PALADUGU LAKSHMINARAYANA Vs. TADIBOYINA SURYANARAYANA

JUDGEMENT

(1.) This is an application to quash the commitment order of the Sub-divisional Magistrate of Tenali in C.C. No. 44 of 1931. There was an occurrence on 15 August, 1931. The Police filed a charge against one party which included a charge of murder. A counter-complaint was made and the Police tiled a referred charge sheet on the ground that the injuries found on the complainant were due to a right of private defence. In that case a private complaint was made to the Court and taken on file. The case charged by the Police was Pr. C. No. 3 of 1931. It was committed to the Sessions. The private complaint in the counter-case was taken up as a warrant case under Secs.147 and 323, Indian Penal Code. The Magistrate proceeded with it as a warrant case not only up to the framing of the charge but to the point of asking the accused to plead to it and whether they wished to recall and cross-examine the prosecution witnesses. The accused said that they wished to re-cross-examine all the prosecution witnesses and promised to furnish a list of defence witnesses. The Magistrate had discharged certain of the accused before the charge was framed under Section 253, Criminal Procedure Code. On 2nd February, 1932, however, he seems to have changed his mind and to have resolved to commit the accused to the Sessions as the case was counter to Pr. C. No. 3 of 1931. He did this on the authority of In re Krishna Pannadii. That Pr. Case No. 3 was posted for trial before the Sessions Court on 28 March and this case was posted on the 4 April, 1932. This petition to quash the commitment was presented on 23 March, 1932. An application for staying the Sessions trial of the other case (Cr. M.P. No. 318 of 1932) was put in on the 29 March. As that case was already under trial at that time I did not feel justified in granting any further stay than to direct a stay of judgment for one week. This order was made on 30 March, 1932 and that stay expires to-day. 1 understand that the case is posted for judgment on 8 April, two day hence.

(2.) I think there can be no doubt that the commitment in this case must be quashed for the simple reason that the accused had no opportunity of adducing their defence evidence before committal. The Code gives one opportunity to an accused to adduce evidence before the charge is framed and a second to get the charge set aside if he can induce the Magistrate to do so by further defence evidence after the charge. There is no doubt now with the omission of the words "he shall stop further proceedings" in Section 347, Criminal Procedure Code, that when a Court trying a warrant case determines to commit the case, it must follow the procedure in Chapter XVIII. See the remarks in In re Chinnavan (1904) 23 I.C. 734 and In re Damodaram (1929) I.L.R. 52 Mad. 995 : 57 M.L.J. 555. The learned Public Prosecutor did not contend that the commitment could be upheld, but it was argued by Mr. Ethiraj for the complainant in the present case that it must be shown that the accused had sustained prejudice. None of the cases quoted for this have I consider any bearing. Ram Ghulam v. Emperor is a case exactly similar to In re Chinnavan (1914) 23 I.C. 734. The whole trial had proceeded right up to the stage of the delivery of judgment. The accused therefore had been able to call the whole defence evidence and had had more opportunities of cross-examining the prosecution witnesses than they would have had under Chapter XVIII. It was therefore held that the commitment need not be quashed. Another case quoted is Bhat V/s. Emperor . That case can be distinguished from the present by the fact that it was found that the accused knew that the case would be committed though it was tried as a warrant case. Here, there could have been no such anticipation on the part of the accused. As I have remarked above, not only were they asked to plead to the charge but they were asked further whether they wished to recall and cross-examine the prosecution witnesses. The commitment I think must obviously be quashed. If the accused are to be committed, and if further proceedings under Chapter XVIII are to be continued, the question will arise as to whether the accused have the right of further cross-examining the prosecution witnesses. It is argued on their behalf that, as they anticipated that they would have an opportunity of cross-examining them after the charge, they did not do so as fully as they would otherwise have done. The learned Public Prosecutor quotes G.V. Raman V/s. Emperor (1929) I.L.R. 57 C. 44 to the contrary. I do not think, however, that case bears him out. In that case I gather though it is not clearly stated that when the very first witness was being examined, the Court said that it would treat the case as a committal case and not as a warrant case. That this decision could not have intended to lay down, that if the case were treated as a warrant case throughout and then committed, the accused would have no right of cross-examining, is clear from the remarks on page 54 where the Bench says: It is possible, and it generally so happens, that the Magistrate starts a. case before him with a view to try it himself; but in the midst of the trial, when certain facts have been disclosed, he makes up his mind to commit the accused to the Sessions. When the trial was commenced before him, he treated it as one of a warrant case and the accused exercised the right to reserve cross-examination after charge. If, in the midst of the trial or immediately after finishing the evidence for the prosecution, the Magistrate decides to commit the accused to the Sessions, it does not seem just to the accused that he should, at that stage, because the Magistrate has come to a certain decision, lose the right which he had before such decision. In such a. case, Section 347 should not be held as compelling the Magistrate to refuse to allow the accused to cross-examine the witnesses and to commit at once the case to the Sessions.

(3.) So this is not an authority for the view contended for by the learned Public Prosecutor. I do not, however, think it necessary to say anything final on this point, because I am convinced, under the circumstances of this case, that the ends of public justice will best be served by quashing the commitment and ordering the Court to dispose of the case itself and continue the proceedings at the point where it determined to commit. I may perhaps note one other slight irregularity to avoid a possible future objection. On 2nd February, 1932, after the charge was framed and pleaded to, the Court asked the accused whether they wished to re- call and examine the prosecution witnesses. The question should under the Code have been deferred until the next day, unless, for reasons recorded, the Magistrate saw fit to do otherwise : vide Section 256. In order to make the matter perfectly regular, the Magistrate should now again ask the accused this question.