Ramnarayan Mor And Another vs State Of Maharashtra

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 16 December 1963

Coram: J.C. Shah, Bhuvneshwar P. Sinha, M. Hidayatullah, N. Rajagopala Ayyangar, K. Subba Rao

In the matter of Ramnarayan Mor and another versus the State of Maharashtra, the Supreme Court of India delivered its judgment on 16 December 1963. The opinion was authored by Justice J.C. Shah and was pronounced by a bench comprising Justice J.C. Shah, Justice Bhuvneshwar P. Sinha, Justice M. Hidayatullah, and Justice N. Rajagopala Ayyangar. The petitioners were Ramnarayan Mor and another individual, and the respondent was the State of Maharashtra. The decision was reported in the 1964 volume of the All India Reporter at page 949 and also appears in the Supreme Court Reports, volume 5, page 1034. The case is cited in the 1972 Supreme Court reference report number 496 (2). The statutory provisions under consideration were sections 173(4) and 207‑A(6) of the Code of Criminal Procedure, Act V of 1898, with particular reference to the meaning of “evidence” as it includes documents under section 173(4). The headnote records that, after receiving a police report, the First Class Magistrate of Akola took cognizance of offences alleged under sections 406, 408, 409, 120B and 477A of the Indian Penal Code against the accused persons. The investigating officer supplied copies of the documents required by section 173(4) to the accused. At the commencement of the committal inquiry under Chapter XVIII of the Code, the public prosecutor informed the court that the case evidence was primarily documentary and that the prosecution did not wish to examine any witnesses during the committal stage. Following the hearing of arguments from both the State and the accused, the prosecutor applied that the accused be examined by the magistrate under section 207‑A(6). The magistrate granted the application, rejected objections raised by some of the accused, and ordered the accused to remain present for examination under sections 207‑A(6) and (7). The appellants challenged this order by filing a revision before the High Court, which was dismissed. The appellants contended that, in a commitment proceeding, the accused could be required to explain only those circumstances that arise from oral evidence recorded under section 207‑A(4), and not from documents furnished under section 173(4). The Court held, by a majority comprising Justices B.P. Sinha, K. Subba Rao and J.C. Shah, that the legislature used the term “evidence” three times in clause (6) of section 207‑A. In the first clause, the statute expressly defines “the evidence” as that referred to in sub‑section (4), and the phrase “that such evidence and documents disclose no grounds for committing” confirms that only the evidence mentioned in sub‑section (4) is intended. However, in the context of the accused’s explanation of circumstances appearing against him, the legislature employed the expression “in the evidence against him” without a specific reference to sub‑section (4), nor does any implication arise from the surrounding context that would limit its scope. This interpretation therefore includes both oral statements and documentary material when the magistrate examines the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

The Court noted that the wording of clause (6) of section 207A was adopted in a context that indicated a narrow scope of meaning. It held that the legislature did not intend that the phrase “examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him” should confine the opportunity for explanation solely to matters derived from oral evidence. The Court explained that a restrictive construction of the word “evidence” would, in many cases, cause serious prejudice to the accused because the circumstances that typically appear against an accused predominantly arise from statements recorded under section 161(3) and section 164, as well as from other documentary material referred to in section 173(4). If the accused were denied a chance to comment on those circumstances, the judicial character of the proceeding would be seriously impaired. Although an accused might be ready to answer the documents on which the prosecution relies, a literal reading of clause (6) that barred the magistrate from questioning the accused about those documents would often operate oppressively. The Court pointed out that the scheme of section 251A, which was enacted together with section 207A by Act 26 of 1955, indicated that during the examination of the accused for the purpose of explaining circumstances appearing in the evidence, the documents mentioned in section 173(4) could not be excluded. The Court further observed that section 207A(6) contemplated examination solely for the purpose of explaining any circumstances appearing against the accused and that an accused’s decision not to take the opportunity, while reserving the right to defend at trial, did not constitute a refusal to answer a question. Accordingly, no presumption under illustration (h) to section 114 of the Evidence Act could arise from such a decision. The Court distinguished the purpose of clause (6) of section 207A from the purpose of section 342 of the Code of Criminal Procedure, noting that under section 342 the court may pose any general question to the accused to explain circumstances appearing against him. Finally, the Court explained that, although in ordinary criminal trials a court may act on documents that are duly proved or admissible without formal proof, the amended Code had created a special procedure for commitment proceedings under section 207A. The record in such proceedings consisted of the oral evidence recorded under sub‑section (4) of section 173, and it would be difficult to treat only those duly proved documents as “evidence” within the meaning of clause (6) while excluding the rest. Section 3 of the Evidence Act supported this view, as it defined “evidence” to include all statements permitted or required by the court from witnesses and all documents produced for inspection before the court, without limiting the term to documents that had been proved.

