Shriram and Others vs The State Of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 57 and 58 of 1960

Decision Date: 5 December 1960

Coram: Syed Jaffer Imam, Raghubar Dayal, Subba Rao

In the matter titled Shriram and Others versus The State of Bombay, the Supreme Court of India delivered its judgment on 5 December 1960. The bench consisted of Justice Syed Jaffer Imam and Justice Raghubar Dayal, with Justice Subbarao also mentioned as part of the bench. The petitioners were identified as Shriram and others, while the respondent was the State of Bombay. The case is reported in the year 1961 at AIR 674 and also in the Supreme Court Reporter at 1961 SCR (2) 890, with subsequent citations appearing in R 1965 SC 712, RF 1966 SC 595, and R 1976 SC 263. The legal issue concerned a provision of the Criminal Procedure Code of 1898, specifically section 207‑A, dealing with the circumstances under which a magistrate may commit an accused to the Sessions Court without recording any evidence. The headnote explains that on the date fixed for an inquiry the prosecution informed the magistrate that it would not call any witnesses before the magistrate’s court. The magistrate therefore adjourned the inquiry to determine whether any evidence needed to be recorded prior to commitment. When the matter was reconvened, the magistrate expressed the opinion that examination of witnesses was unnecessary, proceeded to frame charges against the appellants, and committed them to the Sessions Court. The appellants argued that the magistrate lacked jurisdiction to commit them without taking witness testimony, invoking sub‑section (4) of section 207‑A. The Court held that the commitment order was valid and that the magistrate possessed the authority to commit without recording evidence. The Court clarified the position under section 207‑A as follows: (i) the magistrate is required to take evidence only from eye‑witnesses actually produced by the prosecution before the committing court; (ii) if the magistrate believes that justice requires taking evidence, whether from eye‑witnesses or others, he has a duty to do so; (iii) if the magistrate is not of that opinion and the prosecution has not examined any eye‑witnesses, the magistrate may discharge or commit the accused on the basis of documents referred to in section 173 of the Code; and (iv) the magistrate’s discretion is a judicial discretion subject to correction by a superior court, as illustrated by the cited case of Macherla Hanumantha Rao v. The State of Andhra Pradesh, [1958] SCR 396.

The appeals, numbered Criminal Appeals Nos. 57 and 58 of 1960, were filed by special leave against the judgment and order dated 5‑6 November 1958 of the Bombay High Court at Nagpur in Criminal Appeal No. 94 of 1958. Counsel for the appellant in Criminal Appeal No. 57 was Jai Gopal Sethi together with G. C. Mathur, while G. C. Mathur also represented the appellant in Criminal Appeal No. 58. Counsel for the respondent comprised Gopal Singh and D. Gupta. The case was heard on 5 December 1960, and the judgment was delivered by Justice Subbarao. The Court observed that the two appeals raised an important question regarding the interpretation of section 207‑A of the Criminal Procedure Code. The factual backdrop, summarized in the subsequent portion of the judgment, involved an incident that occurred on 29 November 1957, wherein a person named Sadashiv was murdered in the courtyard of his house in the village of Nimgaon. The prosecution’s case alleged that four appellants, armed with sticks, entered the house, forced the victim out, and beat him with sticks, leading to his death the following day around 5 p.m. at Bhandara Hospital. Following investigation, the police submitted a report to the magistrate under section 173 of the Code together with relevant documents. The officer in charge of the police station then provided the appellants with a copy of the report, the First Information Report recorded under section 154, and all other relevant extracts, including statements recorded under sub‑section (3) of section 161, and also informed them of the persons the prosecution intended to examine.

The incident giving rise to the appeals occurred on 29 November 1957 when Sadashiv was killed in the courtyard of his house at Nimgaon; the prosecution alleged that the four accused, each armed with a stick, entered the deceased’s residence, dragged him out, and beat him with sticks, causing his death on the following day at about five o’clock in the evening at Bhandara Hospital. After completing their investigation, the police forwarded a report to the Magistrate under section 173 of the Code together with all relevant documents, and the officer in charge of the police station supplied the accused with a copy of that report, the First Information Report recorded under section 154, and all other documents or extracts on which the prosecution intended to rely, including statements recorded under subsection (3) of section 161 and a list of persons the prosecution proposed to examine as witnesses.

