iminal Appeals Nos
57 and 58 of 1960
Appeals by special leave from the judgment and order dated November 56 1958 of the Bombay High Court at Nagpur in Criminal Appeal No 94 of 1958
Jai Gopal Sethi and G C Mathur for the appellant in Cr A No 57 of 1960
G C Mathur for the appellant in Cr A No 58 of 1960
Gopal Singh and D Gupta for the respondent
December 5
The Judgment of the Court was delivered by SUBBA RAO J
These two appeals raise rather an important question on the interpretation of the provisions of section 207A of the Criminal Procedure Code hereinafter referred to as the Code  The facts that have given rise to these appeals may be briefly stated
The appeals arise out of an incident that took place on November 29 1957 when one Sadashiv was murdered in the courtyard of his house in village Nimgaon
The case of the prosecution was that the four appellants armed with sticks went to the house of the deceased dragged him out of the house and beat him with sticks in the courtyard and that as a result of the beating he died on the next day at about 5 pm at Bhandara Hospital
After investigation the police submitted their report to the Magistrate under section 173 of the Code along with the relevant documents
After forwarding the report the officer in charge of the police station furnished 892 the appellants with a copy of the report forwarded under sub section
1 of section 173 the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposed to rely including the statements recorded under sub section 3 of section 161 and also intimated them of the persons the prosecution proposed to
examine as its witnesses
The Magistrate posted the case for inquiry on February 10 1958 and on that date the prosecution intimated that it did not intend to examine any witnesses in the Magistrate s Court  On behalf of the appellants no objection was raised tothat course
But the Magistrate adjourned the inquiry to February 12 1958 as he wanted to consider whether any evidence was necessary to be recorded before commitment
On February 12 1958 reexpressed his opinion that no witness need
be examined at that stage thereafter he framed charges against accused appellants under section 302 read with section 34 of the Indian Penal Code and also under section 448 thereof and committed the appellants to the Sessions Court
Before the learned Sessions Judge the prosecution led four types of evidence ie 1 eye witnesses namely PWs 6 11 20 and 25 2 dying declaration exhibit P 15 supported by P Ws 1822 and 19 3 the identification of the appellants in jail by PWs 20 and 25 and 4 recovery of various articles at the instance of the accused appellants
The defence examined four witnesses
On a consideration of the entire evidence the learned Sessions Judge held thatthe prosecution case had been amply borne out and that the four appellants entered into the house of the deceased and beat him in the manner described by the prosecution wit nesses
no less than 12 confused wounds were inflicted on the deceased which resulted in the fracture of his ribs and injury to the lung
and as the doctor opined that the death was due to shock and haemorrhage resulting from said fracture the learned Sessions Judge hold that the accused appellants were guilty of murder and convicted them under s302 read with a 34 Indian Penal Codeand he further convicted them under section 448 of the Indian 893 Penal Code for trespassing into the house of the deceased
On these findings the learned Sessions Judge sentenced the appellants to undergo imprisonment for life on the first count and for 3 months rigorous imprisonment on the second count
The appellants preferred an appeal against their convictions and sentences to the High Court of Bombay at Nagpur
The learned Judges of the High Court on a resurvey of the entire evidence agreeing with the learned Sessions Judge accepted the prosecution case but they held that the appellants were guilty only under section 304 Part 1 read with section 34 Indian Penal Code and in the result they reduced the sentence from life imprisonment to 10 years  rigorous imprisonment in regard to appellant 1 and to 7 years  rigorous imprisonment in regard to appellants 2 to 4
Against the said convictions and sentences the appellants have preferred by special leave appeals to this Court
Criminal Appeal No 57 of 1960 has been preferred by the first appellant and Criminal Appeal No 58 of 1960 by appel lants 2 to 4
Learned counsel for the appellants raised before us the following two points 1 The Sessions Court and on appeal the High Court have not properly appreciated the evidence and the circumstances of the case in holding that the appellants had committed the offences
2 The trial and conviction of the appellants by the Sessions Court were null and void as the Magistrate had no jurisdiction to commit the appellants to Sessions without examining witnesses under sub section
4 of section 207A of the Code and that as the order of committal was without jurisdiction the defect was not cured either under section 532 or section 537 of the Code
The first question does not merit any consideration
Both the courts below have carefully considered the evidence adduced by the prosecution as well as the accused appellants and have accepted the prosecution case
It is a well established practice of this Court not to interfere on questions of fact particularly when they are concurrent findings except under exceptional circumstances
We find no such exceptional 894 circumstances in this case
We therefore reject the first contention
