minal Appeal No 143 of 1957
Appeal from the judgment and order dated the 8th May 1957 of the Allahabad High Court in Criminal Reference No 149 of 1956 arising out of the judgment and order dated the 14th January 1956 of the First Additional Sessions Judge Agra in Sessions Trial No 141 of 1954 and Criminal Misc
No 1 of 1956
G section Pathak and Mohan Behari Lal for the appellants
G C Mathur C P Lal and G N Dikshit for the respondent No 1
Janardan Sharma for respondent No 2 1959
September 14
The Judgment of the Court was delivered by WANCHOO J
This is an appeal oil a certificate granted by the Allahabad High Court in a criminal matter
The facts of the case may be set out in some 738 detail to bring out the point raised in this appeal
A complaint was filed by Rajendra Kumar Jain against the four appellants and three others under sections 409 465 467 471 and 477A of the Indian Penal Code
It is not necessary for present purposes to set out the details of the complaint
Suffice it to say that after the statement of the complainant under section 200 of the Code of Criminal Procedure hereinafter referred to as the Code summonses were issued to the accused persons requiring them to answer a charge under section 406 of the Penal Code
Prosecution witnesses were then examined and cross examined and the statements of the accused persons recorded
The Magistrate then heard argu ments on the question of framing of charges which were concluded on September 23 1954
It was then ordered that the case should be put up on September 30 1954 for orders
On that date the Magistrate framed charges against the four appellants under sections 409 and 465 read with section 471 and 477A of the Penal Code
On the same date the Magistrate ordered commitment of the four appellants to the Court of Session on these charges
The remaining three accused were discharged
There was then a revision petition by Rajendra Kumar Jain against the discharge of one of the three accused namely Bhajan Lal
When the matter came up before the First Additional Sessions Judge Agra he ordered suo motu on April 9 1955 after a perusal of the commitment order that Bhajan Lal be committed to the Court of Session to stand his trial
In view of this order he dismissed the revision petition as infructuous
Thereupon Bhajan Lal went in revision to the High Court
That petition was heard by Roy J and he set aside the order of commitment of Bhajan Lal and one of the reasons given by him for doing so was that a Magistrate was not empowered to frame a charge and make an order of commitment until he had taken all such evidence as the accused might produce before him
As Bhajan Lal had not been called upon to produce evidence in defence the order of commitment made by the Sessions Judge was held to be not in accordance with law
This order was passed on 739 October 6 1955
Thereupon on January 7 1956 the four appellants filed a revision petition before the Sessions Judge praying that the order of commitment passed against them be quashed and the main reason advanced in support of this petition was that the learned Magistrate had not observed the mandatory provisions of law laid down in sections 208 to 213 of the Code which were essential for a valid commitment
This petition came up before the same First Additional Sessions Judge and he made a reference to the High Court that as the procedure followed by the Magistrate was irregular the order of commitment dated September 30 1954 was bad in law and should be quashed
This reference came up for bearing before another learned Judge of the High Court namely Chowdhry J and he took the view that the Magistrate had not failed to comply with the provisions of section 208 and that non compliance with the provisions of sections 211 and 212 was curable under section 537 of the Code
He therefore rejected the reference
There was then an application for a certificate to appeal to this Court which was allowed particularly as the view taken by Chowdhry J was in conflict with the view taken by Roy J already referred to
The main contention of the appellants before us is that as the case began before the Magistrate as a warrant case under section 406 of the Penal Code it was incumbent upon the Magistrate when he decided in view of the provisions of section 347 1 of the Code that the case should be committed to the Court of Session to follow the procedure provided in Ch
XVIII of the Code and inasmuch as he had failed to comply with sections 208 to 213 of the Code the commitment was bad in law and should be quashed
The first question that falls for consideration therefore is whether the Magistrate when he began this case was proceeding in the manner provided for the trial of warrant cases
Section 347 1 of the Code comes into play when at any stage of the proceedings in any trial before a Magistrate it appears to him that the ease ought to be tried by the Court of 740 Session he has then to commit the accused under the provisions herein before contained
The Sessions Judge who made the reference held that the case before the Magistrate proceeded from the beginning as if it was a trial of a warrant case