The Magistrate scheduled the case for inquiry on 10 February 1958, at which time the prosecution informed the court that it would not call any witnesses before the Magistrate. No objection was raised by the accused to this course, but the Magistrate adjourned the inquiry to 12 February 1958 in order to consider whether any evidence should be recorded prior to committing the accused. On 12 February 1958 the Magistrate reiterated his view that no witness needed to be examined at that stage, thereafter framing charges against the accused under section 302 read with section 34 of the Indian Penal Code and also under section 448, and committing them to the Sessions Court for trial.

Before the learned Sessions Judge, the prosecution presented four categories of evidence: first, the testimony of eye‑witnesses identified as PW 6, PW 11, PW 20 and PW 25; second, a dying declaration marked as Exhibit P‑15, supported by the testimony of PW 18, PW 22 and PW 19; third, the identification of the accused while they were in custody by PW 20 and PW 25; and fourth, the recovery of various articles discovered at the instance of the accused‑appellants. The defence examined four witnesses in response.

After evaluating the entire body of evidence, the Sessions Judge concluded that the prosecution case had been fully substantiated. He held that the accused had entered the deceased’s house and beaten him as described, inflicting at least twelve confused wounds that resulted in rib fractures and lung injury, and that, according to the medical opinion, death resulted from shock and haemorrhage caused by those injuries. Consequently, the Judge found the accused guilty of murder, convicting them under section 302 read with section 34, and also convicted them under section 448 for trespassing into the deceased’s house.

In the first instance, the learned Sessions Judge imposed a sentence of life imprisonment for the murder charge and an additional term of three months’ rigorous imprisonment for the trespass charge against each of the appellants. Both the appellants and the State appealed this judgment before the High Court of Bombay at Nagpur. After a fresh examination of the entire evidentiary record, the High Court judges concurred with the factual findings of the Sessions Judge but concluded that the proper charge was under section 304, Part 1, in conjunction with section 34 of the Indian Penal Code, rather than under section 302. Consequently, the High Court altered the punishment, reducing the life term to ten years’ rigorous imprisonment for appellant 1 and to seven years’ rigorous imprisonment for appellants 2, 3 and 4. The appellants subsequently obtained special leave to appeal these convictions and sentences before this Court. Criminal Appeal No. 57 of 1960 was filed by the first appellant, and Criminal Appeal No. 58 of 1960 was filed jointly by appellants 2, 3 and 4. The counsel appearing for the appellants raised two principal questions before this Court. First, they contended that neither the Sessions Court nor the High Court had properly appreciated the evidence and the surrounding circumstances, thereby failing to establish the guilt of the appellants. Second, they argued that the trial and conviction were void because the Magistrate who committed the accused to the Sessions Court lacked jurisdiction to do so without personally examining the witnesses under sub‑section (4) of section 207A of the Code, and that any defect in the committal order could not be cured by the provisions of sections 532 or 537 of the Code. The Court found that the first contention did not merit consideration, observing that both lower courts had carefully assessed the prosecution’s and the appellants’ evidence and had accepted the prosecution case. It reiterated the well‑settled principle that this Court does not interfere with concurrent factual findings of lower courts except in exceptional circumstances, which were absent here, and therefore rejected the first claim. Turning to the second claim, the Court noted that resolving it required an interpretation of the relevant provisions of section 207A. For that purpose it was helpful to recall the historical background of the section. Originally, the Criminal Procedure Code made no distinction between committal proceedings initiated on the basis of a police report and those instituted otherwise. The principal purpose of such committal proceedings was to conduct an inquiry that would ascertain and record the matters to be tried before a Sessions Court, thereby allowing the accused to learn in advance the particulars of the evidence that would be presented against him and to prepare an effective defence. An additional objective was to enable the Magistrate to discharge an accused where no prima facie case existed, thus preventing unnecessary harassment of the accused and conserving the time of the Sessions Court.