The second contention turns upon the interpretation of the relevant provisions of section 207A of the Code
Before attempting to construe the relevant provisions of the section it would be helpful to notice briefly the history of the said section
Under the Criminal Procedure Code as it originally stood in the matter of committal proceedings there was no distinction between the proceeding instituated on a police report and that instituted otherwise than on police report
The main object of the committal proceedings was to hold an inquiry to ascertain and record the case which was to be tried before the Court of Sessions
It was primarily to give an opportunity to an accused to know in advance the particulars of evidence that would be adduced against him in the Court of Sessions so that he could be in a position to prepare his defence
Another object which was no less important was to enable the Magistrate to discharge an accused if there was no prima facie case against him
This procedure prevented unnecessary harassment to such accused and at the same time saved the valuable time of the Sessions Court
In practice the committal proceeding whether intended by the Legislature or not served another purpose namely it gave an opportunity to the accused to test the credibility of witnesses by bringing out the discrepancies between their evidence in the committing court the statements made by them to the police under section 161 of the Code and the evidence given by them in the Court of Sessions
Though very often accused persons took full advantage of this additional opportunity to test the veracity of the witnesses as often as not it had turned out to be duplication of trials with the resultants long delays in the disposal of criminal cases
The advantage of committal proceeding
was not solely for the accused for the
prosecution by examining the witnesses before the committing Magistrate secured their testimony in the sense that though it was tampered subsequenty it is unfortunately a frequent phenomenon in criminal cases it could use the said evidence as substantive 895 one under section 288 of the Code
The Legislature in its wisdom presumably thought that undue delay in the disposal of sessions cases was due to the elaborate and  prolonged committal proceedings and stepped in to amend the Code in that respect
The whole of section 207A has been inserted by Act XXVI of 1955
While the section simplified the procedure in regard to commitment proceedings instituted on a police report it confined the existing procedure to proceedings initiated otherwise than on a police report
This distinc tion between the two classes of cases had a reasonable factual basis
In the case of a police report a thorough inquiry would have been made and the investigating officer would have sent a report to the Magistrate under section 173 of the Code
The amended section 173 of the Code also enjoins on the officer in charge of the police station a duty to furnish before trial free of cost to the accused copies of the report forwarded under that section to the Magistrate the First Information Report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements if any recorded under section 164 of the Code and those recorded under sub section
3 of section 161 and a list of witnesses whom the prosecution proposes to examine as its witnesses
The Magistrate in a proceeding instituted on police report would ordinarily be in a position on the said material to understand the case of the prosecution and know the nature of the evidence that would be adduced on the basis of which the accused is sought to be proceeded against
The accused also would have an opportunity to know beforehand the case he would have to meet and the evidence that would be adduced against him
But in a proceeding instituted otherwise than on a police report no such maternal would be available and therefore the old procedure continued to apply to such a case
With this background let us look at the provisions of section 207A of the Code
The relevant provisions of section 207A of the Code may now be read Section 207A 1 When in any proceeding instituted on a police report the Magistrate receives the 896 report forwarded under section 173 he shall for the purpose of holding an inquiry under this section fix a date which shall be a date not later than fourteen days from the date of the receipt of the report unless the Magistrate for reasons to be recorded fixes any later date
If at any time before such date the officer conducting the prosecution applies to the Magistrate to issue a 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
At the commencement of the inquiry the Magistrate shall when the accused appears or is brought before him satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he shall cause the same to be so furnished
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 and 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
The accused shall be at liberty to cross examine the witnesses examined under sub section 4 and in such case the prosecutor may re examine them
6 When the evidence referred to in sub section 4 has been taken and the Magistrate has considered all the documents referred to in section 173 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 such Magistrate 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 it appears to the Magistrate 897 that such person should be tried before himself or some other Magistrate in which case he shall proceed accordingly
