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TMI Blog1963 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... application was submitted by the prosecutor that the accused be examined by the Magistrate under S. 207-A (6) of the Code of Criminal Procedure. The application was granted by the Magistrate after rejecting the objections raised by some of the accused and the accused were ordered to remain present in Court for their examination under s. 207-A sub-ss. (6) & (7). Against that order the appellants moved the High Court of Bombay in revision, but without success. With special leave, the appellants have appealed to this Court. The appellants say that in an enquiry for commitment to the Court of Session the accused person can be asked to explain circumstances appearing against him only from the oral evidence recorded under s. 207-A(4) and not from circumstances appearing from the documents furnished under s. 173(4) of the Code. A brief review of the provisions relating to proceedings for commitment of the accused to the Court of Session may be useful in considering the plea of the appellants. The Court of Session has except in cases expressly provided in the Code no power to take cognisance of a case directly on a complaint or a report of a police officer or on its own motion. The case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'Prosecutor applies for process to compel attendance of witnesses or production of documents or things he may do so. After satisfying himself at the commencement of the enquiry that the accused has been furnished with the documents referred to in s. 173(4), the Magistrate records evidence of persons produced by the prosecution as witnesses to the actual commission of the offence, and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of other witnesses he may take such evidence, the accused having liberty to cross-examine all such witnesses examined by the prosecutor or by the Court. All the documents on which the prosecutor seeks to rely in support of the case for the prosecution, statements of all witnesses recorded in the course of investigation by the Investigating officer, report of the police officer, the first information, and confession and statements, if any, recorded under s. 164 Criminal Procedure Code are made available to the accused. Witnesses to the actual commission of the offence if produced by the prosecutor and witnesses called at the instance of the Magistrate are also examined in his presence. The object of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to in s. 173 that the accused should be committed for trial, he has to frame a charge and commit the accused for trial. In exercising his functions under sub-s. (6) or sub-s. (7) a Magistrate indisputably performs a judicial function He is bound 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 even if the prosecutor does not produce any witnesses the Magistrate may, if he is of opinion that it is necessary in the interests of justice to take evidence of any one or more witnesses for the prosecution, take that evidence. By the terms of the statute, an overriding duty is cast upon the Magistrate whether the prosecutor has or has not produced witnesses to the actual commission of the offence to examine witnesses whose examination is, in his view, necessary in the interests of justice and this power to examine witnesses is not restricted to the examination of witnesses to the actual commission of the offence alleged. After recording the evidence of such witnesses and considering the documents which are referred to in s. 173(4), the Magistrate may examine the accused, if he consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds for committing" indicates, having regard to the context, that the evidence referred to in sub-s. (4) alone is comprehended thereby. But the expression "the evidence" in the clause "examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him" is, in our judgment, not restricted to the oral evidence recorded under sub-s. (4). Among the documents which the Magistrate has to consider are the documents which the prosecution proposes to rely upon at the trial including the statements and confessions, if any, recorded under s. 164 and s. 161 (3). The documents form part of the record of the Magistrate, and it would be open to the prosecutor and the accused to rely thereon in support of their respective contentions when they exercise their right of being heard. Those documents have to be considered together with the oral evidence by the Magistrate in forming his opinion whether the accused should be committed to the Court of Session or be discharged. It would indeed be surprising if the Legislature intended by using the expression "examined the accused for the purpose of enabling him to explain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise from the context which would suggest that it has a limited content. It was urged in the alternative by counsel for the appellants that even if the expression "evidence" may include documents, such documents would only be those which are duly proved at the enquiry for commitment, because what may be used in a trial, civil or criminal, to support the judgment of a Court is evidence duly proved according to law. But by the Evidence Act which applies to the trial of all criminal cases, the expression "evidence" is defined in s. 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and all documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence. Normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended Code the Legislature has in s. 207-A prescribed a special procedure in proceedings for commitment of the accused. The record consists of the oral evidence recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efence. But s. 207-A (6) does not contemplate such general questioning: it contemplates examination only for the purpose of explaining any circumstances appearing against the accused. Therefore by merely failing to avail himself of the opportunity to explain circumstances to which his attention is drawn the accused does not refuse to answer a question which would justify a presumption against him that the answer if given would be against him. The scheme of s. 251-A which was brought on the statute book simultaneously with s. 207-A by Act 26 of 1955, also furnishes an indication that in the examination of the accused for enabling him to explain circumstances appearing in the evidence against