In this case, the Court explained that the original purpose of the committal proceeding was not only to allow the accused to learn the particulars of the evidence that would later be presented before the Court of Sessions, but also to give the Magistrate the authority to discharge an accused where the prosecution had failed to establish any prima facie case. By permitting an early discharge, the procedure protected the accused from unnecessary harassment and also conserved the valuable time of the Sessions Court, which might otherwise have been occupied by a case lacking sufficient substance. In practice, however, the committal stage, whether intended by the Legislature or not, came to serve an additional function. It provided the accused with an opportunity to test the credibility of witnesses by highlighting inconsistencies among the testimony offered in the committing Magistrate’s court, the statements the witnesses had earlier given to the police under section 161 of the Code, and the evidence that those witnesses later presented in the Sessions Court. Although many accused persons used this extra chance to examine the veracity of the prosecution’s witnesses, the Court observed that this often resulted in a duplication of trials, which in turn produced long delays in the final disposal of criminal matters.

The Court further noted that the benefit of the committal proceeding was not confined solely to the defence. By examining witnesses before the committing Magistrate, the prosecution could secure their testimony in a form that, even if later tampered with—a frequent occurrence in criminal cases—could still be admitted as substantive evidence under section 288 of the Code. Recognising that protracted committal procedures contributed to undue delay in the disposal of sessions cases, the Legislature, acting with foresight, amended the Code by inserting section 207A through Act XXVI of 1955. This new provision simplified the procedure for commitment proceedings that were instituted on the basis of a police report, while retaining the earlier, more elaborate process for cases that were not initiated on a police report. The distinction rested on a reasonable factual basis: when a case arose from a police report, a thorough inquiry would already have been conducted and the investigating officer would have forwarded a report to the Magistrate under section 173 of the Code. The amended section 173 imposed a duty on the police officer in charge to provide, free of cost and before trial, to the accused copies of the report sent to the Magistrate, the First Information Report filed under section 154, and any other documents or extracts that the prosecution intended to rely upon, including statements recorded under section 164, those recorded under sub‑section (3) of section 161, and a list of the prosecution’s proposed witnesses. Armed with this material, the Magistrate in a police‑report proceeding could ordinarily understand the prosecution’s case and the nature of the evidence that would be presented, while the accused would likewise have the chance to know in advance the case he had to meet and the evidence that would be adduced against him. In contrast, where the proceeding was instituted otherwise than on a police report, such material was unavailable, and consequently the older, more detailed procedure continued to apply.

In proceedings that are not started on a police report, the newer procedural safeguards that require the provision of certain documents to the accused are not available, and consequently the older procedure continues to apply to such cases. Against this backdrop, the Court examined the provisions of section 207A of the Code. Section 207A, paragraph 1, directs that when a magistrate receives the report forwarded under section 173 in any proceeding instituted on a police report, the magistrate must set a date for holding an inquiry that is no later than fourteen days from the date of receipt, unless the magistrate, for reasons that must be recorded, fixes a later date. Paragraph 2 provides that if, at any time before that date, the officer conducting the prosecution applies to the magistrate for a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for recorded reasons, he considers it unnecessary. Paragraph 3 obliges the magistrate, at the commencement of the inquiry and when the accused appears or is brought before him, to be satisfied that the documents referred to in section 173 have been furnished to the accused; if the magistrate finds that any of those documents have not been furnished, he shall cause them to be furnished. Paragraph 4 then requires the magistrate to proceed to take the evidence of any persons produced by the prosecution as witnesses to the actual commission of the offence alleged, and, if the magistrate is of the opinion that it is necessary in the interests of justice, to also take the evidence of any other witnesses that the prosecution wishes to call. Under paragraph 5, the accused is entitled to cross‑examine the witnesses examined under paragraph 4, and the prosecutor may re‑examine those witnesses. Paragraph 6 states that after the evidence mentioned in paragraph 4 has been taken, and after the magistrate has considered all the documents referred to in section 173 and, if necessary, examined the accused so that he may explain any circumstances appearing in the evidence against him, and after giving both the prosecution and the accused an opportunity to be heard, the magistrate shall, if he believes that the evidence and documents disclose no grounds for committing the accused to trial, record his reasons and discharge him, unless it appears to him that the person should be tried before himself or another magistrate, in which case he shall proceed accordingly. Finally, paragraph 7 provides that when, after the evidence is taken, the documents are considered, any necessary examination is made, and both parties have been heard, the magistrate, if of the opinion that the accused should be committed for trial, shall frame a charge declaring the offence with which the accused is charged.

