Gangadhar Agarwalla vs The State

Amaresh Roy, J.—This Rule has arisen out of a case which is now pending trial in the Court of Third Presidency Magistrate, Calcutta. That is a case instituted on a police report as a result of an investigation under Ch. XIV of the Code of Criminal Procedure which commenced upon an F.I.R. lodged by the present Petitioner Gangadhar Agarwalla in the Jorabagan Police Station on February 1, 1963 at about 11.45 P.M. Allegations contained in that information were that on February 1, 1963, at about 9.20 P.M. the informant Gangadhar Agarwalla had returned to his house from his office and then went to his guddy at the same premises on the first floor. While he was remaining there, at about 9.45 P.M. he heard cries of his brothers, Badriprosad and Hiralal. Gangadhar rushed to the place wherefrom the noise had come and he found his two brothers Badriprosad and Hiralal standing at the common passage just in front of the Mahaluxmi Soap Works and crying in agony covering their faces with hands. He noticed some liquid substance on the faces of his two brothers and also on the other parts of their bodies. He also saw Ram Sevak and Rambilash, who are the owners of Mahaluxmi Soap Works, standing there, the first with a mug in his hand and the other with a bucket in his hand. Adhu Mahato, who is a durwan of the said Soap Works, was also standing inside the gate just behind the other two persons, that is, Ram Sevak and Rambilash. He also saw that some liquid substance was being thrown out from the open window of the said Mahaluxmi Soap Works on to the staircase of his own house and that several members of his family, including females, were running back along the staircase. Two or three drops of that liquid substance also fell on Gangadhar''s left hand and he felt burning sensation.

Upon that information, police took up investigation. In the meantime, the injured persons were removed to Mayo Hospital for treatment, where Hiralal Agarwalla and Badriprosad Agarwalla had been admitted as indoor patients on February 1, 1963 at 11.30 P.M. Diagnosis recorded at the time of the admission in the hospital was first noted in the case of Hiralal Agarwalla as "acid burn extensive" and in the case of Badriprosad Agarwalla as "acid burn face, forearm and hands". The continuation sheet of the said hospital records regarding Hiralar Agarwalla mentions, inter alia,

Burn due to throwing of caustic soda by one Ram Sevak Singh.

Extensive burn all over face, in front of neck and in front of chest.

2nd degree. Eyes-cornea aconj-slouged out on the Lt. side and whitish opaque is apparent on the Rt. Side. Scattered areas of burns on the forearm, hand and feet. 1st degree....

Extensive burn all over body.

Continuation sheet in the hospital records in case of Badriprosad Agarwalla mentions, inter alia.

Eye-Rt. eye normal.

Lt. eye corrosion of conjunctive and cornea.

External burn face.

Both the patients, however, left the hospital on February 3, 1963 at 9 A.M., on executing risk bonds and both of them were treated in the Calcutta Nursing Home by Dr. R.N. Gokhle. Badriprosad Agarwalla was discharged from the said Nursing Home on February 15, 1963 at 5 P.M. and Hiralal Agarwalla was discharged from the said Nursing Home on March 8, 1963 at 10-30 A.M. It is the prosecution case that Hiralal Agarwalla has lost his vision completely in the left eye and the injuries have caused permanent disfiguration of his face. Badriprosad''s injuries were also of grievous nature and caused permanent disfiguration of his face.

At the conclusion of the investigation, police submitted a charge sheet against the three accused persons, Ram Sevak Singh, Rambilash Singh and Adhu Mahato, alleging that they had voluntarily caused grievous hurt by throwing liquid caustic soda, a corrosive substance, on the persons of Hiralal Agarwalla and Badriprosad Agarwalla and thereby caused permanent privation of the sight of the left eye and permanent disfiguration of face of Hiralal Agarwalla and also causing disfiguration of the face of Badriprosad Agarwalla, thereby committing an offence u/s 326 of the Indian Penal Code. In the said charge sheet the accused persons were further charged with aiding and abetting each other in the commission of the above offence.