In discussing the meaning of “evidence” for the purpose of sub‑section (6) of section 207A of the Code of Criminal Procedure, the Court observed that the definition of evidence under section 3 of the Indian Evidence Act includes any statement that the court permits or requires to be made before it by witnesses, as well as any documents produced for the inspection of the Court, and that this definition does not limit “evidence” to documents that have been duly proved by evidence. In the dissenting opinion of Justices Ayyangar and Hidayatullah, the Court held that the term “evidence” in sub‑section (6) of section 207A is restricted solely to the oral evidence of prosecution witnesses. The dissent noted that the word “evidence” appears three times in that sub‑section. The first occurrence, situated in the opening words, refers specifically to the evidence recorded under sub‑section (4), together with the cross‑examination and re‑examination allowed by sub‑section (5). The next phrase in the sub‑section states that “the Magistrate has considered all the documents referred to in section 173,” thereby treating documents as a separate category of material distinct from “evidence.” The dissent argued that this creates a clear dichotomy between “evidence” and “documents,” a distinction that the Magistrate must observe before ordering committal. Consequently, the second occurrence of “evidence” in sub‑section (6) must be read as referring only to the oral testimony of witnesses examined under sub‑section (4). The final occurrence of the word appears in the clause that reads, “such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused persons to trial.” Here, “documents” again denotes the documents mentioned earlier in section 173, distinct from “evidence,” which the dissent affirmed continues to mean the oral evidence recorded under sub‑section (4). Sub‑sections (4), (6) and (7) therefore draw a sharp distinction between “evidence” and “the documents” mentioned in section 173 of the Code of Criminal Procedure. The dissent further observed that the absence of the word “such” and the use of the definite article “the” in the relevant clause should not be given significance; the article “the” clearly refers back to the “evidence” already identified in the opening words of the sub‑section, namely the oral evidence recorded under sub‑section (4). The Court cited Ramdas Kikabhai v. State of Bombay, A.I.R. 1960 Bom. 124 (not relied upon), and Re Macmanaways, [1951] A.C. 161 (referred to). The Court then held that a Magistrate lacks jurisdiction to examine an accused under section 342(1) of the Code when (a) no oral prosecution evidence has been recorded, or (b) when there is no evidence adduced, in the sense employed by the Indian Evidence Act, that would enable the court to prove any issue‑relevant fact. The same principle, the Court said, applies to the circumstances in which an accused may be examined by the Magistrate under section 207A(6).

The Court observed that where no evidence has been recorded under sub‑section (4) of Section 207‑A, the Magistrate does not possess jurisdiction to examine an accused person under Section 207‑A(6). Consequently, in the case presently before it, the Magistrate was without authority to order the accused to appear before him for the purpose of examination. The judgments in Bachchan Lai v. State, A.I.R. 1957 All. 184 and Bahawala v. Crown, I.L.R. 6 Lah. 183 were cited in support of this proposition.

The Court further held that the accused may be examined under Section 207‑A(6) only with reference to matters that appear against him in evidence which is legally admissible before the court. The accused, however, should not be compelled to incriminate himself by answering questions concerning matters that can be proved against him only at trial, matters that later would be examined under Section 342(1) of the Code. If Section 207‑A(6) were interpreted otherwise, it would create an opportunity for a fishing expedition and would enable the prosecution to modify its case in order to undermine the accused’s explanation at the appropriate stage. The Court noted that the accused cannot be questioned under sub‑section (6) on the basis of documents mentioned in Section 173(4) of the Code unless those documents have been legally proved. An examination carried out by a magistrate without such proof would effectively turn the magistrate into an investigating agency, thereby risking prejudice to the accused; this risk, the Court said, is likely the reason why the sub‑section has been drafted in its present form. The Court distinguished this position from that under Section 251A(2), where the examination is mandated by statute and therefore belongs to a separate class.

