NAROTAMDAS L. SHAH Vs. PATHAK NATHALAL SUKHRAM

JUDGEMENT

(1.) THIS reference raises an important question of law on which there is a divergence of opinion amongst the High Courts in India. The applicant Narotamdas Shah was prosecuted for defamation under Section 500, Penal Code, in the Court of the First Class Magistrate, Junagadh. After some prosecution witnesses were examined the Magistrate was transferred and was succeeded by another Magistrate, and the accused having then demanded that the witnesses be resummoned and reheard, the learned Magistrate held that under Clause (a) of the proviso to Section 350(1), Criminal P.C., an accused person can demand resummoning of witnesses as a matter of right in a trial and not in an enquiry, and that the case against the accused was only at the stage of an enquiry inasmuch as the charge had not been framed, and he, therefore, refused to resummon the witnesses. The accused having applied in revision, the Sessions Judge was of the opinion that the Magistrate's order was not correct and he made the reference in view of the difference of Judicial opinion on the point.

(2.) THE question turns entirely on the construction of Section 350, Criminal P.C., the point being when, in a warrant case, the trial commences that is whether it commences as soon as the accused appears or is brought before the Magistrate and the Magistrate proceeds to hear the case, or whether it commences only after the charge is framed. Now under Section 350(1) the succeeding Magistrate has a discretion either to act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself; or to resummon the witnesses and recommence the enquiry or trial. The Magistrate can exercise this discretion either in an enquiry or in a trial, but the accused can demand the resummoning of witnesses and rehearing them only in a trial. Therefore so far as trial is concerned, the exercise of the Magistrate's discretion is subject to the abovesaid right of the accused. The Magistrate's discretion is further subject to Clause (b) of the proviso under which the High Court or the District Magistrate, as the case may be, may set aside the conviction passed on evidence not wholly recorded by the succeeding Magistrate, if such Court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new enquiry or trial. This right of the High Court and the District Magistrate, it may be noticed, is both as to enquiry and trial. Now the Criminal Procedure Code contemplates proceedings which are purely an enquiry and those which are a trial and it has observed this distinction at various places in the Code. 'Inquiry' is defined in Section 4(k) as including every inquiry other than a trial conducted under this Code by a Magistrate or a Court. A trial is not defined in the Code. A proceeding under Chapter 8 is an 'inquiry' - Charan Mahto v. Emperor AIR 1930 Pat 274 (A). Chapters 12 and 18 of the Code also relate to inquiry, the former being in respect of disputes as to immovable property & the latter in respect of cases triable by the Court of Sessions. Chapter 20 deals with the trial of summons cases, Chapter 21 with the trial of warrant cases and Chapter 22 with summary trials, so that the proceedings relating to summons cases, warrant cases and offences triable summarily are designated as trials by the Code itself. Section 251 of Chapter 21, which is relevant, says that the following procedure shall be observed in the trial of warrant cases. Section 252 provides that when the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. Under Section 253 the Magistrate shall discharge the accused if, upon taking all the evidence and examining the accused, he finds that no case has been made out which, if unrebutted, would warrant a conviction. If the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge against the accused, and if the accused pleads guilty to the charge, the Magistrate may, in his discretion, convict him thereon. Section 256 prescribes the procedure where the accused refuses to plead or does not plead or claims to be tried, and if the accused wishes to cross -examine any of the prosecution witnesses, the witnesses shall be recalled and cross -examined and re -examined if necessary. These are in the main the important provisions of Chapter 21. However there is nothing in the Chapter to suggest that the proceedings in a warrant case are an enquiry upto a certain stage, viz., the stage of framing a charge, and that after the charge is framed they assume the role of a trial, and a distinction of this kind is not warranted by the provisions of the Chapter. The heading of the Chapter also speaks of the trial of warrant cases, and a comparison between it and the heading of Chapter 18, which is 'inquiry into cases triable by the Court of Sessions or High Court', indicates that the proceedings in a warrant case are of the character of a trial, and not an inquiry. Section 252 indicates that the trial begins as soon as the accused appears or is brought before the Magistrate and the Magistrate proceeds to hear the evidence. Simply because the Magistrate may not frame a charge and discharge the accused, it will not mean that the proceedings till that stage are a mere inquiry. Discharge is a valuable right and it is only fair to the accused that the succeeding Magistrate should hear all the evidence himself and judge whether it was sufficient for framing a, charge against the accused. It is another matter when the accused does not demand the resummoning and rehearing of witnesses, and in that case the Magistrate may proceed to frame a charge on evidence heard by his predecessor or partly heard by his predecessor and partly heard by himself. No doubt stress has been laid down in some of the reported decisions on the provisions of Section 256 in support of the view that the proceedings become a trial when the accused claims to be tried, but the words 'claims to be tried' ought to be read in the context in which they appear. On a charge being read and explained to the accused the accused either pleads guilty or refuses to plead or does not plead or claims to be tried, and it should not make any difference to the proceedings because the accused claims to be tried. That is only part of the trial which has commenced already. Again it may be noticed that this right which Section 256 gives to the accused is to further cross -examine the witnesses, which is not the same as examining them de novo, which latter right is conferred on him by Clause (a) of the proviso to Section 350(1).

(3.) NOW in the Criminal Procedure Code of 1872 an 'inquiry' was defined as follows: Inquiry includes any inquiry which may be conducted by a Magistrate or Court under the Act. Trial was defined thus: Trial means the proceedings taken in Court after a charge had been drawn up and Includes the punishment of the offender. It includes the proceedings under Chapters XVI and XVIII from the time when the accused appears in Court. Chapters 16 and 18 of the said Code dealt with summons cases and summary trials respectively. In the Code of 1882 the definition of trial was omitted and inquiry was defined thus: Inquiry includes every inquiry conducted under this Code by a Magistrate or a Court. In substance it was the same as in the Code of 1872. In the Code of 1898 also trial is not defined and inquiry is defined as: Inquiry includes every inquiry other than a trial conducted under this Code by a Magistrate or a Court. The omission of the definition of 'trial' both in the Code of 1882 and of 1898 should lead to a reasonable inference that 'trial' was to embrace proceedings in a warrant case from the inception and not proceedings only after the framing of the charge, and further that Section 350 was not intended to confer a right on the accused to have the Witnesses resummoned and reheard only when a