Chhadami Lal Jain And Others vs The State Of Uttar Pradesh Andanother

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 143 of 1957

Decision Date: 14 September 1959

Coram: K.N. Wanchoo, Syed Jaffer Imam, J.L. Kapur, A.K. Sarkar

In the case titled Chhadami Lal Jain and Others versus the State of Uttar Pradesh and another, the Supreme Court delivered its judgment on 14 September 1959. The opinion was authored by Justice K.N. Wanchoo and the bench comprised Justices K.N. Wanchoo, Syed Jaffer Imam, J.L. Kapur, and A.K. Sarkar. The citation for the decision is recorded as 1960 AIR 41 and 1960 SCR (1) 736. The matter concerned provisions of the Criminal Trial-Commitment Order and involved the quashing of a magistrate’s order of commitment in a case that had been tried as a warrant case. The issues raised included whether the magistrate had complied with the procedural requirements of the Code of Criminal Procedure, 1898 (V of 1898), particularly sections 208, 347 and 537, and whether the accused had been prejudiced by the lack of opportunity to adduce defence evidence before the commitment order was passed.

The complaint that initiated the proceedings was filed against seven individuals under sections 409, 465, 467, 471 and 477A of the Indian Penal Code. After the complainant was examined, summonses were issued to the accused to answer a charge under section 406. The magistrate commenced the trial as a warrant case; during the trial, prosecution witnesses were examined and cross-examined, and the statements of the accused were recorded. The magistrate also heard arguments concerning the framing of charges. Subsequently, the magistrate framed charges under sections 409 and 465 read with sections 471 and 477A, and without giving any prior notice of his intention to commit the case, he passed an order committing the appellants to the Court of Sessions. The appellants contended that the commitment was illegal because, once a trial had begun as a warrant case, the magistrate was required, under Chapter XVIII of the Code of Criminal Procedure, to follow the procedure laid down in sections 208 to 213 when deciding to commit the case to the Court of Sessions. They argued that the magistrate failed to comply with section 208, thereby violating the procedural safeguards. The complainant, on the other hand, argued that even if sections 208 to 213 had not been observed, no prejudice was caused to the appellants and therefore the commitment order could not be set aside. The Court held that the commitment order was illegal because the magistrate had not complied with the requirements of section 208 of the Code of Criminal Procedure. Since the proceedings had begun as a warrant case, the magistrate, upon deciding to commit the matter to the Court of Sessions, was obligated to act under section 347(1) of the Code and to follow the prescribed procedure for inquiries in Chapter XVIII. Accordingly, when the magistrate decided to commit the case, he should have refrained from framing the charge, should have informed the accused of his intention to commit the case, and should have called upon the accused to produce any defence evidence they might have. The failure to intimate the intention to commit deprived the accused of the right to present defence evidence, rendering the commitment order invalid.

The Court observed that the failure to invite the accused to produce defence evidence, as required by Section 208, deprived them of a statutory right. The denial of this right itself constituted prejudice against the accused and resulted in a miscarriage of justice, because the accused were blocked from presenting evidence that might have persuaded the Magistrate not to frame charges against them. The Court referred to the authorities of Subramania Iyer v. King-Emperor (1901) L.R. 28 I.A. 257, Pulukuri Kotayya v. King-Emperor (1948) L.R. 74 I.A. 65, and Narain Rao v. The State of Andhra Pradesh [1958] S.C.R. 283 in support of this proposition.

In the present criminal appeal, designated as Criminal Appeal No. 143 of 1957, the appellant sought relief from a certificate granted by the Allahabad High Court. The appeal arose from the judgment and order dated 8 May 1957 of that Court in Criminal Reference No. 149 of 1956, which itself derived from the judgment and order dated 14 January 1956 of the First Additional Sessions Judge, Agra, in Sessions Trial No. 141 of 1954 and Criminal Miscellaneous No. 1 of 1956. Counsel for the appellants were G. S. Pathak and Mohan Behari Lal, while counsel for Respondent No. 1 were G. C. Mathur, C. P. Lal and G. N. Dikshit, and counsel for Respondent No. 2 was Janardan Sharma. The judgment was delivered on 14 September 1959 by Justice Wanchoo.