The charge sheet was received in the Court of the Additional Chief Presidency Magistrate on May 24, 1963. The accused persons, who had been already arrested and produced before the Additional Chief Presidency Magistrate, were on Court bail. The cognizance was taken on the said charge sheet and the case was transferred to Shri P.K. Banerjee, Presidency Magistrate, for disposal. On June 12, 1963, the said Presidency Magistrate, Shri P.K. Banerjee, fixed June 19, 1963, for consideration of the charges by following the procedure laid down in Section 251A Code of Criminal Procedure On June 19, 1963 the Public Prosecutor, who was conducting the case for prosecution, filed an application before that learned Magistrate stating:

That in view of the serious nature of the case and the serious injuries sustained by the victims resulting with loss of his eye and other victims receiving injuries during the incident, question of adequacy of punishment and also other considerations, it is respectfully prayed that honour will be pleased to hold an enquiry in this case in accordance with the provisions of Section 207A Code of Criminal Procedure.

The learned Presidency Magistrate heard both sides on that application and on June 27, 1963 the learned Magistrate recorded an order saying:

All the accused are present It was argued on behalf of the prosecution that the accused persons should be committed to Sessions as the grievous hurt of the injured would justify deterrent punishment which cannot be passed by this Court under Ch. 21 of the Code of Criminal Procedure. The prosecution insisted on Sessions enquiry by this Court. Perused Police return. Heard lawyers. I do not think that a Sessions enquiry is called for.

The learned Magistrate proceeded to record in that order:

There are reasons for presuming that the accused Nos. 1 and 2 and 3 have committed an offence triable under Ch. 21 of the Code of Criminal Procedure Accused Nos. 1 and 2 are charged u/s 326 I.P.C. and accused No. 3 is charged u/s 326/114 I.P.C. Charge is read over and explained to the accused persons separately and each of them pleads not guilty and claims to be tried. To 18.7.63 and 19.7.1963 for evidence. Accd. as before.

Thereafter by an order dated August 5, 1903, the charge against accused No. 3 was amended on the prayer of the prosecution to one u/s 326/109 I.P.C. and all the accused persons were further charged u/s 324 I.P.C. for voluntarily causing hurt to Rameswar, Pursottom and Lilu Bahadur after further copies of relevant documents were supplied to the accused persons.

By following the procedure laid down in Section 251A, Code of Criminal Procedure the learned Magistrate proceeded to examine witnesses on August 19, 1963 and on several dates thereafter. Doctor who had treated Badriprosad and Hiralal in the Mayo Hospital was examined as P.W. 4 on November 20, 1963 and the documents of that hospital were proved as Exhibit 3 series. The documents of the Calcutta Nursing Home were proved by P.W. 5 and were marked Exhibits 4, 5 and 6 collectively. The Dr. Gokhle, who had treated those two injured persons in the Nursing Home, was examined as P.W. 6 on November 21, 1963 and his notes were also filed in the records. Thereafter, three more witnesses were examined, the last one P.W. 9 on February 12, 1964 and case was adjourned for further evidence.

On February 19, 1964 which was a date fixed for further evidence, P.W. 9 was cross-examined and discharged and March 11, 1964 and March 12, 1964 were fixed for further evidence. At that stage the learned Public Prosecutor filed another petition stating, inter alia,

That in evidence it has transpired that the injuries both of P.W. 1 and P.W. 2 are of grievous nature and that the injuries caused permanent disfiguration of the faces of P.W. 1 (Badri Prosad Agarwalla) and of P.W. 2 (Hiralal Agarwalla) and that P.W. 2 has completely lost vision of his left eye and partially of the right eye and that he (P.W. 2) was under the treatment of the doctor (P.W. 6) for over two months.

* * *

That in case of such serious nature of injuries particularly of P. Ws. 1 and 2 and the gravity of the offence committed by the accused persons, if it ends in conviction, the question of adequate punishment is also to be considered.

