State of West Bengal vs Tulsidas Mundhra

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 88 of 1962

Decision Date: 11 September 1962

Coram: Gajendragadkar, J.

In the matter titled State of West Bengal versus Tulsidas Mundhra, the Supreme Court delivered its judgment on 11 September 1962. The bench comprised a single judge and recorded the petitioner as the State of West Bengal and the respondent as Tulsidas Mundhra. The case concerned provisions of the Criminal Procedure Code of 1898, specifically sections 207A and 540, and examined whether an accused person could be permitted to lead evidence in his defence in a proceeding initiated under section 207A. The headnote summarised that, although an accused is not entitled to lead his own evidence in such a proceeding, the broad powers granted to a criminal court by section 540 to summon and examine any person as a witness remained fully applicable. The Court observed that section 540 was sufficiently wide to encompass proceedings under section 207A and that its operation was not excluded by the scheme of section 207A. The decision referred to the earlier authority of Arunachalam Swami v. State of Bombay, A.I.R. 1956 Bom. 695, to support this view. It further noted that sub‑section (6) of section 207A did not compel a magistrate to examine an accused unless the magistrate deemed it necessary. In the present case, the magistrate, while hearing a request from the accused to examine defence witnesses, rejected the request not because he lacked authority under section 540, but because he considered the application vexatious and intended to delay the proceedings. The Calcutta High Court, on revision, had erred in setting aside the magistrate’s order and had directed that the accused be examined under section 342 of the Code. The Supreme Court held that the High Court’s order must be rescinded and that the magistrate’s discretion under section 540 was proper.

The appeal arose under criminal appellate jurisdiction as Criminal Appeal No. 88 of 1962, filed by special leave against the Calcutta High Court judgment and order dated 30 November 1961 in Criminal Revision No. 1117 of 1961. Counsel for the appellant and respondent were described in neutral terms, and the judgment was delivered by Justice Gajendragadkar. The principal issue presented by the State of West Bengal was whether the provisions of section 540 of the Criminal Procedure Code applied to a case being tried by a magistrate under section 207A. The factual backdrop began on 7 July 1960, when Inspector Bhuromal of the Special Police Establishment in New Delhi submitted a charge‑sheet under section 173 of the Code to the Chief Presidency Magistrate of Calcutta. The charge‑sheet named Hari Das Mundhra as accused No. 1 and Tulsidas Mundhra as accused No. 2, and the charges were framed under section 12 OB/409 and sections 409 and 477‑A of the Indian Penal Code. This factual narrative set the stage for the Court’s examination of the statutory interplay between sections 207A and 540.

According to the record, the charge‑sheet that had been filed under section 173 of the Code of Criminal Procedure listed offences punishable under section 12OB/409 as well as sections 409 and 477‑A of the Indian Penal Code. On 5 August 1960 both accused, identified as accused No. 1 and accused No. 2, appeared before the Chief Presidency Magistrate of Calcutta and were released on bail. After their appearance the matter was transferred to the Presidency Magistrate, M. Roy, of the Fifth Court for further conduct. On 10 October 1960 the prosecution supplied copies of the voluminous documentary material to the accused. Because of the large size of the record the Magistrate adjourned the hearing to 7 December 1960. On 1 March 1961 the parties were again heard. After considering the seriousness of the alleged offences and the substantial amounts of money involved, the Magistrate concluded that the most appropriate procedure was to apply the commitment provisions contained in section 207A of the Code of Criminal Procedure. Accordingly, the steps mandated by that section were set in motion. During the pendency of the case, accused No. 1 was convicted in a separate matter and was serving a term of imprisonment in the District Jail at Kanpur. Consequently, he could not be produced before the Magistrate until 7 July 1961. This circumstance caused several further adjournments and prevented any material progress in the trial until that date.