The Court noted that the appeal concerned a certificate issued by the High Court in a criminal matter and that the factual background needed to be set out in detail to illuminate the issue raised. A complaint had been lodged by Rajendra Kumar Jain against four appellants and three other individuals, invoking Sections 409, 465, 467, 471 and 477A of the Indian Penal Code. While the Court deemed it unnecessary to reproduce the entire complaint, it clarified that subsequent to the complainant’s statement under Section 200 of the Code of Criminal Procedure (hereinafter “the Code”), summonses were issued to the accused requiring them to answer a charge under Section 406 of the Penal Code.

Prosecution witnesses were examined and cross-examined, and the statements of the accused were recorded. The Magistrate then heard arguments concerning the framing of charges, concluding this stage on 23 September 1954. An order was made that the case would be listed for further orders on 30 September 1954. On that date the Magistrate framed charges against the four appellants under Sections 409 and 465, read with Sections 471 and 477A of the Penal Code, and on the same day ordered their commitment to the Court of Session on those charges. The remaining three accused were discharged.

Following the discharge, Rajendra Kumar Jain filed a revision petition challenging the release of one of the three discharged persons, namely Bhajan Lal. When the matter was presented before the First Additional Sessions Judge, Agra, the Judge, after reviewing the earlier commitment order, issued a suo motu order on 9 April 1955 directing that Bhajan Lal also be committed to the Court of Session for trial. Consequently, the revision petition was dismissed as infructuous. Thereupon Bhajan

Lal appealed the order of commitment to the High Court, and the petition was heard by Justice Roy. Justice Roy set aside the commitment order against Bhajan Lal, holding that a magistrate does not have the authority to frame a charge or order a commitment until the accused has been given an opportunity to present any defence evidence. Because Bhajan Lal had not been called upon to produce such evidence, the commitment made by the Sessions Judge was found to be contrary to law. Justice Roy’s order was dated 6 October 1955. Subsequently, on 7 January 1956, the four appellants filed a revision petition before the Sessions Judge, seeking to have the commitment order against them cancelled. Their principal argument was that the magistrate had failed to comply with the mandatory procedural provisions laid down in sections 208 to 213 of the Code of Criminal Procedure, which are essential for a valid commitment. The same First Additional Sessions Judge considered this petition and, observing that the magistrate’s procedure was irregular, referred the matter to the High Court, contending that the commitment order dated 30 September 1954 was illegal and should be set aside. The reference was then placed before another High Court judge, Justice Chowdhry, who concluded that the magistrate had not violated section 208 and that any breach of sections 211 and 212 could be remedied under section 537 of the Code. Accordingly, Justice Chowdhry rejected the reference. An application for a certificate of appeal to the Supreme Court was subsequently filed and granted, principally because Justice Chowdhry’s view conflicted with the earlier view of Justice Roy. The appellants now contend before this Court that the case originated before the magistrate as a warrant case under section 406 of the Penal Code, and therefore, when the magistrate, relying on section 347(1) of the Code, decided that the matter should be committed to the Court of Session, he was required to follow the procedure prescribed in Chapter XVIII of the Code. Since the magistrate allegedly failed to observe the procedures in sections 208 to 213, the appellants argue that the commitment is legally defective and must be quashed. The principal issue for consideration, therefore, is whether the magistrate, at the commencement of these proceedings, was conducting the trial in accordance with the rules applicable to warrant cases. Section 347(1) of the Code becomes applicable when, at any stage of a magistrate’s trial, it appears to the magistrate that the case ought to be tried by the Court of Session; the magistrate must then commit the accused in accordance with the provisions contained therein. The Sessions Judge who made the earlier commitment order is the subject of this inquiry.

