KESHAVLAL PEHHALABHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners, who were the original accused Nos. 1 and 2, were charge- sheeted to the Court of the City Magistrate, Ahmedabad. They were accused of offences punishable under Sections 420-120B of the Indian Penal Code. The case was instituted upon a police report. On 11th January, 1967, it was ascertained that copies of the police-papers, referred to in Section 173 of the Civil Procedure Code were furnished to both the accused and the case was adjourned to 12th January, 1967 for the statement and charge by the learned City Magistrate, Ahmedabad, Mr. H. K. Damani. On account of the sick-note of the Defence advocate, the case was adjourned to 16th January, 1967 for the above said purpose. On that day, the learned City Magistrate framed the charge, Ex. 2 against the present petitioners for the aforesaid offences. The statements of the accused were recorded and the case was adjourned to 23rd January 1967 for evidence. On 23rd January, 1967, the petitioner No. 1, Bhikhabhai gave an application No. M/20 that one Suryakant Ashalal has filed a complaint against his Bhilchabhai wherein allegations have been made regarding the factum of a person having been cheated for an amount of Rs. 92,000/-. A private complaint is filed and the first information report has also been lodged with the police in regard to that very matter and the police case has been filed. One offender cannot be tried on the same facts in the two proceedings referred to above. A Civil Suit has also been filed for the alleged dues in regard to that amount. The said petitioners should, therefore, be acquitted. Another application No. M/21 was filed by the petitioners on the same day stating that a dispute arising in this Criminal Case and the Civil Case is the same and hence, this Criminal Case should not be proceeded with further, till the Civil Suit is decided. On that very day, the Police Prosecutor filed a report No. M/22, stating that the amount involved in cheating, was to the tune of Rs. 92,000/-. The charge has already been framed. Taking into consideration the seriousness of the Criminal Act, complained of, the learned Magistrate would not be in a position to award adequate punishment. He , therefore, prayed that the case should be committed to the Sessions Court for the trial of the offences in question. The learned Magistrate on 23rd January, 1967 adjourned the case to 30th January, 1967 for evidence. On 30th January 1967 he heard the advocates and adjourned the case to 31st January, 1967 for orders. On 31st January, he passed the committal order (Ex.4) which is the impugned order, and ordered that both the accused were committed to the City Sessions Court, Ahmedabad to stand trail for the offences punishable under Sections 420-120B of the Indian Penal Code. He rejected the two applications, filed by the petitioners, referred to above. Another application was filed on behalf of the petitioners to give time to them so that they can file a revision petition in regard to their prayer of staying the matter till the Civil Suit is decided. The application was rejected on the ground that the committal order has already been passed by the learned Magistrate. Being dissatisfied with the impugned order regarding the committal of the accused to the Sessions Court for trial, the petitioners have preferred the present application under Section 561A of Civil Procedure Code.

(2.) Shri H. K. Thakore, the learned Advocate for the petitioner contended that it was evident that the learned City Magistrate had proceeded with the case by adopting the procedure prescribed for the trial of a warrant case. It is an admitted position that both the offences in question were triable by the learned City Magistrate. The procedure prescribed under S. 251A of the Criminal P. C. Was followed. Charge was accordingly framed after perusing the papers referred to, in Section 173 of the Civil Procedure Code. The case was adjourned for recording evidence after the charge was framed. The petitioner filed certain applications. The Police Prosecutor filed an application, that taking into consideration the amount involved, the learned Magistrate would not be in a position to award adequate punishment to the petitioners, if they are found guilty of the offences they are charged with Shri Thakore, the learned Advocate, appearing on behalf of the petitioners, conceded to the position that in view of the provisions of Section 347 of the Civil Procedure Code, the Magistrate is empowered to commit the caused to the Sessions Court for trail of the offences which are triable by the Magistrate if he his of opinion that he will not being a position to award adequate punishment. It would be done at any stage of the trial, but at the same time, the Magistrate has to commit the accused under the provisions therinbefore contained. He, therefore, contended that in case the Magistrate decides that he is not on position to award adequate punishment and the case requires to be committed to the Sessions Court, he has got to follow the provisions contained the Civil Procedure Code. If it is a case constituted otherwise then on a police report, the provisions contained under Section 208 to 213 have to be followed. The present case was a case instituted on a police report. He , therefore, urged that the learned Magistrate was bound to follow the provisions of Section 270A of the Civil Procedure Code prior to his making of an order of committing the accused to the Sessions Court for the trial of the offences in question. He also invited my attention to the provisions of Section 251A and the provisions of Section 207A to indicate the material difference that was found in these two provisions. He contended that in view of certain material difference, to which I will refer to , at a later stage, the petitioners would not get certain opportunities which they could have availed of , if the provisions of Section 207A has been followed. That would cause prejudice to the petitioners. The order of committal passed by the learned Magistrate without following the provisions of Section 207A and by his straightway making an order of committal, is illegal. It cannot be sustained in law. This illegality or even if it is found to be an irregularity, could not be cured by the provisions of Section 537 of the Civil Procedure Code, it was not necessary to show that such an irregularity resulted in the prejudice of the accused. He invited my attention to two decisions. Arunachalam Swami v. State of Bombay, AIR 1956 Bom 695 and Chhandamilal Jain v. State of Uttar Pradesh, AIR 1960 SC 41, in support of his argument and urged that the order of committal be quashed. In reply to this argument, the learned Government Pleader, Mr. Sompura contended that on a perusal of the provisions of Section 207A, sub-section (4) and sub-section (9) on which reliance has been placed mainly by the learned Advocate Mr. Thakore, it appears that no right is given to the accused. The Court has ben given a discretion to examine the witnesses referred to, in that section, if he is of opinion that they should be examined. In regard to the question of giving of a list of defence witnesses to be summoned, no prejudice would be caused to the accused as this Court can mend that matter by giving necessary directions to the Sessions Court to take the list of witnesses from the accused before a trial beings and to summon those witnesses.

(3.) Before I advert to the arguments advanced on both the sides, it will be proper first to refer to the material section 347 of the Civil Procedure Code, which will be hereinafter to , as the Code. The material part of it runs as under:-