On 6 July 1961 the second accused, who is the respondent, filed a petition before the Magistrate. In the petition he contended that the prosecution’s documentary evidence against him comprised three cheques and that the prosecution alleged the handwriting on those cheques was his own. The respondent disputed that allegation and prayed that he should be permitted to call defence witnesses who could testify that the questioned handwriting did not belong to him. The following day, 7 July 1961, the Magistrate heard the matter. He first examined the respondent’s request to summon defence witnesses and, after evaluating the merits, rejected the application. He then proceeded to issue an order of commitment under section 207A. In refusing the request, the Magistrate observed that the petition had been made at a very late stage and appeared intended to delay the proceedings. He expressed the view that a petition deliberately deferred for the sole purpose of gaining time should not be entertained and also characterized the application as misconceived. Counsel for the respondent argued that the magistrate had the authority to examine the proposed witnesses and relied on a decision of the Bombay High Court in Arunachalam Swami v. State of Bombay. The magistrate distinguished that precedent on the basis of factual differences. While delivering his order, the respondent made an additional application seeking transfer of the case to a higher court. The magistrate, believing that this request was likewise made to prolong the litigation, nevertheless adjourned the hearing, noting that under section 526(8) of the Code he was obligated to allow the application to be considered.

The magistrate observed that the application was made solely to delay the proceedings in his court; consequently, under section 526(8) he was compelled to adjourn the matter. Accordingly, he postponed the hearing to 20 July 1961 so that he could issue the remaining portion of the final order, should the respondent fail to obtain a transfer order from the higher court. The respondent challenged this adjournment by filing a criminal revision before the Calcutta High Court. The High Court held that section 540 of the Code was applicable to cases tried under section 207A and directed the magistrate to reconsider afresh whether he should summon and examine the defence witnesses listed in the respondent’s application of 6 July 1961, in accordance with that provision. In addition, the High Court noted that the accused persons had not been examined under section 362 and therefore should be given an opportunity to explain the circumstances against them by being questioned under section 342. This observation was made without the High Court deciding the broader question of whether examination of the accused under section 342 is mandatory in a commitment enquiry. As a result, the order dated 7 July 1961 issued by the magistrate was set aside, and the matter was remitted to his court for disposal in accordance with law. The appellant has now approached this Court by special leave against that remand order. Counsel for the appellant contended that the High Court erred in holding that section 540 applied to proceedings under section 207A. Alternatively, he argued that the magistrate had already examined the issue of witness examination within the scope of his powers under section 540; therefore, even if the first contention failed, the magistrate was justified in refusing to revisit the matter, and the High Court was not entitled to refer the case back to him. He further submitted that there was no need to ask the magistrate to reconsider the question. He acknowledged that the new provisions of section 207A were introduced to expedite commitment proceedings and to shorten the duration of criminal cases that are exclusively triable by the Court of Session or High Court. He reminded the Court that section 206, inter alia, confers on the magistrates named therein the authority to commit any person for trial to the Court of Session or High Court for any offence triable by such courts. He also pointed out that section 207 provides that, in relation to a case which is exclusively triable by a Court of Session or High Court, or which, in the magistrate’s opinion, ought to be tried by such a court, the magistrate shall, in any proceeding instituted on a police report, follow the procedure specified in section 207A, and in any other proceeding, follow the procedure prescribed by the other provisions of the Chapter.

In this case the Court set out the operation of section 207A and explained that the provision applied to proceedings involving offences that are either exclusively triable by the Court of Session or the High Court or, in the opinion of the Magistrate, ought to be tried by such a Court. The section comprised sixteen subsections that together formed a self‑contained code which the Magistrate was required to follow when dealing with cases falling under it. Sub‑section (1) directed the Magistrate, in a proceeding instituted on a police report, to follow the procedure specified in section 207A, while in any other proceeding the Magistrate was to follow the procedure laid down in the remaining provisions of the Chapter. Sub‑section (2) authorised the Magistrate to issue a process for compelling the attendance of any witness or the production of any document or other thing. Under sub‑section (3) the Magistrate was required to satisfy himself that the documents referred to in section 173 had been furnished to the accused; if they had not been furnished, the Magistrate had to cause them to be so furnished. Sub‑section (4) dealt with the stage at which the Magistrate took evidence of persons produced by the prosecution as witnesses to the alleged commission of the offence and further provided that, if the Magistrate considered it necessary in the interests of justice, he could also take evidence of any other witnesses for the prosecution. By sub‑section (5) the accused was given the liberty to cross‑examine the witnesses who had been examined under sub‑section (4). Sub‑section (6) stipulated that if evidence had been recorded under sub‑section (4) and the Magistrate had considered all documents referred to in section 173, and if, after examining the accused as necessary to enable him to explain any circumstances appearing against him, he had given both the prosecution and the accused an opportunity to be heard, then the Magistrate was to form a conclusion. If, in his opinion, the evidence and documents disclosed no ground for committing the accused to trial, the Magistrate was to record his reasons and discharge the accused unless he thought the accused should be tried before himself or another Magistrate, in which case he was to proceed accordingly. Sub‑section (7) required that where, after considering the evidence and documents and hearing both parties, the Magistrate was of the opinion that the accused should be committed for trial, he must frame a charge in his own hand, stating the offence with which the accused was charged. Sub‑section (8) provided that as soon as the charge had been framed it was to be read and explained to the accused and a copy was to be given to him free of cost. Under sub‑section (9) the accused was required to furnish, immediately, either orally or in writing, a list of any persons whom he wished to summon to give evidence at his trial; a proviso to this subsection authorised the Magistrate, at his discretion, to permit the list to be given at a later time.

