EMPEROR Vs. ASGHAR

JUDGEMENT

(1.) As I was a member of the Bench which decided Jhabwala's case known as the Meerut Conspiracy Case: Jhabwala V/s. Emperor 1933 A L J 799, I should like to add a few words. In that case we were obsessed by the enormous delay of nearly 4 1/2 years that had taken place. The question whether the entire evidence for the prosecution must he produced before the committing Magistrate did not arise for decision in that case, nor was the point argued before us at the Bar. Our observations were no doubt in the nature of obiter dicta and therefore not of any binding authority. We made it clear that if a Magistrate stopped proceedings and did not take all the evidence that the prosecution wished to produce, and discharged the accused, the order would be improper, and that similarly if he did not take all the evidence offered by the accused and nevertheless committed the accused to the Court of Session, the order would be illegal and bound to be set aside. We emphasised that the Code could not mean that even if the Magistrate after hearing part of the evidence for the accused is satisfied that there is no case for commitment at all, he should nevertheless proceed to complete the recording of the entire defence evidence. But we also certainly expressed our own view that the entire evidence for the prosecution need not be produced before the Magistrate, provided notice of all the evidence to be produced in the Sessions Court is given to the accused before trial, so that he may not be prejudiced, and particularly so if there is a mass of similar evidence tending to prove the same point.

(2.) This latter view was based on our interpretation of Section 847, Criminal P.C. We were aware that by an amendment (1923) the words "stop further proceedings" had been deleted; but we noted that the words "at any stage of the proceedings" were still retained. We felt that the last words "shall commit the accused under, the provisions hereinbefore contained" could not mean that there should be an enquiry de novo under Ch. 18 and the entire evidence taken down afresh, but that the Magistrate should proceed from the stage which is appropriate. The word "enquiry" in Section 347 is certainly wide enough to include an enquiry under Ch. 18, and therefore Section 347 would prima facie be applicable. We felt that if the section be applicable its provisions could not be altogether redundant and superfluous. It must however be conceded that there is plenty of authority for the other interpretation that in spite of Section 347 the Magistrate must proceed under the provisions of Oh. 18 to complete the entire evidence for the prosecution. In addition to the cases of this Court distinguished in the Meerut Conspiracy Case (1), there are cases of other High Courts as well. Although on the one hand the duplication of the evidence and the double hearing in two Courts may be harassing to the accused, on the other hand, the rule that the entire evidence should be produced before the Magistrate is only fair to the accused. After all, if there is need to provide against an unnecessary waste of time, the Legislature can intervene and amend the Act. In view of the opinions expressed previously, I now think that it would be safer to adhere to that view on the principle of stare decisis and not make any departure. On re-consideration, therefore, I agree that the opinion that the entire evidence for the prosecution need not be produced before the committing Magistrate should be taken as an obiter dictum and not followed in practice. In this case seventeen witnesses had been named in the charge-sheet, out of whom the Magistrate examined only four, two out of these four being of a formal character. Commitment on such incomplete evidence was certainly not contemplated by us. Harries, J.

(3.) I entirely agree with the judgment delivered by Bajpai, J., and have nothing to add. In my view the question referred to this Full Bench should be answered in the manner indicated by Bajpai J., in his judgment. Bajpai, J.