That it is a fit case to be tried by the Court of Sessions.

It was prayed in that application that an enquiry u/s 207A of the Code of Criminal Procedure be held. That application was heard by the learned Magistrate on March 11, 1964 and by his order dated March 12, 1964, the learned Magistrate recorded,

I find no materials on record so that I could switch over to sessions enquiry. The petition filed on February 19, 1961 is rejected.

The case was then adjourned to March 25 and 26 for evidence. Before that date, however, Gangadhar Agarwalla, on whose information the investigation in the case had started, moved the present petition in this Court on March 16, 1964 and the present Rule issued. Contention of the Petitioner is that the learned Presidency Magistrate erred in law in not holding an enquiry under Ch. XVIII of the Code, inasmuch as the evidence discloses the nature of an offence which should be tried by a Court of Session and the circumstances of the case justify the infliction of a severe sentence in the event the accused persons are found guilty of the charges and, in any event, the maximum sentence which the learned Magistrate can pass under the law is much too inadequate in comparison with the gravity of the offence. Rule has issued to show cause why the order complained of, that is, the order dated March 12, 1964, should not be set aside, and, besides the State of West Bengal, the three accused persons have been joined as opposite parties, on whom also the Rule has been served.

Mr. Ajit Kumar Dutt with Mr. Dilip Kumar Dutt has appeared for the Petitioner in support of the Rule. Mr. Nalin Chandra Banerjee with Mr. Biswajit Ghose and Mr. Samir Mukherjee has appeared to oppose the Rule on behalf of the three accused persons. Mr. Purnendu Narayan Biswas has appeared to represent the State and he has supported the Petitioners'' contentions. The arguments raised by each of the learned Advocates representing their respective clients will be dealt with in due course.

In support of the Rule Mr. Ajit Kumar Dutt has referred to cryptic observations made by the learned Magistrate for turning down the prosecution prayer for following the procedure u/s 207A Code of Criminal Procedure for committing the case for trial to the Court of Session at both the stages: first, on June 27, 1963 when the Magistrate only said:

I do not think that a sessions enquiry is called for.

and, again, after evidence on March 12, 1964, when the learned Magistrate has said in his order:

I find no material on record so that I could switch over to sessions enquiry.

Mr. Dutt has relied on the materials and documents, copies of which had been supplied to the defence under the provisions of Section 173(4) Code of Criminal Procedure upon which the Magistrate even before examination of any witnesses in the box had found reasons for presuming that the accused persons have committed an offence punishable u/s 326 I.P.C. and framed charge under that section though following the procedure laid down in Section 251A Code of Criminal Procedure. He contends that the manner of doing the acts constituting that alleged offence, the liquid corrosive material used for causing the injuries and the grievous nature of the injuries at least in respect of two persons will appear from the materials available to the Magistrate at that stage. Prosecution had taken steps for filing an application on June 19, 1963, insisting that an enquiry in accordance with provision of Section 207A Code of Criminal Procedure, should be held. The learned Presidency Magistrate on June 27, 1963, framed charge against all the accused u/s 326 I.P.C. on those materials in view of the nature of the injuries sustained by the victims. Mr. Dutt contends that that fact alone in conjunction with the provision in Section 326 I P.C. prescribing the maximum punishment of imprisonment for life or rigorous imprisonment for 10 years should be considered reasonable enough for the Magistrate to hold an enquiry u/s 207A Code of Criminal Procedure in Ch. XVIII of the Code instead of following the procedure of trial u/s 251A Code of Criminal Procedure in Ch. XXI. Yet in his order dated June 27, 1963, the learned Presidency Magistrate contended himself by saying:

I do not think that a sessions enquiry is called for.

