AI Structured Summary
Not yet generated for this judgment
Judgment
Pakenham Walsh, J.—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 15th 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 Sections 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 u/s 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 28th March and this case was posted on the 4th April,
1932. This petition to quash the commitment was presented on 23rd 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 29th 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 30th March, 1932 and that stay expires to-day. 1 understand
that the case is posted for judgment on 8th April, two day hence.
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) ILR 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 Vs. 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 K.R. Bhat Vs. 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. Emperor (1929) ILR 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.
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.
It has been strongly urged before me by the learned Public Prosecutor and by Mr. Ethiraj that this Court has laid down that a case and a
counter-case should be tried together. There is nothing in the Code defining the procedure and it is quite obvious that all these remarks by learned
Judges are meant to expedite justice and in the interests of it. To take first the case quoted by the learned Counsel In re Krishna Pannadi (1929)
58 M.L.J. 352. In that case, both the cases were already before the Sessions Court and after the pronouncement of the judgment convicting in one
case, the Public Prosecutor withdrew the other. That is not a case similar to the present at all, and the observations made must be taken in the light
of that particular case.
Then conies G. Krishtamma In re (1929) 2 Mad. Cr. C. 238. There were there a case and a counter-case, one of which was triable by the
Magistrate and the other by the Sessions. The Police charge-sheeted both the cases. The Magistrate convicted the accused in one case and
committed the other case to the Sessions. The learned Judges remarked that there is nothing to prevent him committing to Sessions u/s 347 and
that the case and the counter-case arising out of the case should, if practicable, be tried by the same Court. It may be noted that this opinion is
obiter and was not necessary for the disposal of the case, but its soundness cannot be disputed. Then there is the decision of Jackson, J., in
Sathakutti Pillai v. Pichai Cruz (1931) M.W.N. 1316. That again refers to cases already before the same Court and the learned Judge does not
even say there that the cases must both be charged, for he says, they should be conducted together as far as charge or discharge. Other High
Courts have taken a somewhat different view on this matter.
In Emperor v. Karam Singh AIR 1930 Lah.312 it was held that in committing cases not exclusively triable by the Court of Session, Magistrates
should exercise a proper discretion and give adequate reasons for making commitment to the Court of Sessions. Reasons should be such as to
show whether the commitment is made in the sound exercise of the discretionary power vested in the Magistrate by law, and if he does not give
adequate reasons, the commitment may be quashed. It is further observed that a case triable by a Magistrate should not be committed merely to
avoid a possible conflict of decisions and that the proper course is to await the result of the Sessions trial. Another case is Emperor v. Nathu AIR
1932 Lah. 168. It is there stated that an apparent connection of a case u/s 326, Penal Code, with a case u/s 302 is no ground whatsoever for
committing it to the Sessions Court when the offence involved is triable and can be adequately punished by a First Class Magistrate or one
exercising powers u/s 30, Criminal Procedure Code. If the object of the Magistrate is to avoid a possible conflict of decisions it can be achieved
by awaiting the result of the Sessions trial in the case u/s 302. I do not at all wish to say that this is the view which has been taken by the Madras
High Court, but it has not been laid down anywhere as an absolute rule that all charges and counter-charges must be tried by the same Court. If
the learned Magistrate in this case had started with commitment proceedings, it would have been probably the best course for all concerned, but
what I have to look to as things stand at present is, whether it would be at all in the interests of public justice to order him to proceed with this case
now as a Pr. Case. It will inevitably mean in the first place an examination of the defence witnesses before a charge is framed, for, of course, the
charge will have to be set aside in order to get back to the stage at which the Pr. case proceedings can be applied. I understand accused have
cited more than 50 defence witnesses. Then, as I said, I am rather inclined to think that the accused would be entitled to further cross-examine all
the prosecution witnesses. After the charge they would again be entitled to call further defence witnesses, and all this to enable the Sessions Court
to try this case along with the counter-case. If these committal proceedings occupy two or three months, is his judgment in the other case which
has been concluded to be held up indefinitely? Supposing even the judgment which is probably being now written is stayed, is the Court to attempt
to erase the recollection of it from its mind? If it does so, by the time the counter-case came to Sessions five or six months afterwards, the facts in
the present Sessions case would have been forgotten by the learned Judge. It may be noted that though Mr. Ethiraj says a great deal here about
prejudice to the private complainant in the case before the Magistrate, if cases are not both tried before the Sessions Court, the complainant
evidently did not wake up to that prejudice till after the charge was framed and till his pleader quoted Krishna Pannadi v. Emperor (1929) 58
M.L.J. 352 to the Magistrate. It is even possible that the learned Magistrate discovered that case himself. If a procedure is laid down in the Code,
that procedure must be followed even if in any particular case it might cause great delay and hardship or even a possible failure of justice; but
where there is no procedure laid down in the Code, I see no reason at all why this Court, in order to enforce the very salutary observations made
by Judges of this Court, should treat these as if they were rigid and inflexible rules which have to be followed, no matter what the delay, absence of
benefit, or possible miscarriage of justice which this course may lead to. I see little use, and many objections to this case being now committed to
Sessions. I am of the opinion that the proper order to be passed in this case is, that the commitment order should be quashed and that the Court
should dispose of the case as a warrant case bearing in mind the remarks which I have made with regard to again asking the accused whether they
wish to recall and cross-examine any of the prosecution witnesses.