In this case, the Court observed that the magistrate must record the charge in his hand, specifying the offence for which the accused is charged. The Court then examined the interpretation of subsection (4) of section 207A, which was the principal provision under dispute, and noted that various High Courts in India have offered divergent opinions on its meaning. Although a detailed analysis of each decision was unnecessary, the Court summarized the principal conflicting viewpoints as follows. First, certain authorities hold that subsection (4) obliges the prosecution to produce all eyewitnesses identified in the police report, and that the magistrate’s discretionary power to examine witnesses under the second part of the subsection is limited solely to witnesses who are not eyewitnesses; this position is supported by the decisions in M. Pavalappa v. State of Mysore (1), State v. Andi Betankar (2), Ghisa v. State (3) and Chandu Satyanarayana v. The State (4). Second, another view contends that the magistrate’s authority to examine eyewitnesses under the first part of subsection (4) is restricted to those actually produced in court by the prosecuting officer, and that if the prosecution fails to produce any such eyewitnesses, the magistrate cannot invoke the second part of the subsection to examine eyewitnesses, because that part pertains only to witnesses other than eyewitnesses. Third, a further line of authority maintains that when the prosecution does not produce any eyewitnesses, the court may not, at its discretion, examine any witness under the second part, but it may, if satisfied, either discharge the accused or commit him to the sessions court based on the documentary evidence referred to in section 178 of the Code; this approach is illustrated by State v. Lakshmi Narain (5) and State of U.P. v. Satyavir (6). Fourth, the Court explained that the first part of subsection (4) confers on the magistrate a power limited to examining the eyewitnesses who have been produced, whereas the second part empowers the magistrate to examine any other witness, whether eyewitness or not; consequently, if the prosecution fails to fulfill its duty to produce witnesses, especially important eyewitnesses, it would be contrary to judicial discretion for the magistrate to commit the accused to the sessions court on the basis of documents mentioned in section 173 of the Code without first examining the crucial witnesses. This principle is affirmed in State v. Yasin (1), In re Pedda Amma Muttigadu (2), A. Ishaque v. The State (3) and Manik Chand v. The State (4). The Court noted that it had reviewed the cited High Court judgments and found them helpful for resolving the issue, but emphasized that the matter ultimately depends on the proper interpretation of the statutory provision, and therefore a detailed discussion of those decisions was unnecessary. Consequently, the Court turned to the language of section 207A, particularly subsection (4), to determine its intended scope, recognizing that this subsection represents the most critical portion of the provision.

In this case, the Court explained that the provision dealing with the taking of evidence is divided into two distinct parts. The first part concerns the examination of witnesses that the prosecution produces, while the second part deals with the examination of any other witnesses the magistrate may consider necessary. The Court reiterated a basic rule of statutory interpretation, namely that when the language of a statute is clear and unambiguous, it is enough simply to give the words their ordinary meaning in order to discern the legislature’s intention. The opening clause of the sub‑section states: “The Magistrate shall then 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 offence alleged.” The word “shall” creates an absolute duty for the magistrate to take evidence, but the nature of that evidence is expressly limited by the following words. The phrase “as may be produced by the prosecution as witnesses to the actual commission of the offence alleged” qualifies the term “such persons”, thereby confining the magistrate’s duty to the witnesses that the prosecution actually produces. counsel for the appellants argued that the legislature could not have intended to allow the prosecution to withhold eyewitnesses at the committal stage, and therefore suggested that the word “produced” should be read as “cited”. The Court rejected this construction, observing that substituting “cited” for “produced” would be impermissible when the plain meaning of the word used by the legislature is clear and when accepting that meaning does not render the provision redundant. The insertion of the words “if any” between “such persons” and the qualifying clause stresses that the prosecution might fail to produce any such witnesses, and in that circumstance the magistrate’s obligation to examine them cannot arise. The second part of the sub‑section is equally clear and reads: “and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.” Although the term “may” indicates that the magistrate has the power to take additional evidence, that power can be exercised only when the magistrate is of the opinion that it is required in the interests of justice. Consequently, the duty to take extra evidence arises only if the magistrate holds that requisite view. Since this discretion is a judicial one, the Court emphasized that it must be exercised reasonably; a perverse exercise of that discretion could be subject to review and set aside by a higher court.

