Mirza Mohd. Afzal Beg and Others vs State

J.N. Wazir, C.J.—The facts which have given rise to this reference briefly stated are these. In a conspiracy case before the Special

Magistrate the counsel for the prosecution claimed a right u/s 208 (1) of the Criminal Procedure Code to make his opening ad-dress before

producing his evidence for examination. Objection was taken by the accused that the prosecution counsel had no right to make an opening ad-

dress and that u/s 208 (1) the complainant could only be examined on oath in support of his complaint. The trial Magistrate overruled this objection

and held that the complainant had got the right of audience and that right was wide enough to be exercised by the counsel for the prosecution and

was not restricted to the complainant alone. Three of the accused, Messrs, Mohd. Afzal Beg, Ghulam Mohd. Chicken and Mohiuddin filed a

revision application against that order before the Sessions Judge and the leaened Sessions Judge came to the conclusion that the words ""the

Magistrate shall hear the complainant"" used in Section 208 (1) meant that ""the Magistrate shall examine the complainant only if he desires to be

examined in support of his complaint and the counsel for the prosecution has no right of audience under the above section."" The learned Sessions

Judge has made this reference recommending that the order of the Special Magistrate dated 1-12-1958 permitting the prosecution counsel to open

his case be set aside.

This reference is supported by Mirza Afzal Beg who argued the cose for himself and for other petitioners while the Advocate General opposed

the reference.

The question for consideration in this reference is whether the expression ""shall hear the complainant,"" occurring in Section 208 (1) of the Code

of Criminal Procedure means that the Magistrate shall listen to the opening of the case by the complainant giving the facts of the case and the nature

of the evidence to be adduced by him to prove those facts, or whether it means the examination of the complaint on oath in support of his

complaint, and secondly if the complainant has the right of audience whether or not that right is extended to his counsel as well.

For the proper appreciation of these points it is necessary to refer to certain provisions in the Code of Criminal Procedure.

Section 200 specifically provides for the examination of a complainant upon oath if the complaint is not lodged by the Court or by a public

servant acting or purporting to act in the official discharge of his duties. In this section the expression used is not ""to hear the complaint"" but is ""to

examine the complainant upon oath"", whereas in Section 208 (1) the words are ""the Magistrate shall proceed to hear the complainant"". It is,

therefore, clear that there is manifest difference between the expression ""examine the complainant"" and the expression ""hear the complainant.

The expression ""hear the complainant"" does not only occur in Section 208 (1) but these words are used in Rules 244(1) and 252 (1) relating to

trial of summons cases and warrant cases respectively and these words are followed in all these sections by the words ""and take all such

evidence."" The use of the expression ""to hear"" and the other expression ""to take such evidence as may be produced"" occurring in Section 208 (1),

Rules 244(1) and 252 (1) clearly shows that there is a palpable difference between hearing the complainant and examining him. If the legislature

intended that the complainant also should have been examined by the Magistrate as other witnesses are to be examined in support of his complaint

it was not necessary to use the word ""hear"" with reference to the complainant and the words ""take such evidence"" in respect of the witnesses.

In that case the words ""the Magistrate shall proceed to examine the complainant and other witnesses"" would have been used instead of the words

shall proceed to hear the complainant and take such evidence as may be produced."" It is well settl-ed that the legislature never waste words. It is

also a Settled principle of construction that significance and meaning must be attributed to every word used by the legislature. The section, as

pointed out above, requires that the complainant shall be heard and not examined. The word ""hear"" obviously means some-thing other than taking

evidence or examination of the complainant.

According to the Webster's New International Dictionary the word ""hear"" means to be informed as by oral communication, and ""hearing"" has

been defined in the same dictionary as attention to what is delivered; opportunity to be heard; audience. The Concise Oxford Dictionary defined

the word as meaning listen; give audience. The same meaning is assigned to the word in Chambers Twentieth Century Dictionary.

This construction also receives support from certain decided cases. In Santiram Mandal Vs. Emperor, it has been held:

Section 208 (1) enjoins that the complainant if any, shall bo heard. It is not examination of the complaint that is necessary but only that he shall be

heard. There is a palpable difference between hearing the complainant and examining him

In Kunhi Kadir In re AIR 1922 Mad 126 at p. 128 it has been remarked that

the expression used in Section 252 in 'hear the complainant'. The taking of evidence is separately refer, red to. We have been shown no authority

for holding that hearing the complainant involves his examination on oath.

In Mohamudkhan Mahbubkhan v. Emperor AIR 1945 Nag 127, which has been referred to by the learned Sessions Judge in his reference,

the word ""re-heard"" came up for interpretation and it is observed in this case as follows:

It will thus be seen that hearing of the complainant under Rules 208 (1), 244(1) and 252 (1) and of the parties u/s 145 (4) does not necessarily

mean their examination. With regard to the hearing of a complainant under Rules 208(1), 244(1) and 252, (1) and of the parties u/s 145 (4) the

conclusion must be that it merely amounts to a granting of audience and while it does not amount to an examination it does confer a right of

audience."" Moreover, from the provision of Section 244(1) it would be clear that the expression ""hear"" used in Rules 208 (1), 244(1) and 252 (1)

does not mean the examination of the complainant on oath, The words ""the Magistrate shall proceed to hear"" are used in reference to the accused

as well in Section 244(1) which supports the view we have expressed that the word 'hear' does not mean examination on oath as the accused

cannot be examined on oath.