The Court explained that the magistrate lacks jurisdiction to pose questions under sub‑section (6) with reference to documents cited in Section 173(4) because those documents do not constitute evidence within the meaning of sub‑section (4) of Section 207‑A. The term “evidence” as defined in Section 3 of the Evidence Act is given its ordinary dictionary meaning and is not intended to govern the interpretation of “evidence” in sub‑section (6). Throughout criminal procedure, “evidence” refers to judicial evidence, that is, oral testimony subject to cross‑examination and documents that have been proved, are relevant, and are admissible. The phrase “documents produced for inspection of the court” in Section 3 of the Evidence Act merely indicates that the documents are offered for the court’s inspection; the court may not base its findings on the contents of such documents.

The Court further held that, under illustration (h) to Section 114 of the Evidence Act, the court is entitled to draw an adverse inference when an accused refuses to answer a question posed under Section 207‑A(6). Finally, the Court applied the rule of interpretation articulated by Lord Radcliffe, stating that the meaning of the words must be ascertained by seeking the natural meaning of the words in their context, including any other phrases in the Act that may illuminate the sense in which the legislators employed the disputed terms.

In this case, the Court recorded that a police report had been filed in the Court of the Magistrate First Class at Akola against the appellants and fifty‑five other individuals, alleging offences punishable under sections 406, 408, 409, 120‑B and 477‑A of the Indian Penal Code. The investigating officer had supplied the accused persons with copies of the documents that are required to be furnished under section 173(4) of the Code of Criminal Procedure. At the opening of the committal enquiry, the public prosecutor informed the Court that the evidence in the matter was predominantly documentary and therefore the prosecution did not wish to call any witnesses at the stage of the committal proceeding. After the State and the accused had been given an opportunity to argue, the prosecutor made an application that the accused should be examined by the Magistrate pursuant to section 207‑A(6) of the Code of Criminal Procedure. The Magistrate granted this application, rejected the objections raised by certain accused persons, and ordered that the accused remain present in Court for examination under sections 207‑A sub‑sections (6) and (7). The appellants challenged this order by moving a revision before the High Court of Bombay, but the High Court dismissed the revision. With the grant of special leave, the appellants then appealed to the Supreme Court.

The appellants contended that, during an enquiry for commitment to a Court of Session, an accused person may be required to explain only those circumstances that emerge from oral evidence recorded under section 207‑A(4), and not from circumstances that arise from the documents furnished under section 173(4) of the Code. The Court observed that a brief review of the statutory provisions governing commitment proceedings would assist in appreciating the appellants’ submission. It noted that, except where the Code expressly provides otherwise, a Court of Session does not possess the inherent authority to take cognizance of a case directly on the basis of a complaint, a police report, or on its own motion. Accordingly, a case must be committed by a Magistrate who is competent to do so. Commitment under the Code therefore requires a preliminary enquiry by the Magistrate, who must be satisfied that a prima facie case exists against the accused. This preliminary enquiry serves a dual purpose: it informs the accused of the case and the nature of the evidence that the prosecution intends to rely upon, and it filters out cases that lack a reasonable ground for conviction. Under the original Code of Criminal Procedure, for offences exclusively triable by a Court of Session, or where the Magistrate considered that the case ought to be tried by such a Court, witnesses who were to be examined before the Session Court were first examined before the Magistrate, and documentary evidence was duly proved and admitted. If the Magistrate was convinced that sufficient grounds existed for commitment, a charge was framed and the accused was committed for trial. The Court further noted that this procedure had become cumbersome, causing considerable delay without providing a compensating benefit to the accused, and that legislation had been enacted with a view to securing a more expeditious disposal of cases tried by the Court of Session.