The reference held that the proceedings before the Magistrate had been conducted from the outset as if they were a trial of a warrant case. On that basis, the Sessions Judge concluded that when the Magistrate decided, pursuant to section 347(1) of the Code, that the case should be committed to the Court of Sessions, he was obligated to follow the procedure prescribed in Chapter XVIII, specifically the provisions of sections 208, 211 and 212 of the Code. Consequently, the order of reference was forwarded to the Magistrate requesting any explanation he might have, and the Magistrate replied that he had no explanation to offer. In his reply, he did not state that he was not proceeding as in a warrant case nor did he claim that the proceedings before him were, throughout, of the nature of an inquiry under Chapter XVIII. When the matter subsequently reached the High Court, Justice Chowdhry expressed the view that although the Magistrate was competent to try the case merely because summonses had been issued under section 406 of the Penal Code, the Magistrate nevertheless retained the option to conduct an inquiry under Chapter XVIII from the very beginning. This option was grounded in section 207, which authorises a Magistrate to apply the procedure of Chapter XVIII in cases that are exclusively triable by a Court of Sessions as well as in cases that are not exclusively triable by a Court of Sessions but which, in the Magistrate’s opinion, ought to be tried by that Court. The High Court further observed that the offence mentioned in the summons should be interpreted as giving notice to the accused that the Magistrate could either hold an inquiry with a view to committing them to the Court of Sessions or try them himself as in a warrant case, because column 8 of Schedule 11 of the Code indicates that a case under section 406 is triable by a Court of Sessions, a Presidency Magistrate or a first- or second-class Magistrate. Accordingly, the High Court considered that it remained an open question whether the Magistrate would adopt one procedure or the other, despite the issuance of summonses under section 406 of the Penal Code, and that nothing had occurred to create a belief in the accused that they would be tried as in a warrant case. The High Court therefore held that the matter had proceeded from the beginning as an inquiry under Chapter XVIII and, on that basis, found no violation of section 208 of the Code. Regarding alleged non-compliance with sections 211 and 213, the High Court opined that any defect was curable under section 537 of the Code because no prejudice had been caused. The Court, however, expressed the view that this understanding of the nature of the Magistrate’s proceedings was not correct, acknowledging that while a Magistrate may have the power to hold an inquiry from the start under Chapter XVIII in a case not exclusively triable by the Court of Sessions, such power alone does not automatically indicate to the accused that an inquiry, rather than a trial, is being conducted.

In this case, the Court noted that a Magistrate may, from the outset, conduct an inquiry under Chapter XVIII even when the offence is not exclusively triable by the Court of Session. However, the mere existence of that power did not automatically convey to the accused that the proceeding was an inquiry rather than a trial conducted before the Magistrate. Because the offence was not exclusively triable by the Court of Session, a reasonable accused would ordinarily perceive the proceedings before the Magistrate as a trial and not as an inquiry under Chapter XVIII. Accordingly, if a Magistrate intended to invoke the authority granted by section 207 and start an inquiry in such a case, the only method by which the accused could be aware that an inquiry and not a trial was being held was for the Magistrate to expressly inform the accused that the proceeding was an inquiry under Chapter XVIII. In the absence of such a clear indication, the accused would be justified in concluding that a trial was taking place. The Court observed that, in the present matter, the Magistrate had failed to disclose from the beginning that the proceedings were intended to be an inquiry under Chapter XVIII. Consequently, the accused naturally inferred that the process before the Magistrate was a trial of a warrant case, particularly because the summonses they received were issued only under section 406 of the Penal Code. The presence of a reference to section 467 in the complaint, an offence that is exclusively triable by the Court of Session, did not alter the character of the summonses, which remained limited to section 406. Therefore, the Court held that the proceedings before the Magistrate commenced as a trial of a warrant case. If, at a later stage, the Magistrate came to the view that the case should be committed to the Court of Session, the Magistrate would be required to act under section 347(1) of the Code. The Court further explained that the analysis would differ where the offence were exclusively triable by the Court of Session and the proceedings began from the outset as an inquiry under Chapter XVIII. Hence, the remaining discussion applied solely to cases that started as warrant or summons proceedings and where the Magistrate later exercised the power contained in section 347(1). The Court then turned to examine the duty of a Magistrate who decides to act under section 347(1). That provision states: ‘If in any inquiry before a Magistrate or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if…’