It was on that basis that the Sessions Judge held that when the Magistrate made up his mind that the case ought to be committed to the Court of Sessions in view of the provisions of section 3471 of the Code it was his duty to observe the procedure laid down in Ch
XVIII particularly under sections 208 211 and 212 of the Code
The order of reference was sent to the Magistrate for explanation if any and the Magistrate replied that he had no explanation to submit
He did not say in his explanation that he was not proceeding as in a warrant case and that the proceedings before him throughout were proceedings in the nature of an inquiry under Ch
XVIII
When however the matter came up before the High Court Chowdhry J was of opinion that though the Magistrate was competent to try the case as summonses has been issued under section 406 1
P C only it was open to him to hold an inquiry under Ch
XVIII from the very beginning in view of the provisions of section 207 which empower a Magistrate to follow the procedure provided in Ch
XVIII in cases exclusively triable by a Court of Session and also in cases which are not exclusively triable by the Court of Session but which in the opinion of the Magistrate ought to be tried by such Court
The High Court was further of the view that the offence mentioned in the summons should be deemed to have given notice to the accused that it was optional with the Magistrate to hold an inquiry with a view to commit them to the Court of Session or to try them himself as in a warrant case because column 8 of Schedule 11 of the Code says that a case under section 406 is triable by a Court of Session Presidency Magistrate or Magistrate of the first or second class
Therefore according to the High Court the matter was at large whether the Magistrate was going to adopt one procedure or the other despite the issue of summonses under section 406 of the Penal Code and that 741 nothing had happened to induce the belief in the accused that they would be tried as in a warrant case
The High Court therefore held that the case was proceeded with from the beginning as if it was an inquiry under Ch
XVIII and on that view it held that there was no non compliance with section 208 of the Code
As for non compliance with sections 211 and 213 the High Court was of the view that it was curable under section 537 of the Code as no prejudice was caused
We must say with respect that this view of the nature of the proceedings before the Magistrate is not correct
It is true that it is open to a Magistrate to hold an inquiry from the beginning under Chapter XVIII in a case not exclusively triable by the Court of Session
But the mere fact that the Magistrate has such power does not necessarily indicate to the accused that he is holding an inquiry under Ch
XVIII rather than a trial before himself
Where the case is not exclusively triable by the Court of Session the accused would naturally conclude that the proceedings before the Magistrate are in nature of a trial and not an inquiry under Ch
XVIII
If the Magistrate intends to use his powers under section 207 and hold an inquiry from the beginning in a case not exclusively triable by the Court of Session the only way in which the accused Can know that he is holding an inquiry and not a trial is by the Magistrate informing the accused that he is holding an inquiry under Ch
XVIII and not trial
If he fails to do so the accused can reasonably conclude that a trial is being held
In this case undoubtedly the Magistrate did not indicate to the accused from the beginning that his proceedings were in the nature of an inquiry under Ch
XVIII
Therefore the accused would naturally conclude that the proceedings before him were in the nature of a trial of a warrant case as the summonses that they had received were under section 406 of the Penal Code only
The fact that in the complaint section 467 which is exclusively triable by a Court of Session was mentioned is of no consequence for the summonses
to the accused were only for a trial under section 406 of the Penal Code
It must therefore be held that the proceedings before 742 the Magistrate began as in the trial of a warrant case and if the Magistrate at a subsequent stage of the proceedings was of the view that the case should be committed to the Court of Session he would have to act under section 347 1 of the Code
We have been at pains to refer to this aspect of the matter for considerations would be different if the case was exclusively triable by the Court of Session and began from the outset as an inquiry under Ch
XVIII
What we shall say hereafter must therefore be taken to apply only to a case which began as a proceeding in a warrant or summons case and in which the Magistrate at a later stage takes action under section 347 1
This brings us to a consideration of the duty of the Magistrate who takes action under section 347 1 of the Code
That section reads as follows  If in any inquiry before a Magistrate or in any trial before a Magistrate before signing judgment it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court and if he his empowered to commit for trial he shall commit the accused under the provisions hereinbefore contained
