SUDHIR KUMAR SADHUKHAN Vs. S N MITRA

JUDGEMENT

(1.) Points for determination in this revisional application are whether in a warrant case instituted otherwise than on a police report the court should allow cross- examination on behalf of the accused of witnesses before framing of charge and whether the court should give to the accused an opportunity of being heard at that stage. The learned Magistrate has decided both the points against the petitioner who happens to be one of the accused in a case started on the complaint of the opposite party No.1 alleging offence punishable under certain provisions of the Prevention of Food Adulteration Act.

(2.) Regarding the first point the learned Magistrate has relied upon a decision of this Court in Kalyan Lahiri v. The State, wherein a prosecution witness who was examined before framing of charge had subsequently died and could not, therefore, be tendered for cross-examination after the charge was framed. In such circumstances it has been held that the evidence given in the examination-in-chief before charge was not admissible under section 33 of the Evidence Act because the accused had no right to cross-examine the witnesses at that stage. It is no doubt true that the accused cannot claim any right to cross-examine the witnesses before charge, but this decision is by no means an authority for the proposition that the court has no power to allow an accused to put questions by way of cross-examination before charge and indeed it should be allowed as a matter of natural justice and fair play. This question had come up for consideration before different High Courts and a Division Bench of Allahabad High Court in Banwari Lal and another v. State, has held that evidence means all statements which the court permits or requires to be made before it by witnesses and includes statements made in cross-examination and reexamination and there was nothing in section 252 of the Code of Criminal Procedure, 1898, which corresponds to section 244 of the Code of Criminal Procedure, 1973, to suggest that evidence means only the statements made by the witnesses in examination-in-chief. In a very old case In re: Muthiah Chetty Madras High Court has taken a similar view and interferred in re-vision to cancel a charge which was framed after refusing the accused to put questions to the prosecution witnesses by way of cross-examination. A Full Bench of Sind Judicial Commissioners Court in Md Rahim v. Emperor, also held that an accused could cross-examine a witness before charge under section 252, Code of Criminal Procedure, 1898, because evidence included not only examinationin-chief but also cross-examination and re-examination. In coming to this decision the Full Bench relied upon the meaning of word evidenceT as explained in several decisions of different High Courts. Nacjiur Hicjh Court in Gurudin and another v. Emieror, has held that an accused can cross-examine prosecution witnesses before charge. Therefore, there is no doubt that the judicial authorities favour the view that an opportunity for cross-examination of witnesses before charge should be given to the accused. In this connection it is pertinent to refer to the case of R. S. Nayak v. A. R. Antulay, wherein witnesses for the prosecution were cross-examined before charge and in some cases at great length and their Lordships had observed that the learned trial Judge should have proceeded to scan the evidence. Their Lordships gave no direction whatsoever to keep the statements in the cross-examination out of consideration and never disapproved the practice of allowing an accused to cross-examine prosecution witnesses before charge. In such circumstances even though this Court cannot bold, looking to the Bench, decision of this Court in Kalpana Lahiri v. The State (supra), that an accused bas right to cross-examine a witness before charge, still it can be said that should an accused desire such cross-examination the court can and indeed should allow him to do so save in exceptional circumstances. In the instant case it has been found that as a matter of fact two witnesses examined on behalf of the prosecution were allowed to be cross examined before charge and after giving such an opportunity for cross-examination it was improper for the learned Magistrate to exclude such evidence from consideration at the time of framing of charge.

(3.) The question whether the Court should give to the accused an opportunity of being heard at the time of framing of charge must also be decided in favour of the petitioner. The learned Magistrate was of the opinion that since there are specific provisions for hearing the accused at the time of framing of charge by a Sessions Judge or by a Magistrate trying a warrant case instituted on a police report as laid down in sections 227 and 239, Cr. P. C. respectively, the absence of a corresponding provision in the trial of a warrant case instituted otherwise than on a police report was significant and suggested the legislative intent that an accused in such a case cannot have any opportunity to address the Court. Since consideration of natural justice demands that a person about to be charged with the commission of an offence should be given liberty to have his say in the matter, the learned Magistrate need not have embarked upon an enquiry about the intention of the legislature. It would be outrageous if a person is shut out by a judicial tribunal and charged him with the commission of an offence. It may be noted that there is no provision in the Code of Criminal Procedure which expressly obliges a Magistrate to give an opportunity to an accused to advance argument after conclusion of prosecution and defence in a warrant case whether instituted on a police report or otherwise. But it has never been held or even contented by any Prosecutor that such an opportunity should be denied to the accused. Even an executive authority like a Collector appointed under the Essential Commodities Act making an order for interim disposal of seized commodity under section 6-A(2) of the said Act has to hear the person interested, as held by this Court time and again, although there is no express statutory provision to that effect. On analogous consideration it should be held that an accused in a warrant case instituted otherwise than on a police report must be given an opportunity to address the court at the time of framing of charge.