If the phrase “other witnesses” is to be understood, the question is whether it refers to witnesses who are not eye‑witnesses, or to witnesses whether or not they are eye‑witnesses, but who are not the persons already produced before the Magistrate by the prosecution. The prosecution can call witnesses of several different kinds. First, there are witnesses who actually saw the offence being committed. Second, there are witnesses who can explain the motive that may have led to the commission of the offence. Third, there are witnesses who can describe the investigation and the facts that emerged from that investigation. Fourth, there are witnesses who can describe the circumstances and facts that make the commission of the offence more probable; this category is technically called substantive evidence. Sub‑section (4) imposes on the Magistrate a duty to examine the first category – that is, the witnesses who actually observed the commission of the offence and who have been produced by the prosecution. The adjective “actual” before “commission” stresses that the required witnesses must have personally seen the offence being carried out. The Court has previously held that, under the first part of the provision, the Magistrate should examine only those witnesses that the prosecution has produced before him. However, a case may arise where no eye‑witnesses exist, or where the prosecution, despite having eye‑witnesses, has not produced all of them before the Magistrate.

The second part of sub‑section (4) therefore gives the Magistrate a discretionary power to call any one or more witnesses of any of the above categories, including eye‑witnesses who were not produced by the prosecution as contemplated in the first part. Some submissions assert that sub‑sections (6) and (7) make the taking of evidence a condition precedent to the Magistrate’s power to pass an order of discharge or committal, and that therefore sub‑section (4) must be read as imposing an obligatory duty to examine some witnesses. The Court cannot accept that view. The expression in sub‑section (6) – “When the evidence referred to in subsection (4) has been taken” – uses the adverb “when” to indicate a point in time, not a condition precedent. It merely states that an order of discharge may be issued under sub‑section (6) after the evidence mentioned in sub‑section (4) has been taken. Similarly, the language in sub‑section (7) refers to the time at which the Magistrate may make an order of committal. If no evidence has been taken, the first clause does not apply, and the Magistrate may proceed to issue an order of committal based on other material mentioned in that sub‑section. Conversely, if those two sub‑sections were read as imposing a condition precedent for discharge or committal, they would conflict with the discretionary language of sub‑section (4).

In this matter, the Court observed that the two sub‑sections governing either discharge or commitment would come into direct conflict with the provisions of subsection (4). The Court explained that when one sub‑section plainly gives the Magistrate discretion to either take or refuse to take evidence, the other sub‑sections effectively remove that discretion. The Court held that it is not permissible to create a conflict by construction when an alternative construction can harmonise and reconcile all three sub‑sections. The Court further noted that if the construction proposed by counsel for the appellants were adopted, it would create an anomaly because, even though the documents referred to in section 173 clearly show the accused’s innocence, the Magistrate would still be forced to go through the pretense of examining one or more witnesses merely to satisfy the wording of the sub‑section.

The Court then turned to the reliance placed upon section 251A of the Code, which concerns warrant cases. Under that provision the Magistrate is authorised, after considering all the documents mentioned in section 173 and after conducting any examination of the accused that the Magistrate deems necessary, and after giving both the prosecution and the accused an opportunity to be heard, to discharge the accused if the Magistrate considers the charge to be groundless. Conversely, if the Magistrate believes there is sufficient ground that the accused has committed the alleged offence, he must frame a charge in writing against the accused. By contrasting this provision with section 207A, the Court noted that the contention that rejecting the construction advanced by counsel would erase the obvious difference between the two procedures prescribed by the Legislature was not acceptable. The Court clarified that the distinction lies in the fact that, in a case governed by section 207A, evidence must be taken under certain conditions, whereas under section 251A no evidence need be taken at all. This distinction, the Court held, is settled by the Legislature and it is not the role of the Court to add further conditions or limitations.

