TMI Blog1963 (12) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 must be committed by a M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 these provisions is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 considers it necessary to do so, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 any circumstances appearing in the evidence against him that the opportunity to be given to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven 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 recorded under sub-s. (4) of s. 173, and it would be difficult to regard only those documents which are duly proved, or which are admissible without proof as evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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 accused, if necessary, and to give the accused and the prosecutor opportunity of being heard. Under s. 251-A no provision is made for examination of witnesses before making an order under sub-s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent 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 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore 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 memorandum on July 27, 1963, opposing the prayer of the accused and submitting that the court might be pleased to examine the accused by asking each of them a few general questions so as to enable them to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 26 of 1955). By this enactment with a view to cut short the delay that was occurring in committal proceedings different procedures were prescribed for inquiry before a Magistrate of cases (a) where the case is triable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain 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 word evidence in the expression circumstances appearing in the evidence . During the course of the arguments, the word evidence has been stated to convey three distinct ideas: (1) Evidence of witnesses recorded under s. 207-A(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion 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) (7) it would require very strong and compelling reasons to hold that when words the evidence were used in the passage now in question they were employed in a different sense divorced from the dichotomy between evidence and documents which runs throughout these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submissions by the accused on the case or in regard to the documents where there has been no evidence of the type, mentioned in sub-s. (4). In this connection it has to be pointed out that when the accused is examined, the statement recorded by the Magistrate may be used as evidence against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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-Act XXVI of 1955, and both dealt with the procedure to be adopted in cases instituted on a police report. Sub-s. (2) of S. 251-A empowers the Magistrate to examine the accused, if necessary, in respect of matters appearing in the documents under S. 173(4). Section 251-A (2) reads: If, upon consideration of all the docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely 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 provision contained in s. 25 1 -A (2). That is an additional reason why we consider that the terms of s. 251-A(2) far from assisting the respondent in reality militate against the acceptance of the submission. We might, in this connection make a reference to another provision in the Code where the language now calling for construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erhaps 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 that word in the provision now under consideration that it means documents produced for the inspection of the Court . If it is used merely for the inspection of the court , it is obvious that the court could not on its terms base any finding on the contents of such a document, and in fact that would have been the position but for the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, 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 that such questions would lead them to give answers before they are fully aware of the details of the prosecution case and the manner in which it is proposed to use the documents under s. 173 or the precise construction which they place on the contents of the documents on which they propose to rely. The prosecution insists that it is in the interests of the accused tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulating 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 his refusal to answer. Whether or not a Court would do so, it is certain that if the accused refuses to answer when examined by the Magistrate at the committal stage, any explanation which he might offer at later stage could properly be characterised as an after-thought. In the circumstances it would not be correct to assume that the exercise of the power at this stage by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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