In the present appeal, the Court observed that the proviso allowing a delayed submission of the list of witnesses is not relevant, and the remaining clauses of the provision are also unrelated to the issue before the Court. Consequently, it is clear that before a Magistrate makes any decision to either discharge the accused, to direct that the trial be conducted by himself or another Magistrate, or to commit the accused to the Court of Session or to the High Court, the Magistrate must first consider the evidence that has been recorded under sub‑section (4) together with the documents referred to in section 173. The Magistrate may also examine the accused if he deems such examination necessary to enable the accused to explain circumstances that appear against him in the evidence. Of course, the Magistrate is required to hear both the prosecution and the accused before issuing any order. The scheme of section 207A therefore does not provide for the examination of a defence witness before an order is made under either sub‑section (6) or sub‑section (7). This omission may be explained by the Legislature’s view that, in criminal cases initiated on a police report, it is usually not necessary to extend the enquiry by permitting the accused to lead defence evidence, and consequently no provision for such evidence was incorporated. Even the examination of the accused himself is left to the discretion of the Magistrate under sub‑section (6), and sub‑section (7) likewise indicates that the examination of the accused is discretionary. As already noted, it is only after a charge has been framed, read and explained to the accused under sub‑section (8) that the accused may furnish a list of persons he wishes to examine under sub‑section (9). This sequence creates a marked contrast with the provisions of section 208, which govern cases that are not instituted on a police report. Section 208 requires that, when the accused is brought before the Magistrate, the Magistrate shall proceed to hear the complainant, if any, and shall take all evidence that may be produced in support of the prosecution or on behalf of the accused, or any evidence that the Magistrate may call for. Moreover, section 208(3) provides that if the accused applies 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 reasons that must be recorded, he considers it unnecessary. In other words, in proceedings covered by section 208, the accused is entitled to lead defence evidence and the Magistrate is bound to permit such evidence, unless he concludes, after recording his reasons, that the evidence need not be led.

In its conclusion the Court examined the provisions of section 207A and compared them with those of section 208, highlighting the differing evidentiary rights they create. The Court found that section 207A does not grant an accused any right to present evidence in defence, whereas section 208 expressly permits the accused to call such evidence. However, the Court noted that this distinction does not decide whether section 540 may also operate in proceedings that fall under section 207A. Section 540 authorises a criminal court to summon any material witness. It also permits the court to examine a person who is present though not summoned as a witness, and to recall or re‑examine any individual already examined. The provision further states that the court shall summon, examine, recall or re‑examine any such person whenever his evidence appears essential to a just decision of the case. Thus, section 540 confers very wide powers on criminal courts, powers that the court may choose to exercise after considering whether they are needed. If the court is satisfied that evidence from a person not yet examined, or additional evidence from someone already examined, is essential for a fair outcome, the court has a duty to obtain that evidence. The exercise of the power under section 540 is therefore conditioned on the requirement that such evidence be essential to the just decision of the case. Given this condition, the Court found it difficult to accept the argument that the scheme of section 207A automatically excludes the application of section 540 to proceedings governed by the former. While it is true that section 207A does not give the accused a right to lead defence evidence, this merely means he cannot apply for such a right. That limitation is distinct from the proposition that, in proceedings under section 207A, the magistrate lacks jurisdiction to examine a witness using the powers granted by section 540. The denial of a defence‑evidence right to the accused does not affect whether the magistrate may exercise his section 540 powers. Consequently, the Court does not accept that the special provisions of section 207A imply the inapplicability of section 540. Generally, when a statute contains both a special provision for a particular case and a general provision covering the same subject, the special provision may displace the general one only for that specific topic. In the present matter, however, section 207A merely excludes the accused’s right to lead defence evidence, whereas section 540 makes no reference to that right.