In that order of that date the learned Presidency Magistrate mentioned the insistence of the prosecution that the offence alleged, if proved, would justify deterrent punishment which cannot be passed by the Court of the Presidency Magistrate. But the learned Presidency Magistrate does not say in that order that in his view even the maximum punishment that he can award in a trial before him, that is, two years'' rigorous imprisonment and fine would be adequate punishment if the accused persons or any of them is found to be guilty as alleged. Mr. Dutt proceeds to argue that because of the view expressed by the Magistrate in that order on June 27, 1963, prosecution thought fit to produce evidence in the witness box including the two doctors who had treated the two victims Badriprosad and Hiralal, for explaining the nature of the grievous hurt caused to them. When ten witnesses had been examined including the two doctors P.W. 4 and P.W. 6 and the injury reports and hospital records were proved formally before the Magistrate through P.W. 5, soon thereafter and before examining other or remaining witnesses, on February 19, 1964, prosecution made another application for holding an enquiry u/s 207A instead of proceeding with the trial following the provisions in Section 251A Code of Criminal Procedure. The view expressed by the learned Magistrate upon that application for the prosecution is that he found no materials on record so that he could switch over to the sessions enquiry. Mr. Dutt argues that all the materials being on the record the two provisions in law, one, the maximum punishment prescribed in Section 326 I.P.C. and the other in Section 347 Code of Criminal Procedure giving power to the learned Magistrate to proceed to hold an enquiry under Ch. XVIII and commit the accused under the provisions of that Chapter even after the commencement of a trial before signing the judgment, are the relevant provisions of law; but the learned Presidency Magistrate did not either mention any of those provisions nor does his order show any awareness in his mind about those. Particular emphasis is laid by Mr. Dutt to the phraseology in the last order of the Presidency Magistrate dated March 12, 1964, that he was looking for "materials on record for ascertaining whether he" could switch over to sessions enquiry when, properly, according to Mr. Dutt, the learned Magistrate should have looked for the relevant provisions in law to decide whether he should revert to an enquiry u/s 207A Code of Criminal Procedure at that stage of the proceeding.

While according to Mr. Dutt omission by the learned Presidency Magistrate to devote proper consideration has resulted in erroneous orders at both the stages in which the prosecution had made the two applications above mentioned, on behalf of the State, the learned Advocate Mr. Purnendu Narayan Biswas has not only adopted the arguments of Mr. Dutt and rendered full support to his contentions, but he also went a step further to submit before this Court that at all material stages when the prosecution was mooting this aspect of the case the learned Presidency Magistrate has shown signs of an anxiety to retain the case in his Court without adverting to the objective consideration for the justice of the case. Mr. Biswas has contended that the materials before the learned Magistrate at the stage when he framed the charges were enough to require for proper justice an enquiry u/s 207A instead of the procedure of trial before the Magistrate u/s 251A Code of Criminal Procedure. When at that stage the Magistrate turned down the prosecution prayer the learned Public Prosecutor justifiably felt that if the materials and documents without the aid of the expert evidence of the two doctors and before seeing the victims in the box had failed to evoke proper consideration it will be proper for the prosecution to press the point at a stage after those witnesses, that is, P.W. 1, P.W. 2, the victims, and P. Ws. 4 and 6, the two doctors, have deposed by appearing in the witness-box in flesh and blood and have explained the materials appearing on the documents in proper perspective. With that view prosecution waited until the two doctors have been examined and without any delay thereafter an application was made again on February 19, 1964, praying for holding an enquiry u/s 207A Code of Criminal Procedure. For that the prosecution cannot be accused of not taking proper and diligent steps before the learned Presidency Magistrate. Mr. Biswas also points out that when the Magistrate had turned down the prosecution prayer even on March 12, 1964 and had fixed March 25, and 26, 1964 for evidence, the informant Gangadhar Agarwalla moved the present application in this Court on March 16, 1964, and the present Rule issued. In view thereof prosecution instead of moving this Court on their own, have entered appearance in this case to support the Rule which will give complete relief according to the prosecution contentions. Mr. Biswas, therefore, prayed that the present Rule should be made absolute by giving proper direction to the learned Magistrate.