In this case the Court explained that the enquiry before a Magistrate is intended to serve two purposes. First, it is meant to give the accused full information about the case, including the nature of the evidence that the prosecution intends to rely on. Second, it is meant to screen out cases in which there is no reasonable ground for a conviction. Under the original provisions of the Code of Criminal Procedure, in every case that was exclusively triable by the Court of Session, or in every case that the Magistrate considered ought to be tried by the Court of Session, the witnesses who were to be examined before the Court of Session were first examined before the Magistrate. The prosecution was required to prove and tender in evidence the documents on which it sought to rely. If, after this examination, the Magistrate was satisfied that there was sufficient ground to commit the accused for trial, a charge was framed and the accused was committed to the Court of Session. The Court observed that this procedure often proved to be cumbersome and caused considerable delay in the trial of criminal cases, while providing no real compensating advantage to the accused at trial. To secure a more expeditious disposal of cases tried by the Court of Session, the Legislature, by Act 26 of 1955, introduced section 207‑A. This provision created a simpler procedure for enquiries that were commenced on the report of a police officer, while retaining the original commitment procedure for cases commenced in any other manner. At the same time, section 173(4) was inserted, imposing a statutory duty on the police officer to furnish, before the commencement of an enquiry or trial, copies of the police report, the first information report, and all other documents or relevant extracts on which the prosecution proposed to rely, including statements and confessions recorded under section 164 and statements recorded under section 161(3) of the Code. The Court then described the new scheme for enquiries that are started on a police report. Upon receiving such a report, the Magistrate is required to fix an early date for holding the enquiry. Before that date, the prosecutor may apply for a process to compel the attendance of witnesses or the production of documents or other things. At the commencement of the enquiry, the Magistrate must first ensure that the accused has been supplied with the documents referred to in section 173(4). The Magistrate then records the evidence of persons produced by the prosecution as witnesses to the actual commission of the offence. If the Magistrate believes that, in the interests of justice, it is necessary to take the evidence of other witnesses, he may do so, and the accused is entitled to cross‑examine all such witnesses, whether they were examined by the prosecutor or by the Court. All the documents on which the prosecutor seeks to rely in support of the prosecution’s case—namely the statements of all witnesses recorded in the investigation, the police report, the first information report, any confession and any statements recorded under section 164—must be made available to the accused.

The Court observed that the prosecution must supply copies of all relevant documents to the accused, and that any witnesses who actually participated in the commission of the offence and are produced by the prosecutor, as well as any witnesses summoned by the Magistrate of his own initiative, must be examined while the accused is present. The purpose of these statutory provisions, the Court said, is plainly to ensure that the accused receives complete information regarding the whole prosecution case. Accordingly, the documents whose copies are given to the accused together with the oral testimony of witnesses taken before the Magistrate constitute part of the official record of the enquiry. This record also includes the examination of the accused, the list of witnesses furnished by the accused, and the charge that has been framed; the entire collection must be forwarded to the Court of Session. The Court further noted that, if the order of commitment is found to be erroneous on a question of law, the High Court may set aside that order by exercising its jurisdiction under section 215 of the Code after reviewing the same record. Likewise, in appropriate circumstances the order of discharge may be revised by either the Court of Session or the High Court exercising revisional jurisdiction on the same record. The Court then turned to sections 6 and 7 of section 207‑A, which form the core of the present argument. Section 6 provides: “When the evidence referred to in sub‑section (4) has been taken and the Magistrate has considered all the documents referred to in section 173 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 the 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 appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.” Section 7 states: “When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.” The Court explained that the scheme of these two sub‑sections is straightforward: a Magistrate conducting an enquiry may discharge an accused if, after considering the evidence under sub‑section 4 and the documents under section 173, he concludes that there is no ground to commit the accused to trial. Conversely, if after the same consideration the Magistrate is of the opinion that the accused should be committed, he must frame a formal charge and commit the accused for trial. In performing either function under sub‑section 6 or sub‑section 7, the Court held that the Magistrate indisputably performs a judicial function and is obligated to take the evidence of any persons, if any, as required by law.

