STATE Vs. LEKH RAJ FAQIR CHAND

JUDGEMENT

(1.) THIS case has been reported by learned Additional District Magistrate, Ambala, and the main question, which arises for determi nation, is whether the provisions of Section 190 (1) (e) of the Code of Criminal Procedure (herein after referred to as the Code) apply when a Magistrate makes an order against a person under Section 351 of the Code. It has arisen in the following circumstances:-2. A chalan under Section 420 and 406 of the Indian Penal Code was presented in the Court of Judicial Magistrate, Ambala City, by Naraingarh police against Lekh raj and Baldev Singh accused on 13th March 1964. The learned Magistrate framed charge under two heads against both the accused on 2nd April 1964. One of the heads of the charge in English was under Section 420 read with Section 34 of the Indian Penal Code, while the language of the other head of the charge showed that it was under Section 406 of the Indian Penal Code, though that section was not specifically mentioned. The charge framed in Hindi was still more defective because it did not contain either the facts or the section of the Penal Code. Statements of 14 witnesses were recorded and the case was adjourned to 4th July 1964, for recording the evidence of the remaining prosecution witnesses. Subhash chander was one of the witnesses who was to be examined on behalf of the prosecution on 4th July 1964. On that date Baldev Singh accused made an application praying that Subhash Chander be not examined as a witness but he be proceeded against under Section 351 of the Code, which reads as under:--"351 (1 ). Any person attending a criminal Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court can take cognizance and which, from the evidence, may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. (2) When the detention takes place in the course of an inquiry under chap. XVIII or after a trial has been begun, the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard. " the learned Magistrate passed an order on that application that Subash Chander, whose name had been mentioned by a number of witnesses as the executant of some receipts and the recipient of money should stand trial along with the other two accused. As the learned Magistrate appears to have been of the view that he was taking cognizance of the case against Subash Chander under Clause (c) of sub-section (1) of Section 190 of the Code he adjourned the case to 9th July 1964 for recording the statement of Subash Chander under Section 191 of the Code. Sub-section (1) of Section 190 and Section 191 at the relevant time read as under:-

(2.) BEFORE the learned Additional District Magistrate argument was advanced on behalf of Baldev Singh accused that as the trial Magistrate had proceeded under section 351 of the Code against Sub-hash Chander, Sections 190 (3) (c) and 191 did not apply and the trial Court itself should have proceeded with the trial after framing charge against all the accused. This contention found favour with the learned Additional District Magistrate. He has, accordingly, recommended that the order of the trial Magistrate in this respect be set aside and the case be sent back to him. Guidance has also been sought on the point as to whether the trial in the case should proceed in accordance with Section 251-A of the Code which prescribes the procedure to be adopted in cases instituted on police report.

(3.) I have heard Mr. Shahpuri on behalf of Baldev Singh, Mr. J. S. Chawla on behalf of Subhash Chander and Mr. G. S. Chawla on behalf of the State, who have supported the recommendation to (of?) the Additional District Magistrate- that clause (c) of Sub-section (1) of Section 190 and Section 191 of the Code do not apply to this case. The recommendation has, however, been opposed by Mr. Vinaik on behalf of Lekh Raj, and after listening to the learned counsel for the parties I am of the view that the recommendation of the learned Additional District magistrate should be accepted.