 The first question that has to be decided is the meaning of the words  under the provisions hereinbefore contained 
These words have been the subject of decision by a number of High Courts and the High Courts are unanimous that they mean that if the Magistrate decides at some stage of the trial to commit the accused he has to follow the provisions contained in Ch
XVIII
It is not necessary to refer to those decisions for the words themselves are quite clear
They lay down that if the Magistrate comes to the conclusion that the accused ought to be committed for trial he shall commit in accordance with the provisions contained in the earlier part of the Code namely in Ch
XVIII
This of course does not mean that the Magistrate must begin over again from the beginning
All that he has to do when he decides that the case ought to be committed is to inform the accused and see that the provisions of Ch
XVIII are complied with so far as they have not been complied 743 with up to the stage at which he decides that there ought to be a commitment
Now the procedure under Ch
XVIII is laid down in sections 208 to 213 of  the Code
The Magistrate begins by hearing the complainant if any and takes all evidence that may be produced in support of the prosecution or on behalf of the accused or as the Magistrate may call himself
The Magistrate is also required to issue process to compel the attendance of any witness or the production of any document or other thing if the complainant or officer conducting the prosecution of the accused applies to him
After the evidence under section 208 has been taken the Magistrate then examines the accused for the purpose of enabling him to explain any circumstances appearing in evidence against him under section 209
Thereafter if he is of opinion that there are not sufficient grounds for committing the accused for trial lie can discharge him unless it appears to him  that such person should be tried before himself or some other Magistrate in which case he has to proceed accordingly
On the other hand if the Magistrate is of opinion after taking the evidence and examining the accused that there are sufficient grounds for committing the accused for trial he has to frame a charge under section 210 declaring with what offence the accused is charged
The charge is then read over and explained to the accused and a copy thereof if he so requires is furnished to him free of cost
After the charge is framed the Magistrate calls upon the accused under section 211 to furnish a list of persons orally or in writing whom he wishes to be summoned to give evidence on his trial
The Magistrate may also allow the accused to furnish a further list at a later stage in his discretion
Section 212 gives power to the Magistrate in his discretion to summon and examine any witness named in any list under section 211
Then comes section 213 which lays down that if the accused has refused to give a list as required by section 211 or if he has given one and the witnesses if any included therein whom the Magistrate desires to examine have been summoned and examined under section 212 the Magistrate may make an order committing the accused for trial by the High Court or the 744 Court of Session and shall also briefly record the reasons for such commitment
On the other hand if he is satisfied after hearing the witnesses for the defence that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused
It will be seen from this analysis of the provisions relating to commitment that section 208 gives a right to the accused to produce evidence in defence before the Magistrate examines him under section 209 and proceeds to frame a charge under section 210
Now when a Magistrate makes up his mind to commit a case not exclusively triable by the Court of Session under the power given to him under section 347 1 of the Code he has to follow this procedure
But as we have said earlier it is not necessary that the Magistrate should begin from the beginning again when he so makes up his mind
The Magistrate may make up his mind at any stage of the trial before him and generally speaking four contingencies may arise
Firstly he may make up his mind after the trial is practically over and the witnesses for the prosecution have been examined and crossexamined after the charge the accused has be en examined both under sections 253 and 342 of the Code and and all the defence evidence has been taken
In such a case sections 208 209 and 210 have been complied with and all that the Magistrate has to do is to intimate to the accused that he intends to commit him for trial and ask him to give the list of witnesses under section 211 and proceed thereafter as provided in Ch
XVIII
Secondly the Magistrate may make up his mind after all the witnesses for the prosecution have been examined and cross examined and the charge has been framed but no defence has been taken