him, documents referred to in s. 173(4) cannot be excluded. Section 251-A prescribes a special procedure for warrant cases, instituted upon police reports. In a case started otherwise than on a police report, the old procedure of examining witnesses and framing a charge on which the accused is to be tried continues to apply. But where the proceedings commence on a police report, the Magistrate has under s. 251-A (2) to consider the documents referred to in s. 173(4) and then to examine the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een recorded and the documents referred to in s. 173(4). We are not concerned to decide whether the Magistrate in the present case was justified in calling upon the accused to remain present for their examination after the arguments of the prosecution and the accused were concluded. Normally, such an examination would take place before arguments of the prosecutor and the accused are heard. But there is nothing in the Code to prevent the examination, if in the course of hearing the arguments, the Magistrate entertains the opinion that such examination may be necessary in the interests of justice for the purpose of enabling the accused to explain any circumstances appearing against him. In that view of the case this appeal fails and is dismissed. AYYANGAR, J.-We regret our inability to agree with the judgment just pronounced. Section 207-A(6) of the Criminal Procedure Code reads: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the whole case." Subsequent to this date the documents under s. 173 of the Code were filed. Immediately thereafter, the parties addressed arguments to the court based on the documents before the Court. , The prosecution commenced its arguments from July 8, 1963, and after this was completed the accused made their submissions and these arguments concluded on the 26th of July, 1963. On the same day a large number of the accused submitted a memorandum to the court in which they urged that as the prosecution had led no oral evidence under s. 207-A(4) of the Code, but had merely relied on the documents filed in proof of a prima facie case against the accused, the Magistrate should not "examine the accused" and this they 'urged on two grounds: (1) that on a proper construction of s.207-A(6) of the Code it was not open to the court to examine them and (2) that such examination, even assuming that the court had jurisdiction to do so, would, in the circumstances of the case, work serious prejudice to them particularly as any statement made by the accused during their examination might be used as evidence against them. The Special Public Prosecutor in his turn filed a memor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is particular sub-section could be understood: " s. 207-A(1). When, in any proceeding instituted on a police report, the Magistratereceives the report forwarded under s. 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 report, unless the Magistrate, for reasons to be recorded, fixes any later date. (2) 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. (3) 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." Section 207-A was newly introduced into the Code by s. 29 of the Criminal Procedure Code Amendment Act, (Act 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions, if any, recorded under s. 164 and (2) the statements recorded under sub-s. (3) of s. 161 of all the persons whom the prosecution proposes to examine as its witnesses. There are some reservations to these provisions under which certain documents might be withheld but we shall not refer to them as the same are not relevant to the context. We shall now take up for consideration the terms of s. 207- A(6) and the controversy now centres round the words 'to examine the accused................ to explain any circumstances appearing in the evidence against him'. It is common ground and is not disputed by Mr. Setalvad, the learned counsel for the respondent-State, that the jurisdiction of the court to examine the accused conferred by this sub-section is solely for the purpose of enabling him to explain the circumstances appearing in the evidence against him. Consequently it will follow that if there is no evidence there cannot be circumstances appearing in that evidence against him which he can or need be called on to explain with the result that the court would not have jurisdiction to examine the accused at that stage. The point, therefore, resolves itself into the meaning of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferring to the rest of this sub-section to ascertain what light this throws on the continued maintenance of this dichotomy. The last place where the word 'evidence' occurs in the sub-section is the passage reading 'such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial'. It is clear here the word 'documents' denotes the documents referred to earlier, namely those in s. 173 and these are again distinguished from 'evidence'. Here also there cannot be any doubt that the word 'evidence' is a reference to the evidence recorded under sub-s. (4)-and which has already been referred to in the opening words of the sub-section and this also we might say was not disputed by Mr. Setalvad. Pausing here and taking up sub-s. (7) the distinction between "evidence" in the sense of oral evidence recorded under sub-s. (4) and the documents under s. 173 is again seen to be maintained with rigor for the phraseology adopted in that sub-section is "upon such evidence being taken, and such documents being considered". With the phraseology employed in sub-section(4), two out of three places in sub-ss. (6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er a prima facie case has been made out against an accused person justifying his being committed to take his trial, oral evidence recorded under sub-s. (4) and the documents referred to in s. 173 and filed before him. If on a proper construction of sub-s. (6), it is held that in the event of one type of material being placed before the Court viz. oral evidence, the accused shall be questioned in order to explain the circumstances appearing against him on that material-the provision discloses no lacuna. On such a construction it would mean that the accused is not to be questioned if no such evidence has been recorded in the case and is present before the Magistrate. Nor are the learned Judges right in saying that the words 'given the accused an opportunity to be heard' involve an examination of the accused. These