BIPAT GOPE versus STATE OF BIHAR

H!DAYATULLAH, J.-This is an appeal by special leave against an order of the High Court of Patna, by which an order passed by the Magistrate, First Class, discharging the appellants under s. 207A(6) of the Code of Criminal Procedure, was set aside, and the Magistrate was directed to commit the appellants to the Court of Session to stand their trial under ss. 307 /34 and 148 of the Indian Penal Code. The only question that is argued is whether the High Court was justified in setting aside the order of the Magistrate, which, it is cla.imed was passed in the proper exercise of the jurisdiction conferred by s. 207A(6) of the Code.

p. 949

The facts of the case, in ~rief, are as follows: 011 March 26, 1959, at about 10-15 p.m. one Rajbahadur Rai alias Chhote Rai, was alleged to have been assaulted by the appellants at a place where Chhote Rai sitting, at the pan shop of one Raghunath Prasad. The appellants are said to have arrived there in a private car and a tandem, and after assaulting Chhote Rai, to have gone away in these two vehicles. After investigation, the ~ppellants were prosecuted under ss. 307 i· 34 and 148 of the Indian Penal Code, with the result already mentioned.

p. 949

Before the order of discharge was made, the Magistrate heard the· evidence of nine witnesses including Chhote Rai and Ragbunath, who had given the first information report. Tho witn!'sses also includtod two other alleged eye-witne>:oes, Bhushan ::iingh (P.W. 2), aud ::-heonandim Yadcv (P.W. 6). The Magistrate, aft.tr nicording the evidence and holding a spot inspection and hearing the parties, discharged the appellants, as he "a;; of opinion (in his own words)- ·

pp. 949–950

"in view of the aforesaid di8ere pant, unreliable and incredible and highly int<·rested prosecution evidence, no Court can consider it worthwhile prirna f acie even for a t1 ial. In a case af this nature. it is the l<"gal obligatiun of a Magistrate to discharge the a<·cus<·d

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persons, as disc118sed above." The Magistrate reached this conclusion on a fairly Jong appraisal of the evidence in the caso, cliscussing it front tho angle of credibility of witnrsses, their antecedents, the probabilities of the !''lse, the nature of the allegt•d weapon, the medical evidence and ;o on. In short, it will not be wrong to say that h<: tried the case, instead of finding out whether there was no ground for sending up the appellants to stand their trial before th<' Court of Session. The High Court, in the or<lf'r under appeal, held that the Magistrate went heyon<l thu powers conferred u,pon him of enquiring into th11 case with a. view to committing it to the court of Se88ion.

p. 950

ScC'tion 207 A is a new ~ection, which has been introduced by the Code of Crimin1~l Proccdur1~ (Amenrlmcnt) Act, IU55 (:!6 of 195;)). It lays down the procedure which the Magistrates must follow in a.n enquiry in proceedings started on a pulice report, preparatory to commitment of to the Court of :-iession. Suh-scdin1rn (l ). (:!)and (3) deal with th1> fixing of dat""· iH•uing of procc&.•cs and ensuring that copies of the <l<H:ument• referrer! to in s. J7:l of the Code of Criminal Procedure have been furnished to the accused. Sub-section (4) then enjoins upon the Magistrate that he shall proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the alleged offence, and also enables him to take the evidence of any one or more of the other witnesses for the prosecution as he considers, in his opinion, necessary. The sub-section divides the witnesses into two categories, viz... witnesses to the actual commission of tho offence and other witnesses like formal witnesses, or those who cannot depose to the actual commission of the offence. Of the first category, those that the prosecution produces, must be examined; but the other witnesses may be examined, only if the Magistrate considers it necessary. It seems, prima facie, that the prosecution cannot insist on their examination. An accused is given by subs. (5} a right to cross-examine the witnesses, who a.re examined, and the prosecution can also reexamine them. Then comes sub·s.(6), which reads as follows :-

pp. 950–951

"When the evidence referred to in subsection \4) has been taken and tbe Magistrate has considered all the documents referred to in section l 73·and has, if necessary, examined the accused· for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and tho accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it app0ars to the Magistra~ that such person ~houlrl bn tried before himself or some other Magi>trate, in which case he shall proceed accordingly."

p. 951

This sub·section, it is contended, gives the Magistrate the option not to oommit an accused but to disohargo him, if he is of opinion. for reasons to be recorded, that the evidence discloses no grounds for committing the accused peNon, unless it appears to him that the person should be tried before himself or some other Magistrate. The Magistrate, in this case, thought that the power conferred upon him by this sub-section enabled him to examine the evidence throughly, and if it did not satisfy him, to discharge the accused. This view of the Magistrate was not accepted by the High Court.