When upon such evidence being taken such documents being considered such examination if any being made and the prosecution and the accused being given an opportunity of being 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
On the interpretation of sub section
4 which is the main sub section under scrutiny in the present case the High Courts in India have expressed conflicting views
It would not be necessary to consider the said decisions in detail but it would be enough if we state the conflicting views which areas follow 1 Under sub section
4 the prosecution is bound to examine all the eye witnesses indicated in the police report and the discretion of the Magistrate to examine witnesses under the second part of the said sub section is only in respect of witnesses other than the eye wit nesses vide M Pavalappa vs State of Mysore 1 State vs Andi Betankar 2 Ghisa vs State 3  and Chandu Satyanarayana vs The State 4
2 The Magistrate s power to examine eye witnesses under the first part of sub section
4 is confined only to such witnesses as are produced in court by the officer conducting the prosecution and if he has not produced any such witnesses the Magistrate cannot examine any eye witnesses under the second part of the said sub section for according to this view the second part deals with only witnesses other than eye witnesses
3 If the prosecution has not produced any eye witnesses the court may not in its discretion examine any witness under the second part but can if satisfied discharge or commit the accused to sessions on the basis of the documents referred to in section 178 of the Code vide State vs Lakshmi Narain 5 State of U P vs Satyavir 6
4 The first part confers a power on a Magistrate only to examine the eyewitnesses produced but 1 AIR 3 AIR 1919 Raj
5 AIR 1960 All 237
2 AIR 1958 Orissa 241
4 AIR 1959 AP651
6 AIR 1959 All
898 the second part empowers him to examine any witness other than those produced whether eyewitnesses or not and in a case where the prosecution failed to discharge its duty to produce any witnesses or any important eye witnesses the court would not be exercising its judicial discretion if it commits the accused to sessions on the basis of documents referred to under section 173 of the Code without examining at least the important witnesses vide State vs Yasin 1 In re Pedda Amma Muttigadu 2 A Ishaque vs The State 3 and Manik Chand vs The State 4
We have gone through the judgments of the High Courts cited at the Bar and derived considerable assistance from them for deciding the question raised
But as the question is to be primarily decided on the interpretation of the relevant provisions we think without any disrespect to the learned Judges that it is not necessary to consider the said decisions in detail
Now let us look at the relevant provisions of section 207A of the Code to ascertain its intendment
Sub section
4 is the most important section vis a vis the taking of evidence
It is in two parts the first part provides for the examination of witnesses produced by the prosecution and the second part for the examination of other witnesses
One of the fundamental rules of interpretation is that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense the words themselves in such case best declaring the intention of the legislature
The first part of the sub section reads 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
 The word shall imposes a peremptory duty on the Magistrate to take the evidence but the nature of the said evidence is clearly defined thereafter
The clause as may be produced by the prosecution as witnesses to the actual commission of the offence alleged governs the words such persons 1 AIR 1958 All
3 AIR 1958 Cal
2 AIR 1959 AP 469
4 AIR 1958 Cal
324 899 with the result that the duty of the Magistrate to take evidence is only confined to the witnesses produced by the prosecution
Learned counsel for the appellants contends that it could not have been the intention of the Legislature to permit the prosecution to keep back the eye witnesses in the committal court and therefore the word produced should be read as cited
To accept this interpretation is to substitute the word cited in place of the word produced such a construction is not permissible especially when the plain meaning of the word used by the Legislature is clear and unambiguous and the acceptance of that meaning does not make the section otiose
The phrase if any between the words such persons and the aforesaid clause emphasizes that the prosecution may not produce any such persons in which case the obligation to examine such witnesses cannot arise
The wording of the second part of the sub section is also without any ambiguity and it reads and 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
 No doubt the word may in the clause he may take evidence imposes duty upon the Magistrate to take other evidence but that duty can arise only if he is of opinion that it is necessary in the interests of justice to take the evidence
The fulfilment of the condition that gives rise to the duty is left to the discretion of the Magistrate
The duty to take evidence arises only if he is of the requisite opinion
Doubtless the discretion being a judicial one it should be exercised reasonably by the Magistrate
If he exercises it perversely it may be liable to be set aside by a superior court
If so what do the words other