In this case the Court explained that the provision states that when a magistrate has the power to commit an accused for trial, the magistrate must do so “under the provisions hereinbefore contained.” The first issue to be resolved was the meaning of those words. Several High Courts had addressed the same phrase and were unanimous that it required the magistrate, once he decided at any stage of the trial to commit the accused, to follow the provisions laid down in Chapter XVIII of the Code. The Court noted that the expression itself was clear and did not need to be quoted. It therefore held that the magistrate, upon concluding that the case should be committed, must act in accordance with the procedural rules contained in the earlier part of the Code, namely Chapter XVIII. This requirement did not mean that the magistrate had to start the proceedings afresh. The magistrate’s duty was simply to inform the accused of the decision to commit and to ensure that the provisions of Chapter XVIII were observed for any steps that had not yet been completed at the moment of commitment.

The Court then set out the procedure prescribed in Chapter XVIII, which is contained in sections 208 to 213 of the Code. First, the magistrate was required to hear the complainant, if any, and to take all evidence that could be produced in support of the prosecution or on behalf of the accused, or any other evidence the magistrate chose to call. The magistrate also had the authority to issue process to compel the attendance of any witness or the production of any document or other thing, when the complainant or the officer conducting the prosecution applied for such process. After the evidence was taken under section 208, the magistrate was required to examine the accused so that the accused could explain any circumstances appearing in the evidence against him, as provided in section 209.

Following this examination, the magistrate formed an opinion on whether there were sufficient grounds to commit the accused for trial. If the magistrate found that the grounds were insufficient, he could discharge the accused unless he thought that the person should be tried before himself or another magistrate, in which case he would proceed accordingly. Conversely, if the magistrate concluded, after taking the evidence and examining the accused, that sufficient grounds existed for commitment, he was obliged to frame a charge under section 210. The charge had to be read out, explained to the accused, and a copy furnished to the accused free of cost if the accused requested it.

After the charge was framed, the magistrate, under section 211, called upon the accused to provide a list of persons, either orally or in writing, whom the accused wished to have summoned to give evidence at his trial. The magistrate could also, at his discretion, allow the accused to furnish an additional list at a later stage. Section 212 gave the magistrate discretionary power to summon and examine any witness named in any list provided under section 211. Finally, section 213 stipulated that if the accused refused to give a list as required by section 211, or if the accused had given a list and the magistrate had summoned and examined the witnesses named therein, the magistrate could make an order committing the accused for trial by the High Court or the Court of Session and was required to briefly record the reasons for such commitment. On the other hand, if after hearing the defence witnesses the magistrate was satisfied that there were not sufficient grounds for commitment, he could cancel the charge and discharge the accused. The Court also observed that section 208 conferred upon the accused the right to produce evidence in defence before the magistrate examined him.

The Magistrate may, at his discretion, allow the accused to submit an additional list of witnesses at a later stage of the proceedings. Section 212 empowers the Magistrate, also in his discretion, to summon and examine any witness whose name appears in any list provided under section 211. Section 213 provides that if the accused refuses to furnish a list as required by section 211, the Magistrate may commit the accused for trial before the High Court or the Court of Session. Alternatively, if the accused supplies a list and the Magistrate has summoned and examined the witnesses named therein under section 212, the Magistrate may issue a commitment order and must record reasons for the commitment. Conversely, if after hearing the defence witnesses the Magistrate is satisfied that the evidence does not establish sufficient grounds for commitment, he may cancel the charge and discharge the accused. An examination of these provisions shows that section 208 guarantees the accused right to produce defence evidence before the Magistrate proceeds to examine him under section 209 and to frame a charge under section 210. When a Magistrate decides to commit a case not triable by the Court of Session, he must act under section 347(1) of the Code and follow the steps set out in sections 208 to 213. However, the Magistrate is not required to restart the entire procedure each time he decides to commit; he may make this decision at any point during the trial. Generally, four possible situations may arise depending on the stage of the trial at which the Magistrate reaches the decision to commit. First, the Magistrate may decide after the trial is essentially concluded, meaning that the prosecution witnesses have been examined and cross-examined. At that point, the accused has also been examined under sections 253 and 342 of the Code and all defence evidence has been taken.

