KAKKOPPURATH VALAPPIL SIVAPRASAD Vs. STATE OF KERALA

JUDGEMENT

(1.) THE committal order passed by the learned Sub Magistrate of Cannanore in P. R. Case No. 8/71 is challenged before me on the ground that in passing the order the learned Magistrate has not complied with the mandatory directions contained in Section 207-A of the Code of Criminal Procedure. Section 207-A (4) provides that the Magistrate, after the accused has appeared before him and has satisfied himself that the documents referred to in Section 173 have been furnished to the accused shall proceed to take evidence of such persons, if any, as may be 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 any one or more of the other witnesses for the prosecution he may take such evidence also. Four witnesses were produced by the prosecution on 24. 5. 1971; but none of them was examined. From the diary extract of the court it is seen that a legal point was raised and the point was that "since there are no eye-witnesses to the occurrence, whether the court should examine the other witnesses". Even if there are no eye-witnesses the Magistrate is given the discretion to examine the other witnesses produced and this discretion has to be judicially exercised. That apart, one of the 4 witnesses produced was the first informant who was an eye-witness to the occurrence as is seen from the F. I. statement itself. The following extract from the F. I. statement will bear this out. He has stated: Krishnan Nambiar (Krishnan Nambiar is the deceased in this case) seized the key from my hand and went towards the gate. I also went behind. Then they were entering by dismantling the gate. They caught hold of Krishnan Nambiar and started hitting him with spears. Krishnan Nambiar raised cries. I got frightened and went home. According to the learned Magistrate, this witness cannot be treated as an eye-witness, since he has not spoken to the actual commission of the murder. When a witness swears to the acts which led to the murder. I fail to understand how could he be said to be not an eyewitness to the occurrence. It is surprising that on behalf of the prosecution it was submitted before the learned Magistrate that there are no eye-witnesses to the occurrence. The learned Magistrate observes in para 3 of his order. At this juncture the prosecution submitted that in this case there are no actual eye-witnesses and the evidence sought to be adduced by the prosecution is mainly one of circumstantial evidence and therefore the prosecution prays that this case may be committed on perusal of the documents under Section 173 (4) Cr. P. C. as there are no occurrence witnesses to be examined in this case. Section 207-A does not limit the power of the Magistrate to examine eye-witnesses alone. If the Magistrate is of opinion that in the interests of justice it is necessary to take the evidence of other witnesses also he is at liberty to do so. On behalf of tine prosecution it is submitted that the committal order has been passed by the learned Magistrate after perusing the documents under Section 173 (4) of the Code. But I do not see anything in the order which would ensure that the records in the case at least were carefully considered by the Magistrate in passing the committal order. The Supreme Court has observed in Ramnarayan v. State of Maharashtra that: The object underlying the procedure prescribed by Subsections (4), (6) and (7) is to determine, after the accused has been apprised of the nature and the details of the prosecution case together with the evidence oral and documentary on which the case against the accused is sought to be proved, whether there is a prima facie case against the accused which should go before the court of Session for trial. In the performance of his functions the Legislature has made it obligatory upon the Magistrate to record evidence tendered, or appearing to him necessary, to consider the documents produced and to give the prosecutor and the accused opportunity of being heard. The Magistrate is also authorised to examine the accused, if necessary, for the purpose of enabling him to explain any circumstances in the evidence against him. The power is in terms discretionary that is made clear by the use of the expression 'if necessary' but the discretion must be exercised on sound judicial principles having regard to the purpose of the inquiry which is to judicially ascertain whether there is a prima facie case made out against the accused for commitment. . . . 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 Section 164 and Section 161 (3 ). . . . 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. (In the present case the confessional statement of one of the accused is seen to have been recorded under Section 164 of the Code; but no opportunity was given to him under Section 342 of the Code to explain that circumstance, nor was any opportunity given to his advocate who addressed the arguments. From the diary extract itself it is seen that no opportunity was given to the accused of being heard ). 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 accused for explaining circumstances appearing against him must be restricted to circumstances appearing from the oral evidence, whereas in making an order of commitment or discharge, the Magistrate may take into consideration the documents referred to in Section 173 (4) as well as the oral evidence recorded in Sub-section (4) of Section 207-A and afford an opportunity to the prosecutor and the accused of being heard on the entire record. . . . The circumstances appearing against the accused would in a large majority of cases be from the statements recorded tinder Section 161 (3) or under Section 164, and other documentary evidence but if the accused Sis not to be given an opportunity to explain these circumstances, to a large extent the judicial character of the proceedings would be impaired, for in determining whether the record discloses a prima facie case against the accused justifying an order of commitment to the Court of Session for trial, examination of the accused for the purpose of enabling him to explain any circumstances appearing against him only from the oral evidence and not from the documents referred to in Section 173 (4) would fail to give to the Magistrate a complete picture of the case. The learned Magistrate, as seen from his entry in the diary extract, questioned the accused, only formally. The extract shows "formal questions put" What the Magistrate really means by 'formal questions' is not clear. From the nature of the questions put by him, no questions seem to have been put touching on the 164 statement of the accused; thereby the accused was deprived of the opportunity to explain that circumstance which is one clearly against him. The learned Magistrate seems to have blindly acted on the statement of the prosecutor that no witnesses need be examined. As observed in Kirpal Singh v. State of Uttar Pradesh : A Magistrate acting under Section 207-A of the Code is not to be guided by the attitude of the prosecutor. It is the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged. The accused is very much aggrieved on account of the fact that no opportunity was given of being heard. This Court has observed in Thankappan Nair v. State of Kerala 1962 Ker LT 614 : 1963 (2) Cri LJ 290 that: On a close scrutiny of the section it would be seen that the section enjoins on the Magistrate to give the prosecution and the accused an opportunity of being heard before deciding whether there are or not sufficient grounds of committing the accused for trial. The hearing is given to the accused in order to enable him to show cause why he should not be committed for trial. The Magistrate is, therefore, under an obligation to give a hearing to the accused so that the accused may be able to satisfy him that sufficient grounds do not exist for committing him to the Sessions Court. . . . The Magistrate is, therefore, bound to hear the explanation of the accused In regard to circumstances appearing in the documents referred to In Section 173 and if the Magistrate questions the accused for the purpose of enabling him to explain any circumstances appearing In the documents referred to in Section 173 he cannot be said to have gone out of his way or to have committed any error of law.

(2.) FROM the above consideration of the point I am satisfied that Subsections (4), (6) and (7) of Section 207-A have not been complied with by the learned Magistrate and the order of committal cannot be allowed to stand. Normally the High Court in a revision application filed against the order of commitment under Section 207-A does not enter upon a reappraisal of the evidence on which the order of commitment is made. Interference in revision is justified only where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged, where there is no evidence on which the order of commitment could be made, where there has been denial of a right to fair trial where there is reason to think because of failure to comply with the rules of procedure or conditions precedent to initiation of criminal proceedings. . . and on similar other grounds. Vide Alamohan Das v. State of West Bengal. In the case before me I have no hesitation to observe that there has been failure to comply with the rules of procedure.

(3.) I would, therefore, set aside the order of committal and send back the case to the learned Magistrate for a fresh enquiry according to law and pass appropriate orders.