The Court explained that, even when the prosecution does not call any witnesses to prove the actual commission of the alleged offence, the Magistrate retains the authority to summon witnesses if, in his view, justice requires their testimony. The statutory provision imposes an overriding duty upon the Magistrate to examine any witnesses he deems necessary, irrespective of whether the prosecutor has produced witnesses to the factual commission of the offence. This power is not limited to witnesses who directly observed the alleged act; it extends to any persons whose evidence the Magistrate considers essential for the interests of justice. After hearing such witnesses and after reviewing the documents specified in section 173(4), the Magistrate may also question the accused, should he think it necessary, in order to allow the accused to clarify any circumstances that appear in the evidence against him. Following this, the Magistrate must afford both the prosecution and the accused an opportunity to be heard. He then forms an opinion on whether the evidence and the documents disclose any ground for committing the accused to trial. The purpose of the procedure laid down in subsections 4, 6 and 7 is to determine, after the accused has been informed of the nature and details of the prosecution case together with the oral and documentary evidence on which the case is based, whether a prima facie case exists that should be sent to the Court of Session for trial. In carrying out his duties, the Legislature obliges the Magistrate to record all evidence he receives or deems necessary, to consider the relevant documents, and to grant both parties a hearing. The Magistrate is also empowered to question the accused, if required, to enable him to explain any aspects of the evidence that pertain to him. Although the statute uses the phrase “if necessary,” indicating discretion, that discretion must be exercised according to sound judicial principles and with reference to the enquiry’s purpose, namely to ascertain judicially whether a prima facie case exists against the accused for commitment. Within this framework, it would be unreasonable to assume that the Legislature intended subsection 6 of section 207‑A to restrict the examination of the accused only to matters revealed by oral evidence. While the term “evidence” appears three times in clause (6), a proper reading of the context shows that the argument that the term uniformly means only oral evidence recorded either from witnesses produced by the prosecutor or from witnesses examined by the Magistrate on his own initiative cannot be sustained.

In interpreting clause six of section 207‑A, the Court observed that the reference to “the evidence” in the opening part of the provision, which is expressly defined as “the evidence referred to in sub‑section (4),” together with the phrase “that such evidence and documents disclose no grounds for committing,” must be read in its contextual setting. Accordingly, the expression “the evidence” in that clause is limited to the material specified in sub‑section (4). However, the Court held that the phrase “the evidence” occurring later in the provision – namely the words “examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him” – is not confined solely to the oral evidence recorded under sub‑section (4). The Court explained that the Magistrate is required to consider, in addition to oral testimony, the documentary material that the prosecution intends to rely upon at trial. Such documentary material includes statements and confessions recorded under section 164 and section 161(3). These documents become part of the Magistrate’s record and may be relied upon by both the prosecution and the accused when they are afforded the opportunity to be heard. The Magistrate must evaluate these documents together with the oral evidence when forming an opinion on whether the accused should be committed to the Court of Session for trial or discharged. The Court found it unlikely that the legislature intended to restrict the accused’s opportunity to explain circumstances to those arising only from oral evidence, while nevertheless allowing the Magistrate to consider documentary evidence under section 173(4) when deciding on commitment or discharge. The Court warned that a narrow construction of “evidence” would prejudice the accused in many cases, because the majority of material that appears against the accused ordinarily derives from statements made under section 161(3), section 164, and other documentary evidence. If the accused were denied the chance to explain such documentary circumstances, the judicial nature of the proceeding would be undermined, as the Magistrate would not obtain a complete picture of the case. The Court emphasized that a full record, including both oral testimony and relevant documents, is essential to determine whether a prima facie case exists that justifies commitment to the Court of Session. Consequently, the opportunity to be heard must extend to the entire record, not merely to the oral evidence recorded under sub‑section (4).

By the language employed in clause six, the magistrate was barred from examining the accused with respect to those documents, a restriction that the Court observed could often operate oppressively against the accused. The Court noted a deliberate alteration of wording in the use of the expression “the evidence” within clause six. In the opening clause, the reference to evidence was expressly to the evidence taken under sub‑section 4, and, as previously observed, the phrase “such evidence” was understood to point to that same sub‑section. However, when the statute spoke of the examination of the accused for the purpose of enabling him to explain any circumstances appearing against him, it employed the expression “in the evidence against him”. This expression was not expressly tied to sub‑section 4, nor did any contextual implication suggest that its scope was limited. Counsel for the appellants alternatively argued that even if the term “evidence” were to include documents, only those documents that were duly proved at the enquiry for commitment should fall within its ambit, on the ground that only evidence duly proved according to law may be used to support a judgment in any civil or criminal trial. The Court referred to the Evidence Act, which governs all criminal trials, and observed that section 3 defines “evidence” to mean and include all statements that the Court permits or requires to be made by witnesses concerning matters of fact under enquiry, as well as all documents produced for the Court’s inspection. The definition contains no limitation restricting “evidence” to documents that have been duly proved. While a criminal trial may ordinarily proceed on the basis of documents that are duly proved or on documents admissible without formal proof under the rules of evidence, the amended Code, in section 207‑A, had prescribed a special procedure for proceedings that commit an accused. Consequently, the record in such proceedings consisted of the oral evidence recorded under sub‑section 4 of section 173, and it would be difficult to construe only those documents that were duly proved, or admissible without proof, as “evidence” within the meaning of clause six while excluding the remainder.