In such a situation, the requirements of sections 208, 209, and 210 have already been satisfied, therefore the Magistrate merely needs to inform the accused of his intention to commit. He then asks the accused for a list of witnesses under section 211 and proceeds thereafter in accordance with Chapter XVIII. Second, the Magistrate may reach the decision after the prosecution witnesses have been examined and cross-examined and a charge has been framed, but before any defence evidence has been taken. In this case, the portion of section 208 that mandates the taking of all prosecution evidence has already been fulfilled. The Magistrate may now collect the defence evidence, continue the procedure under sections 209 to 213, and either amend the charge so that it conforms to an inquiry under Chapter XVIII or cancel it. Third, the Magistrate may decide after some of the prosecution witnesses have been examined and cross-examined and a charge has already been framed. In that event, he must examine the remaining prosecution witnesses under section 208 and take any defence evidence produced by the accused. After completing those steps, he proceeds under sections 209 to 213, amending or cancelling the charge already framed as indicated earlier. Lastly, the Magistrate may be at the very beginning of taking prosecution evidence and may not yet have framed a charge. In such a scenario, he must continue to take the remaining prosecution evidence and then comply with the requirements of sections 208 to 213. Regardless of which of these four situations arises, the Magistrate has a duty to inform the accused that he has decided to commit the case under the authority of section 347(1). He must then proceed in the manner indicated in the preceding discussion, adhering to the procedural requirements of sections 208 through 213. It is essential that the accused be aware when the Magistrate decides to commit, so that his right under section 208 to produce defence, if any, can be exercised.

In a situation where the magistrate has examined and cross-examined some prosecution witnesses and has already framed a charge, he must first examine the remaining prosecution witnesses under section 208. After completing that examination, the magistrate must take any defence evidence produced by the accused and may then, pursuant to sections 209 to 213, amend or cancel the charge that was previously framed. The magistrate may also be at a stage where he has only just begun taking prosecution evidence and has not framed any charge. In that circumstance he must complete the remaining prosecution evidence and must obey the provisions of sections 208 through 213. Regardless of which of the four possible situations obtains, the magistrate is obligated to inform the accused that he has decided to commit them under section 347(1). Such notice is essential so that the accused’s right under section 208 to produce defence evidence before commitment is protected. The factual background of the present case is that the magistrate had apparently taken all prosecution evidence and all prosecution witnesses had been examined and cross-examined. Up to 30 September 1954 the magistrate had not framed any charge, although he had heard arguments on whether a charge should be framed and had fixed that date for his orders. Consequently, when on 30 September 1954 he resolved that the case should be committed to the Court of Session, the proper procedure was to refrain from framing a charge. He also should have intimated to the accused that he intended to commit them for trial and then called upon them to produce any defence evidence under section 208 before proceeding under Chapter XVIII. However, the magistrate failed to give such intimation and, on the same date, immediately framed charges and recorded an order committing the accused to the Court of Session under section 213 of the Code. By taking that step he deprived the accused of the opportunity guaranteed by section 208 to lead defence evidence, if any, before commitment. It is conceivable that, had the magistrate informed the accused of his intention to commit under section 347(1) and asked whether defence evidence existed, the accused might have replied they had no defence to present. Whether the accused would have actually answered in that way is irrelevant to the legal question of whether the commitment was defective. This is because the procedure failed to satisfy the requirement of section 208 to allow the accused to produce defence evidence before commitment. Consequently, the fact remains that the magistrate’s commitment did not comply with the statutory safeguard provided in section 208.

In the present matter the magistrate, after deciding to proceed under section 347 (1), failed to inform the accused of that decision. He then immediately committed the accused to trial under section 213, thereby denying them the opportunity to present any defence evidence that they might have wished to produce under section 208. The next issue for the Court to consider is the consequence of this failure to comply with section 208 of the Code and whether such a defect can be remedied under section 537 of the Code. The question of non-compliance with various provisions of the Code and the possibility of curing such non-compliance under section 537 has been examined in a large number of decisions of different High Courts and also before the Judicial Committee of the Privy Council. Reference to that extensive body of authority is unnecessary. One of the earliest Privy Council decisions is Subramania Iyer v. King-Emperor (1), while one of the more recent is Pulukuri Kotayya v. King-Emperor (2). The Judicial Committee summed up the law in the latter case (2) at page 75 as follows: “When a trial is conducted in a manner different from that prescribed by the Code (as in N.A. Subramania Iyer’s case (1)), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the code.” The distinction drawn in many Indian cases between an illegality and an irregularity is therefore one of degree rather than of kind. This approach was endorsed in Abdul Rehman v. The King-Emperor (1), where failure to comply with sections 360 of the Code of Criminal Procedure was held to be curable by sections 535 and 537. Those observations were later quoted with approval by this Court in Narain Rao v. The State of Andhra Pradesh (2).

