iminal Appeal No 88 of 1962
Appeal by special leave from the judgment and order dated November 30 1961 of the Calcutta High Court in Cr R No 1117 of 1961
D R Prem R N Sachthey and R H Dhebar for the appellant
A section R Chari Ravinder Narain J B Dadachanji and 0
C Mathur for the respondent
September 11
The judgment of the Court was delivered by GAJENDRAGADKAR J
The principal point which the appellant the State of West Bengal has raised for our decision in the present appeal is whether the provisions of section 540 of the Code of Criminal Procedure apply to a case tried by the Magistrate under section 207A of the Code
That question arises in this way
On the 7th July 1960 a charge sheet was submitted under section 173 of the Code by Inspector Bhuromal of the Special Police Establishment New Delhi in the Court of the Chief Presidency Magistrate Calcutta against Hari Das Mundhra accused No 1 and the respondent Tulsidas Mundhra accused No 2 under section 12OB409 and sections 409 and 477 A of the Indian Penal Code
On the 5th August 1960 both the accused persons appeared before the learned Chief Presidency Magistrate and furnished bail
Thereafter the case was transferred to M Roy the Presidency Magistrate 5th Court for further proceedings
On the 10th October 1960 copies of the documents were furnished to the accused persons and since the record was voluminous the hearing of the case was adjourned to the 7th December 1960
On the 1st March 1961 parties were heard and in view of the nature of the offences and the amounts involved 3 the Magistrate took the view that the proper course to follow would be to adopt the commitment proceedings as laid down in section 207A of the Code
Subsequently the procedure prescribed by the said section was followed
It appears that accused No 1 who had in the meanwhile been convicted in another case was undergoing a sentence of imprisonment in the District jail at Kanpur and so he could not be produced before the Magistrate until the 7th July 1961
That is why the case had to be adjourned on some occasions and effective hearings did not make a material progress until the 7th July
On the 6th July 1961 the respondent filed a petition before the Magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent
The respondent disputed this allegation Pan prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was not his
On the 7th July 1961 when the case was taken up for hearing before the Magistrate he first considered the application made by the respondent to call defence witnesses and on the merits he rejected the said application
Then he proceeded to make an order of commitment
In rejecting the application of the respondent for examining defence witnesses the Magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his Court and so that was one reason why he thought that an unconsciousably delayed petition which had been made solely with the object of gaining time should not be granted
He also held that the application was misconceived
It was urged before the Magistrate that he could examine the said witnesses and in support of this argument reliance was placed on a 4 decision of the Bombay High Court in the case of Arunachalam Swami vs State of Bombay 1
The learned Magistrate took the view that the said decision was distinguishable on facts
Whilst the learned Magistrate was delivering this order an application was made before him that the respondent wanted to move the higher Court for a transfer of the case and though the learned Magistrate felt that this application also was intended merely to prolong the proceedings in his Court he adjourned the case because under section 5268 it was obligatory on him to do so
That is why he adjourned the hearing of the case to the 20th July 1961 for passing the remaining portion of the final order in case the respondent failed to obtain from the higher Court  the necessary order of transfer
This order was challenged by the respondent by moving the Calcutta High Court in its criminal revisional jurisdiction
The High Court took the view that section 540 applied to cases tried under section 207A and it directed the Magistrate to consider afresh whether he should summon and examine the defence witnesses mentioned by the respondent in his application of the 6th July 61 under the provisions of the said section
Incidentally the High Court also observed that the accused persons had not been examined under s362 and so it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under section 342 This observation was made even though the High Court did not think it necessary to decide the general question whether in a commitment enquiry examination of the accused under s342 is compulsory or not
In the result the order passed by the Magistrate on the 7th July 1961 was set aside and the matter was sent back to his Court for disposal in accordance with law
It is against this order that the appellant has come to this Court by special leave and on its behalf 1 A 1
R 5 Mr Prem has contended that the High Court was in  error in holding that section 540 of the Code applied to proceedings under section 207A
In the alternative he has argued that the Magistrate had himself considered the question as to whether the witnesses should be examined in the light of his powers under section 540 and so even if his first point failed he was entitled to contend that the High Court was not justified in sending the case back to the Magistrate
There is no point he argues in asking the Magistrate to consider the question once again
There is no doubt that the new provisions under s207A have been introduced for the purpose of expediting the commitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the Court of Session or High Court
Section 206 inter alia confers powers on the Magistrates specified in the section to commit any person for trial to the Court of Session or High Court for any offence triable by such Court
Under s207 it is provided that in regard to a case which is triable exclusively by a Court of Session or High Court or which in the opinion of the Magistrate ought to be tried by such Court the Magistrate shall  a in any proceeding instituted on a Police report follow the procedure specified in s207A and b in any other proceeding follow the procedure specified in the other provisions of this Chapter
Thus section 207A is applicable to proceedings in respect of offences which are exclusively triable by the Court of Session or High Court or which in the opinion of the Magistrate ought to be tried by such Court
This section consists of 16 subsections which in a sense constitute a self contained Code which has to be followed in dealing with cases under the said section