Appearing to oppose the Rule on behalf of the accused the learned Advocate Mr. Nalin Banerjee has raised several contentions which may be dealt with seriatim. Mr. Banerjee''s contention as a matter of law has been two in number. First is that although Section 347 Code of Criminal Procedure can be applicable when a proceeding is being carried on under Ch. XXI Code of Criminal Procedure by following the procedure laid down in Sections 252 to 257 Code of Criminal Procedure by reverting any fit cases to the procedure in Ch. XVIII laid down in Sections 208 to 213 Code of Criminal Procedure according to Mr. Banerjee''s contention, Section 347 Code of Criminal Procedure does not apply and cannot be operated on a proceeding of trial which is following the procedure laid down in Section 251A Code of Criminal Procedure as that would require reversion to the procedure laid down in Section 207A Code of Criminal Procedure in Ch. XVIII of the Code, because such cases are proceedings instituted upon a police report. In other words, Mr. Banerjee''s contention in this respect is that the particular provisions contained in Section 251A Code of Criminal Procedure makes it impossible in law to be converted into a proceeding u/s 207A Code of Criminal Procedure without creating grave legal difficulties. In developing this argument Mr. Banerjee has pointed out that the charge u/s 251A Code of Criminal Procedure is framed without examining any witness before the Magistrate and only upon consideration of the materials and documents referred to in Section 173(4) Code of Criminal Procedure and once the charge has been framed in a proceeding u/s 251A Code of Criminal Procedure it becomes impossible to revert to Section 207A Code of Criminal Procedure which in Sub-section (4) lays down that the charge shall be framed not only upon consideration of the materials and documents mentioned in Section 173(4) Code of Criminal Procedure but also upon examination of such eyewitnesses as prosecution may produce. This argument though forcefully advanced by a counsel of Mr. Banerjee''s experience, it may be pointed out that in an enquiry u/s 207A Code of Criminal Procedure at the stage of Sub-section (4) of that section though the Magistrate shall examine such, eye-witnesses as may be produced by the prosecution, it is quite possible without any violation of that procedure that prosecution does not choose to produce witnesses at that stage and Magistrate frames charge only upon consideration of the materials and documents mentioned in Section 173(4) Code of Criminal Procedure. Therefore up to the framing of the charge in such proceedings, be it under Sub-section (3) of Section 251A in Ch. XXI, or be it u/s 207A Code of Criminal Procedure there is not much of a difference between them. In the present case, the charges were framed by the learned Magistrate without examining any witness and devoting consideration only to the materials and documents mentioned in Section 173(4) Code of Criminal Procedure and upon hearing both the parties. That could have been done in this case if the proceedings were following the provisions in Section 207A Code of Criminal Procedure following an enquiry under Ch. XVIII.

Another legal difficulty urged by Mr. Banerjee was by contending that to revert to an enquiry under Ch. XVIII after charges have been framed u/s 251A Code of Criminal Procedure in a trial till then held under Ch. XXI Code of Criminal Procedure it would be necessary to cancel or quash the charges already framed and as soon as that is done, according to Mr. Banerjee''s contention, it will have the effect of an acquittal in Ch. XXI Code of Criminal Procedure and that will attract the bar of Section 403 Code of Criminal Procedure and the contemplated proceeding for enquiry under Ch. XVIII by following the procedure laid down u/s 207A Code of Criminal Procedure will be wholly illegal. This contention of Mr. Banerjee also does not appear to be sound for the reason that I have mentioned in dealing with the earlier part of the argument that the charge framed though u/s 251A Code of Criminal Procedure could be, without any violation of law, be treated as a charge framed u/s 207A Code of Criminal Procedure. All that Sub-sections (4), (5) and (6) of Section 207A Code of Criminal Procedure require to be done before a charge is framed within the framework of that section have been done and as is generally done when a charge is framed u/s 251A(3) Code of Criminal Procedure only with this difference that though u/s 207A charge could be framed under that provision by examining eye witnesses as may be produced by prosecution, the charge when it was framed u/s 251A(3) was framed without any examination of any witnesses at all and only relying on the materials and documents mentioned in Section 173(4) Code of Criminal Procedure. In my view, there is no obstruction in law even by strict application of the provisions in that respect to contemplate a charge framed u/s 251A(3) Code of Criminal Procedure to be one framed u/s 207A(6) Code of Criminal Procedure when it is proper to do so by applying Section 347 Code of Criminal Procedure.

