SERIVERI KOTISWAMY Vs. STATE OF ANDHRA

JUDGEMENT

(1.) These revision petitions have been filed under sections 435 and 439, Criminal Procedure Code, by the different acpused in several preliminary inquiry cases, questioning the orders committing them for trial before Courts of Session. Except in Criminal Revision Case No. 349 of 1956 in which the commitment was ordered by an Additional District Magistrate in the exercise of his powers of revision under section 437, Criminal Procedure Code, all the orders of commitment were made by the Magistrates under sub-section (10) of section 207-A, Criminal Procedure Code. In all the revision petitions a common point of law is raised that section 207-A, Criminal Procedure Code, which was newly inserted in the Code by the Amendment Act XXVI of 1955, is void as it is inconsistent with Article 14 of the Constitution. The contention is that the two kinds of procedure prescribed by section 207 for committals, one under section 207-A for such inquiries instituted on police reports and the other under sections 208 to 213 for such inquiries in all other cases, discriminate between like accused persons in like circumstances and that the more drastic procedure prescribed by section 207-A is violative of equality before the law and of equal protection of law guaranteed by Article 14 of the Constitution.

(2.) There can be no doubt that, as between the two kinds of procedure for commitment, the procedure specified in section 207-A is more prejudicial to the accused in the sense that it tends to deny him chances of a discharge, without being placed for trial before a Court of Session. The entire scope of the inquiry under section 207-A is different from that under sections 208 to 213. Under section 207-A, the Magistrate has to form an opinion as to whether there are no grounds for committing the accused person for trial or whether he should be committed for trial. Under sections 209, 210 and 213 the Magistrate has to satisfy himself as to whether or not there are sufficient grounds for committing the accused person for trial. Not only is there a difference in the object of the inquiry, but also there is a difference in the materials upon which the Magistrate has to form his conclusions.Under subsections (6) and (7) of section 207-A, the Magistrate has to take into consideration not only the evidence adduced before him but also the documents referred to in section 173, that is to say, the entire evidence which the prosecution proposes to let in at the trial, whether or not it is adduced before him. On the other hand under sections 209, 210 and 213, the Magistrate has to come to a decision on the evidence which has been adduced before him. Under section 207-A, there is no obligation on the prosecution to let any evidence at all before the Magistrate. Sub-section (4) requires the Magistrate only " 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 ". This is consistent with the position under sub-sections (6) and (7) that the function of the Magistrate at the inquiry is to consider the effect of the evidence which the prosecution is likely to adduce at the trial and not to confine himself to a consideration of the evidence which the prosecution let in before him. Unlike under section 208, the accused has no right under section 207-A to adduce evidence in defence. Nor has he a second opportunity to adduce evidence on his side, as under section 213, for the purpose of avoiding his being placed on trial. If the prosecution does not choose to produce any of its witnesses and if the accused wants to show that the evidence likely to be adduced at the trial is unworthy of credit, he can only invoke the powers of the Magistrate under the second part of section 207-A (4) to take the evidence of the prosecution witnesses " in the interests of justice ". Even if the accused is in possession of evidence to disprove the prosecution case against him, such as an unimpeachable alibi, section 207-A does not provide for his letting in that evidence and he can only have recourse to the Magistrate's discretionary powers under section 540, Criminal Procedure Code. The clear object of the Legislature in enacting section 207-A is that in cases which have to be tried by a Court of Session and which have been instituted on police reports, the accused should be placed on trial merely if the Magistrate concurs with the police officer that the evidence, which the prosecution proposes to adduce at the trial, is likely to make out the offence. But in all other cases which have to be tried by a Court of Session, the Magistrate has to take evidence and judicially determine whether the evidence is sufficient to place the accused on trial.

(3.) The question is whether this classification of cases triable by a Court of Session offends Article 14 of the Constitution. The relevant nature of the inhibition under Article 14 cannot be better expressed than in the words of His Lordship Das, J., (as he then was) in Budhan Choudhry v. State of Bihar, 1955 S.C.J. 163. The learned Judge said :