The Court found no merit in the contention that the legislature could not have intended that the accused be examined in respect of documents that had not been duly proved before the Court, because to adopt that view might, in some cases, create a “trap for the accused”. The object of the examination, the Court reiterated, was to afford the accused an opportunity to explain any circumstances appearing against him. The accused could make use of that opportunity, but he was under no obligation to do so, and if he chose not to avail himself of it, the statute did not expose him to any prejudicial consequence. Nevertheless, counsel urged that should the accused decline to explain the circumstances in response to the Court’s question, an adverse inference might be drawn against him.

The Court examined the contention that an adverse inference might be drawn against an accused who does not take advantage of the opportunity to explain facts that appear against him, and that the reliance for such a presumption was placed upon illustration h) to section 114 of the Evidence Act. Section 114 provides that a court may draw a presumption that, if a person refuses to answer a question that he is not legally compelled to answer, the answer he might have given would have been unfavorable to him. The Court held that this provision could not be applied to a situation where, in a committal enquiry, the accused simply chooses not to use the chance to explain circumstances suggested by oral or documentary evidence. The Court explained that declining to use that opportunity, while preserving the right to mount a defence at trial, does not constitute a refusal to answer a question. The opportunity created by subsection (6) of section 207‑A for examining the accused is intended solely for the accused’s benefit, allowing him, if he wishes, to explain any adverse circumstances drawn from the oral evidence and also from the documents mentioned in section 173(4). The Court observed that the scheme of subsection (6) of section 207‑A differs from the scheme found in section 342 of the Code of Criminal Procedure. Under section 342, the court is empowered to put questions to the accused to enable him to explain any adverse circumstances, and the court must do so generally after the prosecution witnesses have been examined and before the accused is called upon to present his defence. By contrast, subsection (6) of section 207‑A does not envisage such general questioning; it limits the examination to the purpose of explaining any circumstances that appear against the accused. Consequently, the Court held that the mere failure of the accused to avail himself of the opportunity to explain matters that are brought to his attention does not amount to a refusal to answer a question that would justify drawing a presumption that a possible answer would have been unfavorable. The Court further noted that the scheme of section 251‑A, which was enacted at the same time as section 207‑A by Act 26 of 1955, indicates that, in the examination of the accused for the purpose of enabling him to explain adverse circumstances, the documents referred to in section 173(4) cannot be excluded. Section 251‑A sets out a special procedure for warrant cases that are instituted on police reports. In cases that do not arise from a police report, the traditional procedure of examining witnesses and then framing a charge on which the accused will be tried remains in force. However, where the proceedings begin on a police report, the magistrate, under subsection (2) of section 251‑A, must first consider the documents mentioned in section 173(4), then, if necessary, examine the accused and afford both the accused and the prosecutor an opportunity to be heard. Section 251‑A contains no provision for the examination of witnesses before the magistrate makes an order under subsection (2) to discharge the accused or before he frames a charge under subsection (3). Consequently, in warrant cases, the examination of the accused, if deemed required, must necessarily be confined to the circumstances that arise from the documentary evidence covered by section 173(4).