witnesses mean Do they mean witnesses other than eyewitnesses or witnesses eye witnesses or not other than those produced before the Magistrate by the prosecution The witnesses who will depose to the prosecution case may be of different categories namely i witnesses who are eye witnesses to the actual commission of the offence alleged ii witnesses who speak to the facts 900 which afford a motive for the commission of the offence iii witnesses who speak to the investigation and to the facts unfurled by the investigation and iv witnesses who speak to the circumstances and facts probablizing the commission of the offence which is technically described as substantive evidence
Sub section 4 enjoins on the Magistrate a duty to examine the first category of witnesses produced by the prosecution
The word actual qualifying the word commission emphasises the fact that the said witnesses should be those who have seen the commission of the offence
We have held in interpreting the first part that the Magistrate should examine only such witnesses who are produced before him by the prosecution but there may not be eyewitnesses in a case or if there are the prosecution may not have produced all of them before the Magistrate
The second part of the sub section therefore confers a discretionary power on the Magistrate to examine any one or more of witnesses of all categories including the eye witnesses who have not been produced by the prosecution within the meaning of the first part of the said sub section
But it is said that sub sections
6 and 7 indicate that taking of evidence by the Magistrate is a condition precedent for making an order of discharge or of committal and therefore the provisions of Sub section
4 must be so construed as to impose a duty on the Magistrate to examine some witnesses
Firstly we cannot hold that the sub sections impose any such condition
The argument is that the clause in subs
6 namely When the evidence referred to in subsection 4 has been taken is a condition precedent for making an order of discharge
The adverb when in the clause in the context denotes a point of time and not a condition precedent
The clause means nothing more than that an order of discharge can be made under sub section 6 after the events mentioned therein have taken place
Secondly the two clauses necessarily refer to the corresponding or appropriate situations under the earlier sub sections
The first clause will not come into play if the Magistrate has not taken any evidence
So too in sub section 7 also the 901 adverb when denotes the time when the Magistrate can make the order of committal
If evidence has not been taken that sub section is not applicable a the Magistrate proceeds to make an order of committal on other material referred to in the sub section
On the other hand  if the said two sub sections are construed as imposing a condition precedent for making an order of discharge or commitment as the case may be the said two sub sections will directly come into conflict with the provisions of sub section
When one
sub section clearly confers a discretion on the Magistrate to take or not to take evidence the other subsections take it away
It is not permissible to create conflict by construction when by an alternative construction all the three sub sections can be harmonized and reconciled
If the construction suggested by learned counsel for the appellants be adopted it would also lead to an anomaly in that the Magistrate though the documents referred to in section 173 clearly pronounce the innocence of the accused has to go through the pretence of examining one or more witnesses to satisfy the provisions of the sub section
Reliance is placed upon section 251A of the Code relating to warrant cases whereunder the Magistrate is authorized upon consideration of all the documents referred to in section 173 and upon making such examination of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard to discharge the accused if he considers the charge against the accused to be groundless but if he is of opinion that there is ground that the accused has committed an offence alleged against him he shall frame in writing a charge against the accused
By contrasting this provision with section 207A it is contended that if the construction put forward by learned counsel is not accepted the obvious difference between the two
procedures indicated by the Legislature would be obliterated
We cannot agree with this contention
The difference between the two procedures is that in a case covered by section 207A evidence will have to be taken under certain 902 contingencies whereas under section 251A no evidence need be taken at all
That distinguishes the different procedures under the two sections and it is not the province of the court to add any further conditions or limitations to those provided by the Legislature
We are fortified in our view by a decision of this Court in Macherla Hanumantha Rao vs The State of Andhra Pradesh 1
There the point in controversy was whether sa
207 and 207A inserted in the Code by the Amending Act XXVI of 1955 violated the provisions of article 14 of the Constitution
In support of the contention that they violated article 14 of the Constitution it was sought to be made out that the provisions of section 207A of the Code in comparison and contrast with other provisions of Ch
XVIII of the Code prescribed a less advantageous position for the accused persons in a proceeding started under a police report than the procedure prescribed in other cases in the succeeding provisions of that chapter
This Court held that there was a reasonable classification to support the difference in the procedures