The provision made in Section 347 Code of Criminal Procedure that a proceeding till then carried on under Ch. XXI may be converted to an enquiry under Ch. XVIII "under the provisions hereinbefore contained" by its very nature is a necessary and useful provision for the reason that a large bunch of offences are triable either by a competent Court of Magistrate or by Court of Session in the alternative.

In which of the two alternative forums a particular case should be tried, of necessity, depends on many and various considerations, one of which is adequacy of sentence that may be called for if the case ends in conviction.

Such consideration can and should not only be devoted at the very early stage of the proceeding when there is before the Court only bare allegations, but also during the proceeding at all stages that objective consideration of requirement of justice in the case should remain actively in the mind of the Court and as the stages develop and materials for framing the charges have come and even after frame of the charge, evidence in the trial has come before the Court in successive stages, almost to the end, before the judgment has been pronounced, those considerations are enjoined by Section 347 Code of Criminal Procedure. When at any particular stage of trial under Ch. XXI the Magistrate thinks it proper to revert to enquiry under Ch. XVIII, he may begin that enquiry de novo or he may adopt that part of the proceeding carried on under Ch. XXI as may be fitted in the procedure laid down in Ch. XVIII. This process of fitting in involves an adjustment by superimposing what has already been done under Ch. XXI on the requirements under Ch. XVIII. Even before Section 251A was introduced in Ch, XXI and Section 207A in Ch. XVIII, such adjustment almost always presented difficulties of various nature and supervening consideration was not to abandon Section 347 Code of Criminal Procedure because of those difficulties but to adapt the proceeding to its new character by protecting the rights of both the parties according to Ch. XVIII, and achieving fairness to all concerned and justice to the case. As illustrations mention may be made of the case reported in G.V. Raman v. Emperor (1929) 57 Cal. 44 and the case reported in Santi Jiban Bose v. Broja Nath Munshi (1955) 60 C.W.N. 82 both of which were before introduction of Sections 207A and 251A Code of Criminal Procedure, the last one being perhaps the last decision of this Court reported on the point before that amendment.

That to operate Section 347 Code of Criminal Procedure in cases that may attract the provision properly after introduction of the two Sections 207A and 251A there may appear some difficulty and need for new adjustments would not be, in that view, sufficient reason for holding that between these two provisions Section 347 Code of Criminal Procedure cannot be operated at all, as contended by Mr. Banerjee. To accede to that argument would lead to the result that in the large field of cases instituted upon police report the general provision of the importance and usefulness of Section 347 Code of Criminal Procedure will be completely obliterated. I reject Mr. Banerjee''s contention unhesitatingly.

Besides these contentions of law, Mr. Banerjee has also raised arguments of justice and contemplated prejudice upon the particular features of the present case. First of such contention of Mr. Banerjee is that the present Rule has been issued at the instance of a private person upon what Mr. Banerjee chooses to call a belated application. I have no hesitation in holding that the feature that the present Rule issued at the instance of the private person who is no other than the informant, upon whose information the F.I.R. was recorded and the investigation under Chapter XIV started, does not fix any stigma. In the particular facts of this case which the records fully bear out, at all stages prosecution was making applications and urging by arguments for holding an enquiry under Ch. XVIII and after the last order of the Magistrate dated March 12, 1964, this Rule was issued in four days'' time on March 16, 1964, to support which Rule State has appeared in this Court and advanced arguments to achieve what prosecution was seeking to achieve from June, 1963. The arguments advanced by Mr. Biswas on behalf of the State, to which I have already referred above, are good reasons, in my view, for the conclusion that neither the State nor the present Petitioner can be accused of lack of diligence or any delay.