In accordance with sub‑section 2 of section 251‑A, the magistrate could, after reviewing the documents mentioned in section 173(4) and after conducting any examination of the accused that the magistrate deemed necessary, provide both the prosecutor and the accused an opportunity to be heard. If, after this process, the magistrate considered the charge to be groundless, the magistrate could discharge the accused; alternatively, if the magistrate found sufficient basis to presume that the accused had committed an offence, the magistrate could frame a charge under sub‑section 3. Consequently, in a warrant case there would be no evidence from witnesses, and any examination of the accused, if the magistrate found it necessary, would be limited to the circumstances that emerged from the documentary evidence referred to in section 173(4). The legislature, therefore, envisioned that inquiries in warrant cases would involve examination of the accused solely on the basis of the documentary evidence identified in section 173(4). It could not be assumed that examining the accused about circumstances arising from those documents, even when the documents were not proved but copies had been supplied to the accused, was so inconsistent with criminal jurisprudence as to be disallowed. If an accused person could be given a chance before a charge was framed under section 251‑A(2) to explain the circumstances that appeared in the documents referred to in section 173(4), it was difficult to find any reason why a magistrate conducting a commitment inquiry might be barred from doing so under section 207‑A(6). It would be anomalous, the Court observed, if two different rules on examination of the accused applied depending on whether the offence was triable by a Court of Session or by a magistrate. Accordingly, the Court held that the magistrate possessed the authority, when he thought it necessary, to examine the accused for the purpose of enabling the accused to explain any circumstances that appeared in the evidence—whether that evidence consisted of oral testimony, if any, that had been recorded, or the documents referred to in section 173(4). The Court did not decide whether, in the case before it, the magistrate was justified in requiring the accused to remain present for examination after the arguments of the prosecution and the accused had been concluded. Normally such examination would occur before the parties’ arguments were heard, but the Code contained no prohibition against an examination undertaken during the hearing if the magistrate, in the interests of justice, believed it necessary to allow the accused to explain any adverse circumstances. On this basis, the Court concluded that the appeal failed and dismissed it. Ayyangar, J., expressed regret at being unable to agree with the judgment that had been pronounced. Section 207‑A(6) of

The Criminal Procedure Code contains a provision that states: when the material referred to in sub‑section four has been recorded, the Magistrate has examined all the documents mentioned in section one‑seven‑three, and, if it is necessary, has examined the accused so that the accused can explain any circumstances that appear 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 the documents do not disclose any grounds for committing the accused for trial, record his reasons and release the accused, unless he thinks that the person should be tried before himself or another Magistrate, in which case he shall proceed accordingly. The phrase “to explain any circumstances appearing in the evidence against him” is the sole issue that this appeal asks the Court to consider. The appeal reaches this Court by way of special leave under Article one‑hundred‑thirty‑six of the Constitution. Before addressing that singular question, it is necessary to set out the factual background that gave rise to the proceedings. The appellants before this Court are two of the fifty‑seven persons who have been charged with offences punishable under sections one‑twenty‑B, four‑zero‑six, four‑zero‑eight, four‑zero‑nine and four‑seven‑seven‑A of the Indian Penal Code, read with section thirty‑four. The prosecution alleges that the misappropriation involved an amount exceeding fifty‑three lakh rupees and that a conspiracy to commit the various offences persisted for twelve years, spanning the period from 1948 to 1960. A charge‑sheet was filed on the fourth day of December, 1962, before a Special Magistrate named Shri Halbe, who was appointed specifically for the trial. It is undisputed that the Special Magistrate was treating the matter as one that could be committed to the Sessions Court for trial if the charges were found to be prima facie established, and because the proceedings were initiated on a police report, the Magistrate was conducting the inquiry under the provisions of section two‑zero‑seven‑A of the Criminal Procedure Code.

On the twenty‑eighth day of March, 1963, the Public Prosecutor submitted a memorandum to the Special Magistrate. The essential portion of that memorandum read: “The evidence in this case is primarily documentary. Consequently, the prosecution does not intend to produce any witnesses before this Court for the committal proceeding. The Court may be pleased to consider all the evidence contained in the documents, copies of which have been provided to the accused and also filed before this Court as required by section one‑seven‑three, sub‑section four of the Code. The Court may then be pleased to give the prosecution an opportunity to be heard to explain the whole case.” Following the filing of that memorandum, the documents prescribed by section one‑seven‑three of the Code were filed. Immediately after the filing, both parties presented arguments before the Court based on those documents. The prosecution began its arguments on the eighth day of July, 1963, and after the prosecution’s submissions were completed, the accused made their submissions, concluding the oral argument phase on the twenty‑sixth day of July, 1963. On that same day, a large number of the accused filed a memorandum urging that, because the prosecution had not produced any oral evidence under sub‑section four of section two‑zero‑seven‑A but had relied solely on documentary evidence, the Magistrate should not examine the accused. They argued on two grounds: first, that a proper construction of sub‑section six of section two‑zero‑seven‑A did not permit the Court to examine them, and second, that even if the Court possessed jurisdiction to do so, such examination would cause serious prejudice, particularly because any statement made by an accused during examination could be used against him as evidence.

