Report No. 14
37. Committal Proceedings
1. Who may commit.-
Offences triable by a Court of Session are indicated in column 8 of Schedule II to the Code of Criminal Procedure. All Presidency Magistrates, District Magistrates, Magistrates of the First Class, Sub-Divisional Magistrates and Magistrates other than Third Class Magistrates empowered to do so, may commit a person for trial. A preliminary inquiry is conducted into these cases by such Magistrates and it usually takes the following shape.
2. Committal Proceedings in Police Report cases (Procedure).-
The difference between cases instituted on a police report and otherwise than on a police report which has been noticed in the trial of warrant cases is, generally speaking, maintained in these preliminary inquiries. In cases instituted on police report the Magistrate on receipt of the report fixes a date for the inquiry not later than fourteen days from the date of the receipt of the report unless for reasons to be recorded, he thinks that a later date should be fixed. Thereafter, processes to compel the attendance of witnesses or for the production of documents are, if necessary, issued. On the date so fixed, the Magistrate satisfied himself that the documents specified in section 173 of the Code have been furnished to the accused.
If that has not been done, he takes steps to see that they are so furnished. The Code provides, that 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". It is, however, open to him to examine other witnesses for the prosecution if he thinks it necessary to do so in the interests of justice. The accused is at liberty to cross-examine the witnesses examined by the prosecution.
After the witnesses for the prosecution have been examined and the documents considered, the Magistrate may, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. If on a consideration of the prosecution evidence, the documents and the examination of the accused and after hearing the prosecution and the accused, the Magistrate finds "no grounds for committing the accused" to the Court of Session for trial, he records his reasons therefor and discharges the accused. If, on the other hand, the Magistrate feels that the accused "should be committed for trial", he frames a charge which is read and explained to the accused.
The accused is also furnished with a copy of the charge free of cost. The accused is then required to furnish a list of persons whom he wishes to examine on his behalf at the trial. The Magistrate thereafter makes an order committing the accused to take his trial before the Court of Session or the High Court, as the case may be. The Magistrate then summons the defence witnesses to appear before the trial court. The prosecution witnesses appearing before the Magistrate are bound over to appear when called upon by the Court of Session or the High Court.
3. Private complaint cases (Procedure).-
In cases instituted otherwise then on a police report, the Magistrate proceeds to hear the complainant and all his witnesses in the presence of the accused who is permitted to cross-examine those witnesses. It is open to the accused to call witnesses on his behalf. The accused is then examined. If the Magistrate finds that "there are not sufficient grounds for committing the accused person for trial", he discharges him. It is open to the Magistrate to discharge the accused, "at any previous stage of the case" if, "for reasons to be recorded by such Magistrate, he considers the charge to be groundless".
If, on the other hand, the Magistrate "is satisfied that there are sufficient grounds for committing the accused for trial", he frames a charge which is explained to the accused. A list of witnesses is then furnished by the accused. It is open to the Magistrate to summon and examine any of these witnesses. The Magistrate then proceeds to make an order of committal unless after hearing the witnesses for the defence (examined by him) he is satisfied that there are not sufficient grounds for committing him, in which event he cancels the charge and discharges the accused.
4. Examination of witnesses not obligatory.-
The provision in subsection (4) of section 207A of the Code of Criminal Procedure that "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", has caused considerable difficulty. The view has been taken by some High Courts1 that the section gives a discretion to the prosecution as to which of the witnesses to the actual commission of the offence it will produce before the Magistrate and that the Magistrate is not bound to examine even eyewitnesses to the commission of the crime, if none is produced by the prosecution though in his discretion he may do so.
In such cases, the Magistrate, would have to reach a decision whether he should commit the accused or discharge him on the basis of the documents placed before him. Normally, the prosecution would take care to see that the documents do indicate prima facie the commission of an offence so that an order of committal is made by the Magistrate. On this interpretation it would be open to the Magistrate to commit a person even though not a single witness to the crime has been produced and he may do so even in cases where the documents produced show that there are such witnesses.
1. Thirumal Thevar (in re:), AIR 1958 Mad 135.
5. Difficulties of such an interpretation.-
Such an interpretation of this provision will, it is felt, result in practically every accused person being committed. All that the Magistrate will be required to do is to see that the accused person has been furnished with the specified documents, and that these documents disclose the commission of an offence. It would also seem that on such an interpretation, some of the following sub-sections will not have much meaning. If the prosecution do not choose to examine any witnesses, it is difficult to see how the Magistrate can discharge the duty laid on him by the section. It is true that the Magistrate sitting in the committal court is not expected to weigh the evidence in order to decide whether such evidence is sufficient to ensure a conviction by the trial court.
However, it is his duty under the section to form an opinion whether "such evidence and documents disclose no grounds for committing the accused person for trial". It further becomes his duty, if he is of such opinion, to discharge the accused. It is apparent that if no evidence is called by the prosecution it will be impossible for the Magistrate to form an opinion on the "evidence" among other things which he is required to do by sub-section (6). Similarly, sub-section (7) also speaks of the framing of the charge following
"upon such evidence being taken, such documents being considered". In the absence of any evidence being led by the prosecution it would seem difficult, if not impossible, for the Magistrate to comply with the requirements of subsection (7) also. It appears to us that it could not have been the intention of the amended section that such a result should be reached and that the interpretation put on the sub-section (4) of section 207A is unsound.
The interpretation seems to rest on reading the words "as may be produced" as meaning witnesses who are physically brought before the Magistrate by the prosecution. An examination of the preceding provisions of the Code of Criminal Procedure will show that the words cannot bear that meaning. Under section 170(2) of the Code, when a case is sent to a Magistrate upon an investigation under Chapter XIV, it is the duty of the police officer to require the complainant and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence in the matter.