Next contention by Mr. Banerjee for the accused persons is that neither the State nor the informant, who is the present Petitioner, has taken any step for getting over the earlier order of the Presidency Magistrate dated June 27, 1963, by which the prayer of the prosecution for holding an enquiry under Ch. XVIII instead of proceeding under Ch. XXI was rejected. Within the framework of Section 347 Code of Criminal Procedure the subject matter with which we are concerned in this Rule can be adverted to at any stage of the trial up to the time before singing of the judgment. It may be a continuous consideration, therefore, during the whole of the proceeding up to that stage. Therefore, it is neither possible nor proper to set a definite terminus within which such a step can be taken and truly the consideration is whether the case objectively admits of employment of Section 347 Code of Criminal Procedure. The same consideration may arise at different stages with the progress of the proceeding and the development of the materials and evidence in the case and if at the earlier stage on materials then availing a view prevailed with the Magistrate and the prayer for the prosecution then made was not acceded to, that order is not, in my view, any obstruction to a proper prayer again made at a later stage upon further and proper materials. Contention of Mr. Banerjee, therefore, that in the face of the previous order made on June 27, 1963, there would be an obstruction in law for making an order by applying Section 347 Code of Criminal Procedure either by the Presidency Magistrate or by this Court cannot be accepted.

Next contention of Mr. Banerjee is that whether or not a step should be taken as contemplated by Section 347 Code of Criminal Procedure is a discretion given to the Magistrate and it is not proper for this Court to override that discretion by exercise of revisional Jurisdiction. It is true that it is the satisfaction of the Magistrate that is the basis of an action u/s 347 Code of Criminal Procedure because the section says:

If... in any trial before a Magistrate... it appears to him....

In my view that satisfaction must be by the objective consideration of the nature of the case, that is, the acts that constitute the offence and the adequate punishment that it may call for and other considerations of a fair trial and the discretion of the Magistrate is not an absolute or subjective discretion, but is one that has to be judicially exercised on those objective considerations. If it is made to appear to this Court that on the materials and evidence the Magistrate has omitted to exercise the discretion judicially, then it is not only possible but also only proper for this Court to interfere when the nature of the case on all material considerations call for an order u/s 347 Code of Criminal Procedure for ends of justice both for the accused and for the prosecution.