pp. 951–952

Mr. Sarjoo. Pra88d for the appell,nts, contends, on the basis of the ruling of this Court in Ramgopal Ganpatrai Ruia v. TM State of Bombay (' ), that the course followed by the Magistrate in determining whether there was credible evidence or not was the right course, and point!! to certain passages in the jud2ment in the above case as supporting his proposition. The cited case interpreted s. 209 of t·ho Code of Criminal Procedure, which, after amendment of the Code by Act 26 of 1955, deals with proceedings instituted otherwise than on a police report, and under whirh the Magi~trate can discharge accused if he finds that there aro "not sufficient grounds" for committing the accused person for trial. The words of the two SPctions are not the samll, and it is possible to sa. y that the force of the two sections is also not the same, and that s. 209 gives a power to enter upon the merit~ of a case in manner which s. 207 A doer not warrant. Whether the ~hanp;e of the language iR deliberate or due to the fact that different draftsm1•n drafted tho two sortions, the test for diecharging the accused must, in a large way, be the same under both tho sections, and it is hardly necessary to decide the full of ambit of s. ~07 A. and contrast it with that of 20!l. If there is any indic ition in the la11gua11e, it is altogether on the side that. the Magistrate must find a stronger case for discharging an accuso<l under s. 207 A than under s. 209. But, whatever the meaning of the two expresRions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the sessions trial was before him. To this extent, Mr. Sarjoo Prasad fairly concedes, s. 207 A ( 6) cannot b'.l carried. Put in other words, the section can only mean that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the 3ccused to the Court of Session to stand his trial. What those cases would be, which would satisfy the test, may not generally be stated here, because, in our opinion, this case is far from the borderline, where only difficulties are likely to be met.

pp. 952–953

In this case, we are clear, on a reading of the reasons recorded by the Magistrate, that he did not stop to find out that there was evidence which, if believed, would establish, at least, a prima facie case but went on further to disbelieve that evidence by an elaborate and painstaking process of examination, in aid of which he brought to bear his own appraisal of inconsistencies, improbabilities etc. In short, he tried the whole case from one end to the other and established his point, as has been said already, in a fairly elaborate order. In this process, he disbelieved the injured person, other eye-witnesses, contrasted the oral testimony of how the offence took place with the medical evidence and his own conclusions drawn from an inspection of the site and other matters, to numerous to detail here.

p. 953

In our opinion, whatever the jurisdiction conferred by sub-s.(6) of s. 207A, it does not entitle a Migistrate to try the case ou his own, and forestall the decision of the Court of Session, and this is what the Magistrate, in fact, did here. We, therefore, agi·eo that the order of discharge passed by him was in excess of his jurisdiction, and it ls h11.rdly necessa.ry in this case to show how far a Mal!?istrate ca.n go to find that there is no ground for committing the accused to stand bis trial in a Court of Seesion. We seo no reason to interfere with the order of the High Court, 11.nd diemiAs the 11.ppeal.

pp. 953–954

It is a matter of regret that much delay ha.s taken place in this ca.se, and it may harm the case on the one side or the other. We hope that now thll case will be he11.rd from day to day, 11.nd disposed of, expeditiously possible. We further make it clear to the Court or Courts de11.ling with this case that any expression of opinion on the merits of th" case whether b:v us or by the High Court or the Magistrate, who first heard it, or elRe where, in this ordPr or the ordrrs prece· ding this, is to be completely ignored. and the case shall be decided without being influPncecl in any way by Ruch expression of opinion.

p. 954

Appeal dismissed. RAMALINGAM & CO.

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v.

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THE Sl'ATE OF MADRAS (S. K. M. and J. C.

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JJ.)

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Salu Taz-Contratt of ban~us paym.nt-Whtfh-r in

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;,. Mttdraa-Pooition of banker1 Vi•-a-Via and foreign buy.,,_J,.i.,,,.,diary if ulkr-Madra1

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The .._....,. were doing busine" principally as expor· ters of vcg<table fon:ign countri<s. The contracts of sale wen: C.I.F. or C.F. and wen: made by correspondence on approval of samples sen! the a.scssr<S to the fo~ign buy<rs. The price was payable by draft upon bank credit to opened by the buyer ; who opened with bis own bankers

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