The Court explained that Section 540 concerned the authority of the court to examine witnesses as court witnesses in order to serve the interests of justice, and it did not confer any right on either the prosecution or the defence to lead evidence. The provision applied at any stage of any enquiry, trial or other proceeding instituted under the Code, and its language was sufficiently broad to encompass a proceeding that was initiated under Section 207A. Consequently, it would be unreasonable to argue that the scheme of Section 207A excluded the operation of Section 540 in such proceedings. The Court held that the court’s power under Section 540 could be exercised with equal force in cases governed by Section 207A as in other matters regulated by the remaining provisions of the Code. For this reason, the Court was satisfied that Mr Prem was not justified in contending that the Magistrate lacked jurisdiction to examine witnesses as court witnesses, even if the Magistrate had concluded that such examination was essential for a just decision in the case.

The Court then turned to the alternative argument raised by Mr Prem. The High Court appeared to think that, in rejecting the respondent’s application to examine defence witnesses, the Magistrate had relied on the view that his power was limited by the provisions of Section 207A. The High Court considered this to be the sole basis for overturning the Magistrate’s order and remitting the matter back to his court. The Court found this view erroneous, observing that the High Court had assumed the Magistrate had not addressed the question of the applicability of Section 540. In fact, as the Court noted, when the Magistrate’s attention was drawn to the Bombay High Court decision in Arunachalam Swami (1956) A.I.R. Bom. 695, he stated that the case was distinguishable on its facts and did not say that the decision was irrelevant because Section 540 did not apply. Had the Magistrate believed Section 540 to be inapplicable, he would have expressly rejected the Bombay decision as having no relevance. By indicating that the decision was distinguishable, the Magistrate implicitly accepted that Section 540 was applicable, but concluded that the particular precedent offered no assistance given the factual differences between the two cases. Accordingly, the Court held that the Magistrate’s order could not be successfully challenged on the ground that he had failed to consider Section 540.

Finally, the Court observed that the order of the learned Magistrate showed that, in his view, the extensive evidence produced by the prosecution left no substance in the respondent’s allegation that the witnesses he wished to examine would provide material or decisive evidence. The Magistrate recorded that, considering the voluminous prosecution evidence, the respondent’s application was without merit.

The magistrate observed that the documentary evidence produced by the prosecution was extensive and that it established a prima facie case against both accused individuals. In this regard, the magistrate also remarked upon the respondent’s conduct. Photostat copies of the disputed cheques had been supplied to each accused roughly nine months prior to 6 July 1961, and arguments concerning those documents had been presented to the magistrate about two months before that date. At no point was it suggested to the magistrate that the respondent intended to introduce evidence showing that the handwriting on the cheques was not his, a fact which, if proven, could have materially affected the prosecution’s case. Consequently, the magistrate concluded that the respondent’s application was vexatious and was made solely to delay the proceedings.

The magistrate’s reasons for rejecting the respondent’s application made it difficult to endorse the High Court’s view that the magistrate had considered section 540 of the Code to be inapplicable in the present matter. The High Court also noted that the accused had not been examined under section 342 of the Code and appeared to direct the magistrate to conduct such an examination without first determining whether it was necessary at that stage. Section 207A(6) provides that a magistrate may examine an accused if he deems it necessary. Moreover, even according to the High Court’s own judgment, the failure to examine the accused under section 342 did not constitute a material irregularity capable of justifying reversal of the magistrate’s order. Accordingly, the appeal was allowed, the High Court’s order was set aside, and the magistrate’s order dated 7 July 1961 was restored. The judgment expressed regret that the respondent’s litigation in the High Court and the appellant’s subsequent actions had prolonged the criminal case, and it urged the magistrate to render his final orders promptly so that the matter could proceed to trial before the Court of Session without further unnecessary delay.