are words of common occurrence in the Code and elsewhere and mean an opportunity to submit reasons for the acceptance of the Court. They do not refer to questions and answers which must be recorded verbatim and made part of the record, and which could be used as evidence under s. 287 of the Code. In the context they are capable of meaning only hearing the arguments or submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-s. (6), as well as in sub-s. (7). In the circumstances we attach no importance to the absence of the word 'such' and the use instead of the word 'the' in the relevant clause. The definite article 'the' obviously in the context refers to the 'evidence' already referred to in the opening words of the sub-section, namely that recorded under sub-s. (4). It is the same evidence which is again referred to in the third place where that word is used in the concluding part of that subsection. The rule of interpretation which is applicable was stated by Lord Radcliffe-"the meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a Court of law is to find the natural meaning of the words in the context in which they occur, the context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. "(1) Mr. Setalvad's next submission was based on a comparison of sub-s. (6) of S. 207-A with sub-s. (2) of S. 251-A. In this connection stress was laid on the fact that both ss. 207-A and 251 -A were introduced by the 'same enactment-Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination, if any. It is to be noticed that when the framers of Act 26 of 1955 referred to the documents unders. 173, they are both in s. 207-A, as well as in s.251-A referred to as 'documents' and not as evidence. Added to this is the circumstance that when s. 251-A(2) empowers the court to examine the accused it not merely does not use but scrupulously avoids the use of the expression 'evidence'. It does not make such examination compulsory mark the words 'if any'-and does not even refer to the documents at all. In this connection it may be pointed out that when the Bill 20-B of 1954 which later became Act 26 of 1955 emerged from the Select Committee, the relevant words in s. 207-A(6) were identical with those which are now found in s. 251-A(2) i.e., without the use of the word 'evidence' and without even an indication of the purpose for which the court was empowered to examine the accused. It was during passing of the Bill in Parliament that sub-s. (6) was amended so as to read as it does at present. This, in our opinion, is a circumstance which shows that the word 'evidence' was not used by error or inadvertently but that a deliberate change was intended from the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the fact that under s. 207-A the documents referred to in s. 207-A(3) are treated as material upon which the court might arrive at the conclusion that a prima facie case has been made against the accused, it was submitted that there was no impropriety in referring to these documents as 'evidence'. We are not impressed by this argument. Perhaps it might not be a great objection that the expressions are defined in s. 3 only for the purpose of Indian Evidence Act and this, we would add, is merely the dictionary meaning of the word. The more serious objection is the use of this definition for the purpose of importing probative value to the documentary evidence which might be inadmissible or irrelevant or prohibited by law and in any event not proved so as to permit a court to look into, them for basing any judicial decision apart from any statutory provision to the contrary. If the expression 'evidence' is used throughout the Criminal Procedure Code as meaning judicial evidence i.e., oral evidence tested- by cross examination, if any and documentary evidence which has been proved and which has been held to be relevant and admissible, it would, to say the least, be a strange use of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke into consideration both these as affording material for committing the accused. If the text of the statute is clear there might be no escape from the duty of the court to give effect to it. But the word 'evidence' in the context and even otherwise is incapable of the construction for which the respondent contends. If so, this argument has no basis to support it. If, however, there were an ambiguity, and the word was reasonably capable both of a narrower and a wider construction, the court would, no doubt, be justified in adopting that construction which would further the purpose of the provision and promote the cause of justice. In order to attract the application of this rule of construction, the court would have to be satisfied that the words if so construed should always operate in favour of the accused. What we have said earlier about the effect of an examination of the accused without there being 'evidence' against him with reference to s. 342(1) of the Code would be apposite in this connection. It is in this context that we have the situation in the present case where the accused do not desire to be examined and are resisting the questions being put to them on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile he is not to be required to commit himself by his answers in respect of matters which would be proved against him only at the trial and as regards which he would be examined later under s. 342(1) of the Code, and be examined about documents which may never be moved later. Interpreted otherwise the section would give a good chance for a fishing expedition and of modulating the prosecution case to destroy the accused's explanation at the appropriate stage. It was however suggested that if an accused found it inconvenient to answer any of the questions put to him, there being no legal obligation on the accused to do so, he might as well decline to answer them since he could not be held liable for refusing so to do. But this argument, however, ignores the fact that an inference adverse to the accused might be drawn from his refusal to answer. Among the illustrations given in s. 114 of the Indian Evidence Act is one which reads: "The Court may presume- (h)"that, if a man refused to answer questions which be is not compelled to answer by law, the answer, if given, would be unfavourable to him;" The court would, therefore, be justified in drawing this inference from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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