Sub section 2 authorises the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing
Under sub section 3 the Magistrate has to satisfy himself that 6 the documents referred to in section 173 have been furnished to the accused and if they are not so furnished he has to cause the same to be so furnished
Sub section 4 then deals with the stage where the Magistrate proceeds to take evidence of such persons if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged and it adds that 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
By sub section 5 the accused is given liberty to cross examine the witnesses examined under sub section 4
Sub section 6 then lays down that if evidence is recorded under sub section 4 and the Magistrate has considered all the documents referred to in s173 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 he 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 he thinks that such person should be tried before himself or some other Magistrate in which case he shall proceed accordingly
Sub section 7 deals with a case where on considering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be 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 charged
Sub section 8 then lays down that as soon as the charge has been framed it shall be read and explained to the accused and a copy thereof given to him free of cost
Under sub section 9 the accused shall be required at once to give in orally or in writing a list of the persons if any whom he wishes to be summoned to give evidence on 7 his trial
There is a proviso to this sub section which entitles the Magistrate in his discretion to allow such list to be given later but we are not concerned with that proviso in the present appeal
The rest of the clauses are not relevant for our purpose
It will thus be seen that before the Magistrate decides either to discharge the accused person or to direct that he should he tried by himself or by any other Magistrate or to commit him to the Court of Session or High Court he has to consider the evidence recorded before him under sub section 4 and the documents referred to in section 173
It is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him to explain circumstances appearing against him in the evidence
He has of course to hear the prosecution and the accused person before making the order
The scheme of section 207A thus does not appear to provide for a defence witness to be examined before an order is passed either under sub section 6 or sub section7 and that may be because it was thought by the Legislature that in dealing with criminal cases instituted on a police report it may ordinarily not be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so no provision in that behalf has been made
Even the examination of the accused person has been left to the discretion of the Magistrate under sub section 6 Sub section 7 also shows that the examination of the accused person is in the discretion of the Magistrate
As we have already seen it is after the charge is framed and read and explained to the accused person under sections 8 that the stage is reached for him to give in a list of person whom he wants to examine under ss9
This position shows a striking contrast to the relevant provisions of section 208
Section 208 deals with cases where proceedings are instituted otherwise than on a police report and it provides that when the accused 8 person is brought before 
the Magistrate he shall proceed to hear the complainant if any and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate
Section 208 3 provides inter alia that if the accused applies to the Magistrate to issue 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
In other words in regard to the proceedings tried under section 208 an accused person is entitled to lead evidence in defence and the Magistrate is bound to allow such evidence to be led except of course where he comes to the conclusion that such evidence need not be led in which case he has to record his reasons for
coming to that conclusion
When we consider the relevant provisions of section 207A and contrast them with the corresponding provisions of section 208 it becomes clear that an accused person has no right to lead evidence in defence in proceedings governed by section 207A whereas he has a right to call for such evidence in proceedings governed by section 208
This position however does not affect the question as to whether section 540 applies even to the proceedings governed by section 207A Section 540 gives power to the Court to summon material witness or examine a per son in attendance though not summoned as a witness or recall and re examine any person already examined and the section specifically provides that the Court shall summon and examine or recall and re examine any such person if his evidence appears to it essential to the just decision of the case
It would be noticed that this section confers on criminal courts very wide powers
It is no doubt for the court to consider whether its power under this section should be exercised or not
But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to 9 the just decision of the case it is its duty to take such evidence
The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case
That being so it is difficult to appreciate the argument that the scheme of section 207A excludes the application of section 540 to the proceedings governed by the former section
It is true that s207A does not give an accused person a right to lead evidence in defence and so he would not be entitled to make an application in that behalf but that is very different from saying that in proceedings under section 207A the Magistrate has no jurisdiction to examine a witness by exercising his powers under section 540
The denial to the accused person of the right to lead evidence in defence has no material bearing on the question as to whether the Magistrate can exercise his powers under section 540
We do not think that the scheme of the special provisions contained in section 207A legitimately leads to the inference that the applicability of section 540 is thereby excluded
Sometimes if a statute contains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular topic or case as well as others the particular or the special provision excludes the application of the general provision in respect of the topic or case covered by the former
That however is not the position in the present case because section 207A suggests by necessary implication for the