Sinha J as he then was who spoke for the Court in order to meet the argument based on discri mination considered the scope of the new section
In doing so the learned Judge observed thus at p 403 The magistrate then has to record the evidence of such witnesses as figure as eye witnesses to the occurrence and are produced before him
He has also the power  in the interest of justice to record such other evidence of the prosecution as he may think necessary but he is not obliged to record any evidence
Without recording any evidence but after considering all the documents referred to in section 1973 and after examining the accused person and after hearing the parties it is open to the magistrate to discharge the accused person after recording his reasons that no ground for committing the accused 1 for trial has been made out unless he decides to try the accused himself or to send him for trial by another magistrate
If on the other hand he finds that the accused should be committed for trial he is required to frame a charge 1  903 disclosing the offence with which the accused is charged
 Then the learned Judge proceeded to consider the scope of section 208 of the Code
After having found that there was obvious difference in the procedure the learned Judge came to the conclusion that the Legislature has provided for a clear classification between the two kinds of proceedings at the commitment stage based upon a very relevant consideration namely whether or not there has been a previous inquiry by a responsible public servant whose duty it is to discover crime and to bring criminals to speedy justice
It will thus be seen that the observations of the learned Judge at p 403 cannot be said to be obiter as learned counsel asks us to hold for the construction of the provisions of section 207A was necessary to ascertain whether there was reasonable classification or not
Assuming that the said observations are obiter even then they record the considered opinion of five learned Judges of this Court
The view we have expressed also is consistent with the said observations
Our view could now be expressed in the following propositions 1 In a proceeding instituted on a police report the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution in court
2 The Magistrate if he is of opinion that it is in the interest of justice to take evidence whether of eye witnesses or others he has a duty to do so
3 If the Magistrate is not of that opinion and if the prosecution has not examined any eye witnesses he has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in s 173 of the Code
4 The discretion of the Magistrate under sub section 4 is a judicial discretion and therefore in appropriate cases the order of discharge or committal as the case may be is liable to be set aside by a superior court
Before closing we would like to make some observations
Rarely we come across cases where the prosecution does not examine important eye witnesses for such a procedure would entail the danger of the said witnesses being tampered with by the accused with 904 the result that there will not be any evidence taken by the committing Magistrate which could be used as substantive evidence under section 288 of the Code
Even if the prosecution takes that risk the Magistrate shall exercise a sound judicial discretion under the second part of sub section
4 of section 207A in forming the opinion whether witnesses should be examined or not and any perverse exercise of that discretion can always be rectified by a superior court
Rut there may be a case where the Magistrate can make up his mind definitely on the documents referred to in section 173 without the aid of any oral evidence and in that event he would be within his rights to discharge or commit the accused as the case may be
In this view it is not necessary to express our opinion whether even if the Magistrate acted illegally in committing an accused without taking any evidence the said illegality is cured either by section 537 of the Code or any other section thereof
In the result the appeals fail and are dismissed
Appeals dismissed


Summary:
On the date fixed for the inquiry the prosecution intimated to the Magistrate that it did not intend to examine any witness in the Magistrate s Court
The Magistrate adjourned the inquiry to consider whether it was necessary to record any evidence before commitment
On the adjourned date he expressed his opinion that no witnesses need be examined framed charges against the appellants and committed them to the Sessions Court
The appellants contended that the Magistrate had  no jurisdiction to commit them to Sessions without examining witnesses under sub section
4 of section 207 A of the Code of Criminal Procedure
Held that the order of commitment was valid and the Magistrate had jurisdiction to make it Without recording any evidence
The position under section 207 A of the Code is that i the Magistrate is bound to take evidence of only such eye witnesses as are actually produced by the prosecution before the Committing Court 891 ii the Magistrate if he is of opinion that it is in the interests of justice to take evidence whether of
eye witnesses or of others he has a duty to do so iii the
Magistrate if he is not of that opinion and if the prosecution has not examined any eye witnesses he has jurisdiction to discharge or commit the accused on the basis of the documents referred to in section 173 of the Code ivthe discretion of the Magistrate is a judicial dis cretion which is liable to be corrected by a superior Court Macherla Hanumantha Rao vs The State of Andhra Pradesh   relied on