In such a case that part of section 208 which lays down that all the evidence for the prosecution shall be taken has been complied with and the Magistrate may then proceed to comply with the rest of section 208 and take the defence evidence and then proceed further under sections 209 to 213 and amend the charge so as to make it conformable to a charge in an inquiry under Ch
XVIII or cancel it
Thirdly the Magistrate may make up his mind after 745 some of the prosecution witnesses have been examined and cross examined and a charge has been framed
In such a case he has to examine the rest of the prosecution witnesses under section 208 and take the defence evidence if any produced by the accused and then proceed under sections 209 to 213 amending or cancelling the charge already framed as indicated earlier
Lastly the Magistrate may have only just begun taking evidence for the prosecution and may not have framed a charge
In such a case he takes the rest of the prosecution evidence and complies with the provisions from sections 208 to 213
But in each of these four contingencies it is the duty of the Magistrate to intimate to the accused that he has made up his mind to commit in view of the provisions of section 3471 and then proceed in the manner indicated above
It is necessary that the accused should know when the Magistrate makes up his mind to commit so that their right under section 208 to produce defence if any before commitment is made is safeguarded
Now what happened in this case was this
The Magistrate had apparently taken all the prosecution evidence and the prosecution witnesses had been examined and cross examined the Magistrate had framed no charges upto September 30 1954
He had heard arguments on the question whether any charges should be framed and had fixed September 301954 for orders in this respect
When therefore he decided on September 301954 that the case ought to be committed to the Court of Session the proper course for him was to refrain from framing any charges and intimate to the accused that he intended to commit them for trial
He then should have called upon them to produce defence evidence if any under section 208 and then proceeded further under Ch
XVIII
The Magistrate however failed to inform the accused that he had made up his mind to proceed under section 347 1 and to commit them for trial
What he did on September 30 1954 was to frame charges forthwith and record an order committing the accused to the Court of Session under section 213 of the Code
He thus deprived them of their right to lead defence evidence if any under section 208
It may be that if he had told them that he was 746 going to proceed under section 347 1 and commit them for trial and asked them if there was any defence evidence to be produced they might have said that they did not wish to produce any defence before him at that stage
But what the accused would have said if the Magistrate had proceeded in this manner is irrelevant in considering the question whether the commitment in this case was bad in law inasmuch as it did not comply with section 208 so far as giving the accused an opportunity to lead defence evidence if any was concerned
The fact remains therefore that in this case the Magistrate when he decided to act under section 347 1 did not intimate that decision to the accused and proceeded forthwith to commit them for trial under section 213 thus depriving them of the right to produce defence evidence if any under section 208
The next question which falls for consideration is the effect of this non compliance with section 208 of the Code and whether it is curable under section 537 of the Code
The effect of Don compliance with various provisions of the Code and whether such non compliance is curable under section 537 have been the subject of a large number of cases before various High Courts and also before their Lordships of the Judicial Committee of the Privy Council
It is not necessary to refer to this mass of authorities
One of the earliest of these case decided by the Privy Council is Subramania Iyer vs King Emperor 1 while one of the latest is Pulukuri Kotayya vs King Emperor2
The law was summed up by their Lordships of the Judicial Committee in Pulukuri Kotayya s case 2  at p 75 in these words When a trial is conducted in a maner different from that prescribed by the Code as in NA Subramania Iyer s case 1 the trial is bad and no question of curing an irregularity arises but if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the  course of such conduct the irregularity can be cured under section 537 and none the less so because the irregularity involves  as must nearly always be the case a breach of one or more of the very comprehensive provisions of the code
The distinction 1 1901 LR 28 IA 257
2 1948 LR 74 IA 65
747 drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind
This view finds support in the decision of their Lordships  Board in Abdul Rehman vs The King Emperor1 where failure to comply with sections 360 of the Code of Criminal Procedure was held to be cured by section 535 and 537
 These observations were quoted with approval by this Court in Narain Rao vs The State of Andhra Pradesh2
