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Report No. 41

21.11. Section 251A(12) and (13).- No changes are needed in su.-sections (12) and (13).

21.12. Section 252.-

In section 252(1) we propose to substitute for the words "complainant (if any)", the word "prosecution", and to omit the proviso which will be rendered unnecessary by this amendment.

Section 252(2) appears to throw on the Magistrate the responsibility of ascertaining the names of any persons likely to be acquainted with the case and to summon such of them as he considers necessary. This would appear to be both unnecessary and undesirable when the case has been instituted on complaint whether by a private individual or by a public servant. In those cases the complainant would have already furnished a list of prosecution witnesses under section 204(1A). Even in the rare cases where cognizance was taken under section 190(1)(c) there would be somebody prosecuting the case who should be in a position to give a list of witnesses. Su.-section (2) in its present form does not appear to be necessary, and in its place we may have a su.-section as follows:

"(2) 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."

This will bring section 252(2) into line with section 251A(6) as proposed to be amended.1

1. See para. 21.6 above.

21.13. Section 253.-

We propose to make two amendments in section 253(1). In view of the comprehensive provision in section 342 relating to examination of the accused the words "and making such examination (if any) of the accused as the Magistrate thinks necessary" are practically superfluous and may be omitted. When the Magistrate finds that no prima facie case has been made out against the accused there will hardly be anything to examine him about! Secondly, it is desirable to make it clear in su.-section (1), as already done in su.-section (2), that the Magistrate should record his reasons for discharging the accused. An order of discharge under either su.-section is a judicial order and subject to revision.2

Su.-section (1) may be revised as follows.-

"(1) If, upon taking all the evidence referred to in section 252. . . . the Magistrate considers, for reason to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

1. L. Narayan v. P. Chettareddi, AIR 1961 AP 117 (119) (Reviews cases).

21.14. Section 254.-

In section 254, also the reference to examination of the accused is unnecessary and may be omitted. The opening words of the section may be amended to read "If when such evidence has been taken or at any previous stage of the case, etc."

21.15. Section 255.-

In section 255(1), the words "whether he is guilty", may be replaced by the words "whether he pleads guilty" as being more appropriate.

The question whether, in section 255(2), after the words "record the plea", the words "as far as possible in his own words" should be added as in section 243 was considered by us. As section 243 relates to summons cases where there is no charge, the direction to record the admission of the accused as far as possible in his own words has a meaning and a purpose. The situation under section 255 is different. The plea is with reference to a detailed charge which has to be formulated precisely and must give full particulars of the offence. It is unnecessary to provide in this context that the plea must be recorded in the accused person's own words.

21.15a. Section 255A.-

Section 255A, which is analogous to section 310 applying to sessions trials, was inserted by the Amending Act of 1923. The Lowndes Committee1 which examined the Amendment Bill of 1914 recommended it for these reasons:

"We think that this addition is necessary after section 255 to provide for a case where previous conviction is also charged. Definite provision is made for this in the case of trials before a Court of Session (see section 310), but it does not seem to have been provided for by the Code in the case of a Magistrate's trial."

The Select Committee which examined this clause observed as follows2:

"It was suggested to us that the new section 255A is unnecessary, on the ground that though a procedure for the proof of previous convictions is necessary in a Sessions Court to prevent the Jury or the Assessors from being prejudiced by anything that they may hear as to the accused's previous record, yet in warrant cases the same considerations do not apply. On the whole, however, we think the new section may serve a useful purpose, and we have retained it."

Although in a Patna case,3 it was observed by a Judge that "no advantage is to be gained by this procedure", we do not recommend the omission of this section. Postponement of the inquiry into the charge of previous conviction does not cause any inconvenience to the Magistrate or delay in the proceedings. Occasionally even the trained mind of a Magistrate may be affected by the knowledge that the accused has been previously convicted.4 If this charge also is put to the accused from the beginning, he may get the feeling that the Magistrate is perhaps prejudiced by the knowledge of that previous conviction which it is better to avoid.

1. Report of the Lowndes Committee Appendix B, under clause 56A.

2. Report of the Select Committee, (1922), under clause 68.

3. Ishwar Singh v. Shama Dusadh, AIR 1937 Pat 131.

4. Cf. Beaumont C.J. in Emp. v. Ahmad Ebrahim, AIR 1935 Born 39.

21.16. Section 256.-

As proposed above in regard to section 251A(6), a formal amendment is required in the opening words of section 256(1). For the words "If the accused refuses to plead, or does not plead, or claims to be tried", the words "If the accused is not convicted under su.-section(2) of section 255" may be substituted. No other amendment is required in section 256.