Mr. Beg has drawn our attention to the marginal headings of Section 208 (1) and has argued that under this section the evidence of the

complainant and his witnesses in support of the complainant and the evidence in defence by the accused has to be recorded by the Magistrate and

he wants us to interpret the word 'hear' used in this section in the light of the marginal heading which is ""taking of evidence produced.

The argument though specious is not sound. In the first place the Courts are not entitled to look at the side heading of a statute in interpreting

the statute. The legislature is not responsible for the side headings. In Commissioner of Income Tax, Bombay Vs. Ahmedbhai Umarbhai and Co.,

Bombay, , it has been held that

marginal notes of an Indian statute as in an Act of Parliament cannot be referred to for the purpose of construing a statute. Nor can the title of a

chapter be legitimately used to restrict the plain terms of an enactment.

The same view was taken in another Supreme Court case reported as Nalinakhya Bysack Vs. Shyam Sunder Haldar and Others, , where it

was held as under:

The marginal note cannot control the meaning of the body of the section if the language employed therein is clear and unambiguous. If the language

of the section is clear then it may be that there is an accidental slip in the marginal note rather than that the marginal note is correct and the

accidental slip is in the body of the section itself.

The learned Sessions Judge has compared the provisions of Rules 208 (1), 244(1) and 252 (1) with Section 286 (1) and has remarked that in

Section 286 a clear provision is made giving the right of making an opening address to the prosecutor in Sessions trial whereas in Rules 208 (1),

244(1) and 252 (1) no such clear provision is made and, therefore, he concludes that the complainant has got no right of making an opening

address. In my opinion there is some fallacy in this argument. Section 286 (1) provides that the prosecutor shall open his case by reading from the

Ranbir Penal Code or other law the description of the offence charged and stating by what evidence he expects to prove the guilt of the accused.

Section 270, Cr. P.C. lays down that in every trial before a Court of Session the prosecution shall be conducted by a public prosecutor. It is,

therefore, clear that the place of the complainant in the Sessions trial is taken by the Public Prosecutor and provision is made in Section 286 (1) as

to how the prosecutor has to conduct his case when the assessors have been chosen.

The object and scope of Section 286 (1), therefore, is quite different from that of Rules 208 (1), 244(1) and 252 (1). In the Sessions trial when the

assessors are chosen the prosecutor has to give the description of the offence by reading from the Ranbir Penal Code and has to state by what

evidence he expects to prove the guilt of the accused. He has to open the case in a manner that the assessors who may not be law knowing

persons are made aware in regard to the ingredients of the offence and also are apprised of the nature of evidence which is going to be led to

prove the guilt of the accused. While in Section 208 (1) the complainant has right of audience and he has to detail the facts which constitute the

offence and the evidence which he is going to produce in support of his case.

The object of Section 208 (1) appears to be to apprise the Magistrate of the facts which constitute the offence and also of the evidence the

complainant is going to lead to prove those facts. This section is partly for the benefit of the accused so that he may know what he has to say in his

own defence against the charge which has been brought against him and explain at the appropriate stage the evidence which has been led in

support of the charge, and partly to enable the Court to control the proceedings at the committal stage by not allowing unnecessary witnesses to be

produced by the prosecution and by excluding inadmissible and irrelevant evidence which might delay the proceedings and unnecessarily harass the

accused.

In the result I am of definite opinion that the word 'hear' used in relation to the complainant in Section 208 (1) does not mean examining the

complainant but means granting audience to the com-plainant, that is, he has to detail the facts which constitute the offence and to state by what

evidence he is going to prove those facts.

The next question is whether the right of audience given to the complainant can be exercised by the counsel for the complainant as well.

This question presents no difficulty for if the right of audience is conceded to the complainant, surely he can have that audience and exercise

that right through the counsel. The counsel is merely an agent of the principal and his action is to be recognised and taken notice of as the act of the

principal, that is, the complainant. This view received support from Ghulam Sibtain v. Mt. Kaniz Khatoon AIR 1920 Pat 383 (1) in which it is held

that hearing the parties means hearing the counsel or the pleader appearing on behalf of the parties. If the word 'hear' in Section 208 (1) had been

used to mean the examination of the complainant as is provided in Section 200, Cr. P. Code the question of the counsel appearing on behalf of the

complainant did not arise. But as we have interpreted the word 'hear' to mean granting audience to the complainant, his counsel is competent to

appear on his behalf and detail the facts which constitute the offence and the evidence proposed to be led to prove those facts.

For the reasons given above, I am unable to accept the recommendation made by the Sessions Judge and would therefore reject this

reference.

S. Murtza Fazl Ali, J.

I agree.