It seems therefore fruitless to consider whether the non compliance with section 208 in this case is an illegality which cannot be cured under section 537 or an irregularity which is curable thereunder
As the stage of trial has not been reached in this case no question arises of considering whether the trial has been conducted in a manner different from that prescribed by the Code
What we have to see is whether the breach of section 208 which has occurred in this case is such that the Court will presume prejudice to the accused by the mere fact of the breach
If such presumption can be made the breach would obviously be not curable under section 537 of the Code even assuming that that section applies
The question therefore which eventually emerges is whether this breach of section 208 is of such a character that the Court will presume that there has been prejudice to the accused by the mere fact of the breach
Now the accused has a right under section 208 to produce evidence in defence if any before the Magistrate proceeds to decide whether a charge should be framed or not
The Magistrate s decision whether the charge should be framed or not is bound to be affected one way or the other if evidence is produced by the accused for the Magistrate Would then be bound to consider the effect of that evidence on the question of framing the charge
If the accused is denied the opportunity of leading that evidence which he has a right to do under section 208 it seems to us that the denial of such right is sufficient to cause prejudice to the accused and section 537 would have no application to a case of this kind
The possibility that the accused may not have produced defence if asked by the Magistrate whether he would do so 1 1926 LR 54 IA 96 2 748 is of no consequence so far as this conclusion is concerned
If this is the reply expected it makes it all the more incumbent on the Magistrate to inform the accused that he was intending to commit the case and ask him if he wished to produce evidence
If the accused did not want to do so the Magistrate would have done his duty and his way would be clear to proceed further with his intention to commit the accused
But when the Magistrate did not intimate to the appellants in this case that he was intending to commit them for trial and proceeded to frame charges and pass the order of commitment forthwith on September 30 he was denying to them their right to produce defence under section 208 of the Code
The denial of that right is in our opinion in itself sufficient to cause prejudice to the accused and failure of justice inasmuch as the accused were prevented from leading evidence which might have induced the Magistrate not to frame a charge against them or cancel it
We are therefore of opinion that the breach of section 208 which took place in this case was such as was bound to cause a failure of justice and there is therefore no question of the application of section 537 in these circumstances
The commitment is therefore bad in law and must be quashed on this ground alone
In the petition of appeal the appellants have referred also to breach of provisions of sections 211 212 and 213 of the Code
As we have come to the conclusion that the breach of section 208 in this case is sufficient to invalidate the commitment it is not necessary to consider the effect of the further breach of sections 211 212 and 213
What we have said in this case wit respect to the effect of the breach of section 208 may not be taken as applying to the breach of sections 211 212 and 213 for the considerations arising out of those breaches may be different
We therefore allow the appeal quash the order of commitment as well as the charges framed and send the case back to the Magistrate to proceed in the manner indicated above according to law
Appeal allowed


Summary:
An unmarried Sunni Muslim mother of an illegitimate female child made an application under section 49I Of the Code of Criminal Procedure for the recovery of the child from the respondents
Held that under the Mohammedan Law the mother of an illegitimate female infant child is entitled to its custody
The refusal to restore such a child to the custody of its mother would result in an illegal detention of the child within the meaning of section 49I of the Criminal Procedure Code
A dispute as to the paternity of the child is irrelevant for the purpose of the application
The Supreme Court will interfere with the discretionary powers of the High Court if the discretion was not judicially exercised
Held also that before making the order for the custody of the child the court is called upon to consider its welfare
Held further that the fact that a person has a remedy under the Guardian and Wards Act is no justification for denying him the remedy under section 49I Of the Criminal Procedure Code
Held further that in issuing writs of habeas corpus the courts have power in the case of an infant to direct its custody to be placed with a certain person
The Queen vs Clarke  and The King vs Greenhill  relied on
Zara Bibi vs Abdul Razzak 1910 XII Bom
LR 891 Subbuswami Gounden vs K Kamakshi Ammal Mad
72 and Rama Iyer vs Nata Raja lyer AIR 1948 Mad
294 referred to