The last argument advanced by Mr. Banerjee is more forceful than any other which I have dealt with previously. That is a contention that when 10 witnesses have already been examined in the case and defence has fully cross-examined those witnesses after charge u/s 256 Code of Criminal Procedure thereby disclosing their defence, it will be a grave prejudice if the prosecution of trial by following the provisions in Section 251A Code of Criminal Procedure is abandoned at this stage and that of an enquiry under Ch. XVIII by following the procedure laid down in Section 207A Code of Criminal Procedure is reverted to. This is a serious consideration indeed and it has taken many anxious hours before I have reached the conclusion that on the facts and circumstances of the present case the handicaps urged by Mr. Banerjee for the accused persons are outweighed by not only the considerations of justice that the case requires, but also by the advantages that defence may well secure by the changed procedure both at the enquiry and in the trial if an enquiry under Ch. XVIII and a trial in the Court of Session with the aid of the jury is reverted to. It is true that during cross-examination of the many witnesses defence has suggested a definite case for them, but at the same time the present record of depositions will be no more than previous depositions of the witnesses in the contemplated trial in the Sessions Court before a new Judge and a jury. That obviously sets a definite limit to the apprehension that prosecution and their witnesses may mould their case and testimonies at the Sessions trial upon their knowledge of the line of defence that the accused persons would take. Correspondingly, those depositions would be available to the defence for utilisation as materials in contradiction if either the prosecution or their witnesses intend or attempt to improve upon and deviate from. The trial before the Judge with the aid of a jury, which in the present case will be in the City Sessions Court at Calcutta, is a valued privilege of the accused persons often times preferred as an alternative to magisterial trials. In the possible result of a conviction (which possibility is equal to the other possibility of an acquittal) the quantum of sentence that may be awarded will be guided by the objective consideration which the evidence in the case may present and not by any subjective consideration whether the trial is by the Presidency Magistrate or by the Sessions Judge with the aid of jury. Though the maximum sentence that can be awarded by a Presidency Magistrate is two years'' R.I. and fine of Rs. 2,000 there is no limit of lesser sentence and if the objective consideration of the case calls for a lesser sentence the Sessions Court may impose one that is much less than the maximum of the powers of the Presidency Magistrate. If the case ends in conviction in the matter of right of appeal under Ch. XXXI of the Code the accused persons have a definite advantage if it is by the Sessions Court because the right of appeal from a trial by a Presidency Magistrate will vest u/s 411 Code of Criminal Procedure only if that Magistrate sentences him to imprisonment for a term exceeding six months or a fine exceeding Rs. 200. But any order of conviction on a trial held by a Sessions Judge, when the sentence is imprisonment for a period exceeding one month will give the accused persons right of appeal u/s 410 read with Section 413 Code of Criminal Procedure. Mr. Banerjee has, however, argued that an appeal from an order of conviction by Sessions Court in a trial by jury will lie on a matter of law only, that is, where there are misdirections in the Judge''s charge to jury, as provided in Section 418(1) Code of Criminal Procedure. But it cannot be overlooked that the explanation in that section makes it clear that severity of a sentence for the purpose of that section is deemed to be a matter of law. Taking all these into consideration I am clearly of the view that by objective consideration of all aspects in the case it is pre-eminently necessary for ends of justice both to the accused for a fair trial and to the prosecution for an adequate sentence if the case results in conviction, the case is one which ought to be tried by the Court of Session. The materials on the record are reasons enough that should have impelled the Magistrate by judicial exercise of the discretion given u/s 347 Code of Criminal Procedure to hold so and the learned Magistrate has by his omission to devote proper consideration of the materials and neglect of the law applicable to the subject committed grave error by not acceding to the prosecution prayer to hold an enquiry under Ch. XVIII by employing Section 347 Code of Criminal Procedure to the case.

I, therefore, set aside the order of the learned Magistrate dated March 12, 1964, by which he rejected that prayer of the prosecution and direct him to commit the accused for trial by the Court of Session on the charges already framed. The learned Magistrate who is dealing with the case being a Presidency Magistrate is empowered to make such order of committal. The proceeding before the learned Presidency Magistrate shall be treated as an enquiry under Ch. XVIII by following the procedure laid down in Section 207A Code of Criminal Procedure which is applicable to the case. The charges framed already shall be treated as charges framed u/s 207A(7) Code of Criminal Procedure and the remaining provisions in Section 207A Code of Criminal Procedure and the Magistrate is directed to make an order under that Sub-section (7) for committing the accused for trial in the Court of Session. It appears from the record that the charges framed have been read and explained to the accused. If copies of those charges have not been given to the accused persons, those shall be given free of cost in compliance with Section 207A(8) Code of Criminal Procedure and the learned Magistrate shall follow the procedure laid down in Sub-section (9) and the following provisions in Section 207A according to law.

It is made clear that the depositions of witnesses already recorded by the Presidency Magistrate shall be on the record only as the previous depositions of those witnesses and shall be available to the defence for legal use thereof at the trial of the Court of Session, but those shall not be used as substantive evidence against the accused person at that trial except under circumstances in which law allows their substantive use, either by defence or by prosecution.

Rule is made absolute accordingly.

Let the records be sent down without delay.