21.17. Section 257.-

Under section 257(2) the Magistrate may, before summoning any witness at the instance of the accused, require a deposit to be made of the reasonable expenses of such witness. A suggestion has been made that this su.-section should be deleted. While in the majority of the cases, the Magistrate may not think it necessary to exercise the power under this su.-section, it does not appear to be necessary or desirable to take away the power. Usually, the Government bears the expenses of defence witnesses1, but not in all cases2. The matter is dealt with by rules.3

There seems to be some controversy as to the course to be adopted by the Magistrate when some prosecution witnesses are absent and cannot, therefore, be cros.-examined after charge. One view is, that the accused should be acquitted and that the evidence previously given by those prosecution witnesses should be "expunged'4. Another view is that the court should r.-summon the witnesses under section 257.5

The correct position seems to be that if the parties concerned have taken the necessary steps in accordance with law for summoning of the witnesses, or if the accused wishes to exercise his right of further cros.-examination in accordance with law, the court must enforce the attendance of such witnesses, and cannot acquit the accused merely on the ground of the complainant's or witnesses' absence.6 The rulings apparently to the contrary are distinguishable on facts..-8

1. See Sayed Habib v. Emp., AIR 1929 Lah 23 (24) (Shadi Lal C.J.).

2. Ganpat v. Crown, AIR 1923 Lah 420 (Moti Sagar J.); Abdul Rehman, AIR 1952 Ajmer 45.

3. See fit Singh v. State, AIR 1963 Punj 143.

4. Sadek Mohd Ahmed Hassan v. Jyotish Chander, AIR 1948 Cal 88 (Roxburgh and Chunder JJ.).

5. Rampal v. Mangala, AIR 1952 Raj 601.

6. Repin v. Paban, AIR 1951 Cal 418.

7. Emp. v. Nazir, AIR 1930 All 795 (796) (Boys J.).

8. Gobinda v. Rahl Prasad, AIR 1953 Ori 152.

21.19. Section 258.- Section 258 needs no change.

21.20. Section 259.-

A suggestion1 has been made that the cases in which the Magistrate may discharge the accused because of the complainant's absence should not be limited to no.-cognizable offences and compoundable offences. This question was also considered in the past. The Lowndes Committee2 had suggested deletion of the words "and the offence may be lawfully compounded" as suggested by the Bengal Government.

The Committee's reasoning was, that no useful result would follow from attempting (in ordinary cases) to force the complainant to go on against his will. But the Select Committee3 which considered the Amendment Bill of 1922 thought that this would be going too far and that it would be "sufficient to extend the application of the section to cases of no.-cognizable offences." The words "or is not a cognizable offence" were accordingly added in the section.

As to the principle underlying the section it was observed in a Rangoon case4.-

"The principle underlying the provisions dealing with the trial of no.-compoundable or cognizable warrant cases is that, whether instituted on complaint or otherwise, the final responsibility for the conduct of such cases rests with the State and that where there is reasonable ground for believing that such an offence has been committed, once the machinery of the law has been set in motion, the right of arresting its progress rests with the State alone."

Agreeing with this view, we do not recommend any widening of the scope of section 259.

The question whether the requirement of compoundability and the requirement of no.-cognizability are alternative or cumulative has been discussed in one case.5 The language of the section is clear on this point, and we do not, therefore, consider any such amendment necessary as was hinted at in that case.

It has been suggested.-7 that a proviso should be added in section 259 to the effect that the Magistrate shall not discharge the accused if the complainant is a public servant acting or purporting to act in the discharge of his official duty. We do not think any such provision is necessary. Discharge of the accused under this section is a matter within the discretion of the court, and the fact that the complaint was made by the complainant in the discharge of his official duty will necessarily be taken into account by the court before passing an order under this sections.

1. F. 3(2)/5.-L.C., Pt. III, S. No. 52, pp. 26.-270 of the Correspondence (Suggestion of the Chief Presidency Magistrate, Madras).

2. Report of the Lowndes Committee, Appendix B, clause 59.

3. Report of the Select Committee, (1922) under clause 71.

4. Maung Thin, ILR 5 Rang 136: AIR 1927 Rang 174 (175) (Doyle J.).

5. Shankar Das v. Mahu Ram, AIR 1963 HP 32 (33), para. 4.

3. F. 3(2)/5.-L.C., Pt. I, S. No. 61.

6. See also F. 3(2)/5.-L.C., Pt. II, S. Nos. 34(c) and 34. (Suggestion of a District Magistrate, endorsed by the Administration of the Union Territory).

7. See also discussion relating to section 247.

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