exclusion of the accused person s right to lead evidence whereas section 540 does not refer to the right of the accused person or the prosecution to lead any evidence but deals with the court s power to examine witnesses as court witnesses in the interest of justice
Section 540 in terms applies at any stage of any enquiry trial or other proceeding under this Code
This section is wide enough to include a proceeding under section 207A and so it would be unreasonable to contend that the scheme of s207A makes section 540 inapplicable to the proceedings 10 governed by section 207A
The power of the court under section 540 can be exercised as much in regard to cases governed by section 207A as in regard to other proceedings governed by the other relevant provisions of the Code
Therefore we are satisfied that Mr Prem is not justified in arguing that the Magistrate had no jurisdiction to examine witnesses as court witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case
The alternative argument urged by Mr Prem still remains to be considered
The High Court seems to have thought that in rejecting the application of the respondent for examining defence witnesses the Magistrate took the view that he had no power to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of section 207 A
That appears to be the sole basis of the decision of the High Court in reversing the order of the Magistrate and sending the proceedings back to his court
In our opinion the High Court was in error in assuming that the Magistrate had not considered the question on the basis of the applicability of section 540
In fact as we have already pointed out when the Magistrate s attention was drawn to the decision of the Bombay High Court in the case of Arunachalam Swami1 he observed that the case was distin guishable on facts he did not say that the case was irrelevant because s540 was inapplicable to the proceedings before him
If he had taken the view that s540 did not apply at all the Magistrate would obviously have said that the Bombay decision had no relevance
The reason given by the Magistrate that the case was distinguishable on facts postulates that s540 was applicable but in his opinion the particular decision was of no assistance to the respon dent having regard to the difference of facts between the case before the Magistrate and the Bombay case
Therefore the order passed by the Magistrate cannot be successfully challenged on the ground that the 1 A I R 11 Magistrate did not consider the question under section 540 of the Code
It appears from the order passed by the learned Magistrate that he took the view that having regard to the voluminous evidence adduced by the prosecution there was no substance in the allegation of the respondent that the evidence of the witnesses whom he proposed to examine was material or would be decisive
He has observed that the documentary evidence adduced by the prosecution was voluminous and it clearly showed a prima facie case against both the accused persons
In that connection he has also commented on the conduct of the respondent
The photostat copies of the disputed cheques had been given to both the accused persons nearly nine months before the 6th July 1961
Arguments in respect of these documents were urged before the Magistrate nearly two months before the said date
At no stage was it ever suggested to the Magistrate that the respondent wanted to lead evidence to show that the writings on the cheques were not in his handwriting and that the said fact if proved would materially affect the prosecution case
The conclusion of the Magistrate was that the application made by the respondent was vexatious and so was intended merely to delay the proceedings in his court
In view of the reasons given by the learned Magistrate in rejecting the application of the respondent it is very difficult to sustain the view taken by the High Court that the Magistrate was inclined to hold that s540 did not apply to the proceedings in the present case
The High Court has also referred to the fact that the accused persons have not been examined under s342 of the Code and it has apparently asked the Magistrate to examine the accused persons under that section without considering the question as to whether it was necessary that the Magistrate should 12 examine them at this stage
We have already referred to the relevant provisions of s207 A 6
Sub section 6 provides that the Magistrate can examine the accused if he thinks it necessary to do SO
Besides even according to the judgment of the High Court the failure to examine the accused persons under s342 did not amount to a material irregularity and could not by itself therefore justify the reversal of the order passed by the learned Magistrate
The result is the appeal is allowed the order passed by the High Court is set aside and that passed by the learned Magistrate on the 7th July 1961 is restored
It is to be regretted that the proceedings taken by the respondent in the High Court and those taken by the appellant after the decision of the High Court have added to the length of the life of this criminal case and so it is desirable that the Magistrate should proceed to pronounce his final orders as expeditiously as possible and the case should thereafter be tried by the Court of Session without unnecessary delay
Appeal allowed


Summary:
Although an accused person is not entitled to lead evidence in his defence in a proceeding under section 207A of the Code of criminal Procedure that does not affect the wide powers a Criminal Court has under section 540 of the Code to summon and examine persons as court witnesses where it considers such examination essential for a just decision of the case
Section 540 of the Code is wide enough to include a proceeding under section 207A of the Code and its operation is not excluded by the scheme of section 207A of the Code
Arunachalam Swami vs State of Bombay AIR 1956 Bom
695 referred to
Sub section 6 of section 207A of the Code does not make it incumbent on the Magistrate to examine an accused person unless he thinks it necessary to do so
Consequently in the present case where the Magistrate in a proceeding under section 207A of the Code rejected the applica tion of the accused persons for examination of witnesses in defence not because he had no power under section 540 of the Code to do so but on the ground that the application was vexatious and was intended to delay the proceeding and the High Court in revision on an erroneous view of the Magistrate s order set it aside and directed examination of the accused person under s342 of the Code
Held that the order of the High Court must be set aside