Consequently, it appears unnecessary to determine whether the breach of section 208 in the present case constitutes an illegality that cannot be cured by section 537 or an irregularity that is curable under that provision. Because the trial has not yet commenced, there is no issue of whether the trial has been conducted in a manner that departs from the Code. The real question is whether the breach of section 208 that has occurred is such that the Court must presume prejudice to the accused merely by virtue of the breach. If such a presumption of prejudice can be made, the breach would clearly not be curable under section 537 of the Code.

The Court examined whether the violation of section 208 of the Code was of such a character that it would permit a presumption of prejudice to the accused solely on the basis of that breach. Under section 208 an accused person is entitled to present any defence evidence before the Magistrate decides whether to frame a charge. If the accused produces evidence, the Magistrate must consider the impact of that evidence on the question of charge framing. Consequently, denying the accused the opportunity to lead defence evidence that he is statutorily entitled to present inevitably results in prejudice to him. In such circumstances section 537 of the Code cannot be invoked to cure the irregularity. The Court noted that the hypothetical possibility that the accused might have declined to produce defence evidence, even if the Magistrate had asked, does not alter this conclusion. This observation was supported by the authorities cited as (1) (1926) L.R. 54 I.A. 96 and (2) [1958] S.C.R. 283. Accordingly, the Magistrate was obliged to inform the appellants that he intended to commit them for trial and to invite them to produce any defence evidence. Had the accused refused to produce such evidence, the Magistrate would have lawfully proceeded with the commitment. However, the Magistrate in this case neither intimated his intention to commit nor offered the appellants the chance to lead defence evidence before framing charges on 30 September. By omitting that requirement, the Magistrate denied the appellants their statutory right under section 208, thereby causing prejudice and a failure of justice. The denial prevented the appellants from presenting evidence that might have led the Magistrate either not to frame a charge or to cancel an already framed charge. The Court therefore held that the breach of section 208 was sufficient to render the commitment unlawful and that no relief could be sought under section 537. As a result, the order of commitment was declared void and was to be set aside on that ground alone. The petition of appeal also raised alleged violations of sections 211, 212 and 213 of the Code. Since the violation of section 208 already invalidated the commitment, the Court found it unnecessary to examine the effect of the alleged breaches of sections 211, 212 and 213.

In this case, the Court noted the additional alleged violations of sections 211, 212 and 213 of the Code. Although it had already held that the breach of section 208 required the commitment order to be set aside, the Court stated that the reasoning applied to section 208 could not be automatically extended to the alleged breaches of the other three sections. The Court explained that each of those provisions carries its own set of considerations, and the consequences of violating them might differ from those of violating section 208. Accordingly, the Court could not treat the effect of the breach of section 208 as controlling for the breaches of sections 211, 212 and 213. The Court highlighted that sections 211, 212 and 213 deal with distinct procedural safeguards, and that the impact of denying rights under those sections may not be identical to the impact of denying the right provided by section 208. Because the record did not establish the precise effect of the alleged breaches of those sections, the Court considered it prudent to remand the matter so that the Magistrate could examine them afresh under the correct legal standards. After making these observations, the Court concluded that the appeal should be allowed. Consequently, the Court ordered that the order of commitment be quashed, that the charges that had been framed against the accused be set aside, and that the case be sent back to the Magistrate for further proceedings in accordance with law. The Court directed that the Magistrate proceed as indicated earlier in the judgment, ensuring that any further proceedings respect the accused’s rights under the Code and that any new charge or commitment be made only after complying with the statutory requirements. The appeal was thereby allowed.