KESHAVLAL PEHALADBHAI 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 secs. 420 120 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 sec. 173 of the Criminal 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 this Bhikhabhai wherein allegations have been made regarding the factum of a person having been cheated for an amount of Rs. 92 0 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 0 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 are committed to the City Sessions Court Ahmedabad to stand trial for the offences punishable under secs. 420 120 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 sec. 561 of the Criminal Procedure Code.

(2.) Shri H. K. Thakore the learned Advocate for the petitioners 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 proceedings of the case indicated that the procedure prescribed under sec. 251A of the Criminal Procedure Code was followed. Charge was accordingly framed after perusing the papers referred to in sec. 173 of the Criminal Procedure Code. The case was adjourned for recording evidence after the charge was framed. The petitioners 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 sec. 347 of the Criminal Procedure Code the Magistrate is empowered to commit the accused to the Sessions Court for trial of the offences which are triable by the Magistrate if he is of opinion that he will not be in 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 therein before contained. He therefore contended that in case the Magistrate decides that he is not in a position to award adequate punishment and the case requires to be committed to the Sessions Court he has got to follow the provisions contained in the Criminal Procedure Code. If it is a case instituted on a police report he is required to follow the provisions of sec. 207A of the Criminal Procedure Code. If it is a case instituted otherwise than on a police report the provisions contained under secs. 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 sec. 207A of the Criminal 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 sec. 251A and the provisions of sec. 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 petitioner would not get certain opportunities which they could have availed of if the provisions of sec. 207A had been followed. That would cause prejudice to the petitioners. The order of committal passed by the learned Magistrate without following the provisions of sec. 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 sec. 537 of the Criminal Procedure Code. He even urged that in case of exercise of inherent powers by this Court under sec. 561A of the Criminal Procedure Code it was not necessary to show that such an irregularity resulted in prejudice to the accused. He invited my attention to two decisions Arunachalam Swami and others v. State of Bombay and another A.I.R. 1956 Bombay 695 and Chhadamilal Jain v. State of Uttar Pradesh and another A.I.R. 1960 Supreme Court 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 sec. 207A sub-sec. (4) and sub-sec. (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 been 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 begins 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 sec. 347 of the Criminal Procedure Code which will be hereinafter referred to as the Code. The material part of it runs as under :