Section 171 inter alia requires that no witness on his way to a court shall be required to accompany a police officer. It is obvious, therefore, that it is not possible for a police officer to insist upon a witness accompanying him to the Court. Normally, it will not be possible for him to intimate a definite date for the appearance of the witnesses in the Magistrate's Court for giving evidence because as we have noticed, the fixing of the date for the inquiry is a matter for the Magistrate.
Sub-section (2) of section 207A which enables a police officer to apply to the Magistrate inter alia for the issue of a process to compel the attendance of any witness clearly indicates that in an inquiry under section 207A it is not the police officer who produces witnesses but that the witnesses are to be brought before the Magistrate by the issue of a process. Having regard to these provisions, it would appear that the expression in sub-section (4) of section 207A that "such persons, if any, as may be produced by the prosecution", has reference to the witnesses to the actual commission of the offence who have been summoned under sub-section (3) of section 207A.
5A. views of the Calcutta High Court.-
The Calcutta High Court1 has also held that sub-section (4) does not impose a duty on the prosecution to produce before the committing Magistrate all or any of their witnesses to the actual commission of the offence alleged. It has, however, held that under the later part of the same sub-section the Magistrate has, even in cases where the prosecution has not called any witnesses, to form an opinion whether it is necessary in the interests of justice to take the evidence of any prosecution witnesses, whether they be witnesses to the actual commission of the offence or not. The Court observed that if the Magistrate did not take this course he will be acting illegally as he will be failing to exercise the power which he is required by law to exercise.
1. Manickchand Choudhury v. State, 62 CWN 94.
6. Another view (Examination of witnesses obligatory).-
Yet another view1 taken by some of the High Courts is that the word "may" in sub-section (4) must, having regard to the context of the sub-section, be understood as meaning "shall" and that the prosecution is bound to produce before the Magistrate all witnesses to the actual commission of the offence alleged.
1. State v. Govindan Thampe, AIR 195Z Trava-Co.; Kunjan Raghavan (in re:), AIR 1957 Ker 32; M. Pavalappa v. State of Mysore, AIR 1957 Mys 61; State v. Ramratan Bhudhan, AIR 1957 MB 7.
7. Recording of evidence to be obligatory-Clarification suggested.-
We are clearly of the opinion that the language of section 207A vests certain judicial functions in the Magistrate in the exercise of which he has to form a judgment and exercise a discretion, which functions he will be unable to exercise unless the prosecution has led before him evidence of the witnesses to the actual commission of the offence, where such witnesses are stated to exist. These difficulties of interpretation seem to have led the Madras High Court to issue administrative instructions to all Committing Magistrates to examine all important prosecution witnesses. We accordingly recommend that the language of sub-section (4) should be altered so as to make it clear that it is obligatory on the prosecution to examine before the inquiring Magistrate all witnesses or at any rate all important witnesses to the actual commission of the offence.
8. Advantages of this course.-
Apart from the considerations mentioned above, the recording of such evidence by the inquiring Magistrate would seem to be necessary from another point of view. It is essential that the evidence of important witnesses should be recorded at the earliest point of time after the commission of the offence. So long as we retain the committal stage, the inquiry before the Magistrate would afford the earliest opportunity for recording such evidence. The importance of this early record arises from the practice of witnesses going back upon the statements made by them to the police earlier.
A statement recorded by the police under section 161 is not part of the evidence; nor can a statement recorded under section 164 be used as evidence except in certain circumstances. The evidence recorded before the committing Magistrate can, however, be used as evidence at the trial under section 288 of the Code of Criminal Procedure under the conditions therein mentioned. If a witness to the actual commission of the offence alleged is not examined in the committal court by the prosecution, it may be that when he is first examined in the sessions court, he may resile from his statement made to the police.
The prosecution would thus be denied the use of valuable evidence and the prosecution may fail. The accused will also have the advantage of knowing the case against him. It is thus necessary in the interests of justice that a provision should be made, so long as we retain committal proceedings, making it obligatory on the prosecution to lead before the inquiring Magistrate the evidence of all or at any rate the important witnesses to the commission of the alleged offence.
9. Abolition of the committal procedure.-
The purpose of the recent enactment of section 207A for the purpose of providing a shortened form of committal proceedings in Police report cases was, as is well-known, intended to lead to a speedier disposal of criminal cases and avoid as far as possible a duplication in the taking of evidence by the committing Magistrate and the sessions court. Since this amendment of the Code, a view has been put forward suggesting that the time has now arrived for doing away with committal proceedings altogether in these cases.
The main argument in support of this view is that the accused has, by reason of the documents furnished to him under the provisions of section 207A, full notice of what is alleged against him, that no useful purpose is served by the attenuated committal proceedings now in vogue and that the case should go straight to the sessions court which will finally deal with the matter.
10. Divided views.-
The views expressed to us in reply to our Questionnaire and the oral evidence before us were sharply divided on this question. One view supported the abolition of the committal stage altogether so that the sessions court may be seized straightaway of these police report cases. On the other hand a large section of opinion emphatically supported a reversion to the old full committal proceeding. There was little support for the continuation of the present shortened committal procedure.
There were complaints by certain police officials as to the difficulty of complying with the present requirement of furnishing copies or extracts of documents to the accused persons particularly in complicated cases, where numerous documents and accounts were being relief on. On the other hand, a number of lawyers who had appeared for the accused in the new committal proceedings complained of the hardly legible copies of the documents which were being furnished by the police.