is perhaps not the intention of the su.-section. No change is, however, suggested on this point, since the subsection vests full discretion in the Magistrate and indicates that he should be guided by "the ends of justice".

In the proviso to su.-section (9), the words "after the charge is framed" are unnecessary, because under the preceding su.-sections of the section, no examination of a prosecution witness takes place before the charge. The reference should really be to the stage before the accused enters on hi.- defence. The words in question should be replaced by the words "before entering on his defence".

21.10. Section 251A(11).-

Su.-section (11) provides that where in any case in which a charge has been framed, the Magistrate finds the accused not guilty, he shall record an order of acquittal. A State Government has stated that the absence of witnesses on the date fixed for hearing sometimes leads to acquittal and a subsequent prosecution is barred under section 403. It is suggested that an acquittal by reason of the absence of prosecution witnesses should be no bar to the subsequent prosecution and that this difficulty can be overcome by the insertion of a provision similar to section 249.

The question whether the accused is to be acquitted if there are no prosecution witnesses was considered by us in detail. In this connection the question whether the court is bound to summon prosecution witnesses under section 540 when the prosecution does not produce the witnesses, was also discussed. In an Orissa case,1 it was stated that the case of the absence of prosecution witnesses is not provided for in the Code, and an order of acquittal was set aside in that case as an acquittal must be based on "evidence". Of course, once the prosecution has summoned the witnesses through Court, the Court must enforce their attendance.2 But the question is, can the court acquit the accused merely on the ground of want of diligence on the part of the prosecution?

In a Madras case,3 it was stated that once the Court has already framed a charge in a warrant case, "an important duty is laid on it to see that all the powers available to the Court for the examination of witnesses are exercised for a just decision of the case irrespective of the laches of the complainant. Such powers include the powers under section 540, Criminal Procedure Code to summon witnesses on the motion of the Court".

In an Andhra Pradesh case,4 the prosecution witnesses were not present, and the summonses also were not returned, on the date of hearing. The Assistant Su.-Inspector undertook the responsibility of producing the witnesses at the next hearing. None of the witnesses were however present at the next hearing, and consequently the accused were acquitted. Even so, the High Court set aside the acquittal.

We have recommended above an amendment of su.-section (6) expressly enabling the prosecution to apply 'for, and the Magistrate to issue, summonses to secure the attendance of witnesses. We think the position will be clearer when this amendment is made. In any event, the insertion of a provision like section 249 in this Chapter relating to the trial of warrant cases will mean keeping the accused in suspense for no faith of his and for an indefinite period simply because the prosecution is unable to produce its witnesses before the Court. This is not a situation which can be recommended.

1. Shibcharan, AIR 1962 Ori 157 (R.K. Das J.).

2. State of Mysore v. Narasimha, AIR 1965 Mys 167 (DB).

3. P.P. v. M. Sambangi, AIR 1965 Mad 31 (35), para. 4 (Ramakrishnan J.).

4. P.P. v. Pachtyappa, AIR 1965 AP 162 (Mohammed Mirza J.).

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