The Court supported its view by referring to its earlier decision in Macherla Hanumantha Rao v. The State of Andhra Pradesh. In that case the question was whether sections 207 and 207A, introduced by the Amending Act XXVI of 1955, violated article 14 of the Constitution. The contention was that section 207A, when compared with other provisions of Chapter XVIII of the Code, placed accused persons in a less advantageous position in proceedings that began with a police report than the procedure prescribed for other cases in the subsequent provisions of the chapter. The Court ruled that a reasonable classification existed to justify the difference in procedures. Justice Sinha, speaking for the Court, examined the argument based on discrimination and considered the scope of the new section, thereby affirming the legitimacy of the separate procedural regimes.

In discussing the new provision, the judge explained at page 403 that the magistrate was required to record the testimony of witnesses who actually appeared in court as eye‑witnesses to the incident. The magistrate also possessed, in the interest of justice, the authority to record any additional evidence that the prosecution deemed necessary, although he was under no obligation to record any evidence at all. After completing a review of all documents mentioned in section 1973, after personally examining the accused, and after hearing both parties, the magistrate could, if he found no sufficient ground for committing the accused to trial, discharge the accused and set out his reasons in writing. This discharge could occur unless the magistrate chose either to try the accused himself or to refer the case to another magistrate for trial. Conversely, if the magistrate concluded that the accused should be committed for trial, he was required to frame a charge that specifically disclosed the offence with which the accused was charged, as cited in the 1958 Supreme Court Reporter report. The judge then turned to examine the scope of section 208 of the Code and, recognizing a clear procedural difference, concluded that the legislature had drawn a distinct classification between the two types of proceedings at the commitment stage. This classification was based on a relevant factor: whether a prior inquiry had been conducted by a responsible public servant charged with discovering crime and ensuring speedy justice. Accordingly, the observations made at page 403 could not be treated as mere obiter dicta, contrary to the submission of counsel, because interpreting section 207A was essential to determine whether a reasonable classification existed. Even if those remarks were deemed obiter, they nonetheless reflected the considered opinion of five senior judges of this Court and were consistent with the view expressed here. From this analysis the Court articulated four propositions. First, in a proceeding that began with a police report, the magistrate was bound to take evidence only from eye‑witnesses actually produced by the prosecution in court. Second, if the magistrate believed that, in the interest of justice, evidence—whether from eye‑witnesses or others—should be taken, he had a duty to do so. Third, when the magistrate was not of that opinion and the prosecution had not examined any eye‑witnesses, the magistrate possessed jurisdiction to either discharge the accused or commit him to the sessions court based solely on the documents referred to in section 173 of the Code. Fourth, the magistrate’s discretion under subsection (4) was a judicial discretion, and therefore, in appropriate cases, an order of discharge or committal could be set aside by a superior court.

In this part of the judgment the Court offers several observations. The Court notes that it is uncommon for the prosecution to fail to call important eye‑witnesses. When the prosecution deliberately refrains from examining such witnesses, a serious risk arises that the accused may tamper with those witnesses, and consequently the magistrate who is committing the accused would be unable to record any oral testimony that could later serve as substantive evidence under section 288 of the Code. The Court further observes that even if the prosecution accepts this risk, the magistrate is required to exercise a sound judicial discretion as prescribed by the second part of sub‑section (4) of section 207A in deciding whether the witnesses ought to be examined. Should the magistrate misuse or pervert that discretion, the decision is subject to correction by a higher court. The Court also recognizes that there are situations in which the magistrate may form a definite opinion solely on the basis of the documents referred to in section 173, without relying on any oral evidence. In such circumstances the magistrate is within his authority to either discharge the accused or to commit the accused to the Sessions Court, as the facts may require. The Court further adds that it is unnecessary to opine on whether an alleged illegal commitment of an accused, made without taking any evidence, would be nevertheless validated by section 537 of the Code or any other provision. Having considered all the matters, the Court concludes that the appeals do not succeed and therefore dismisses them.