In this matter the prosecution began presenting its arguments on the 8th of July 1963 and, after completing its presentation, the accused then made their submissions, with the entire exchange of arguments concluding on the 26th of July 1963. On that same day a substantial number of the accused filed a memorandum before the court. In the memorandum they urged that, because the prosecution had not produced any oral evidence under section 207‑A(4) of the Code and had relied solely on documentary material to establish a prima facie case, the Special Magistrate should not examine the accused. The accused based their request on two principal grounds. First, they argued that a proper construction of section 207‑A(6) of the Code did not permit the court to examine them at that stage. Second, they contended that even if the court possessed jurisdiction to examine them, such examination would cause serious prejudice, particularly since any statement made by an accused during the examination could subsequently be used against them as evidence.

The Special Public Prosecutor, in response, filed a memorandum on the 27th of July 1963 opposing the accused’s prayer. In that memorandum he submitted that the magistrate might be pleased to examine the accused by putting each of them “a few general questions” so that they could explain the circumstances appearing against them. The prosecutor supported this suggestion by relying on the interpretation of section 207‑A(6) given by the Bombay High Court in the case of Ramdas Kikabhai v. The State of Bombay (AIR 1960 Om 124). Consequently, a genuine conflict arose: the accused maintained that they did not want any opportunity to explain anything at that stage and that such examination would be detrimental to their interests, whereas the State, through the public prosecutor, asserted that it was in the accused’s own interest to be examined immediately so that they could explain a step they were resisting. The learned Magistrate accepted the argument advanced by the prosecution counsel and consequently directed the accused to appear before him on the 9th of August 1963. The present appellants then filed a revision before the learned Sessions Judge and obtained an order staying the magistrate’s direction. However, that revision was dismissed on the 19th of August 1963. The Sessions Judge held that, although judgments of other High Courts had endorsed a different construction of section 207‑A(6) – the construction put forward by the accused – he was bound by the Bombay High Court decision relied upon by the State and therefore concluded that the magistrate possessed jurisdiction to examine the accused at that stage and that he would not interfere with the magistrate’s order. A further revision filed by the accused in the High Court was dismissed in limine, after which the accused applied for and obtained special leave from this Court to pursue the appeal.

In this appeal the Court was asked to consider whether a magistrate possessed the authority to examine an accused person at a stage when, under section 207‑A(4) of the Code of Criminal Procedure, no evidence had yet been recorded. The resolution of this issue primarily required a correct construction of subsection (6) of section 207‑A, a provision that the Court had earlier extracted for reference. To interpret subsection (6) accurately, the Court found it necessary to set out the other clauses of section 207‑A, because the meaning of the words in subsection (6) could be understood only in the context of the entire section. Accordingly, the Court reproduced the relevant portions of section 207‑A as follows: “section 207‑A(1). When, in any proceeding instituted on a police report, the magistrate receives the report forwarded under section 173, he shall for the purpose of holding an inquiry under this section fix a date which shall be a date not later than fourteen days from the date of the report, unless the magistrate, for reasons to be recorded, fixes any later date. (2) If at any time before such date, the officer conducting the prosecution applies to the magistrate to issue 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 to be recorded he deems it unnecessary to do so. (3) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand declaring with what offence the accused is charged.” The Court noted that section 207‑A had been newly introduced into the Code by section 29 of the Criminal Procedure Code Amendment Act, Act 26 of 1955. The purpose of that amendment was to reduce the delays that were then common in committal proceedings. The amendment therefore prescribed different procedures for a magistrate’s inquiry depending on the nature of the case. Specifically, the amendment distinguished between cases (a) that were triable exclusively by the Court of Sessions or the High Court, and (b) cases in which, in the magistrate’s opinion, the trial should be conducted by such a higher court. The applicable procedure further depended on whether the proceedings were commenced by the institution of a police report or by a private complaint. When the proceeding was initiated by a police report, the procedure laid down in section 207‑A applied; when the proceeding was instituted otherwise than by a police report, the provisions of section 208 and the sections that followed were attracted. The Court also observed that, in proceedings not instituted by a police report and governed by the code as it stood before the amendment, an accused could be committed for trial under section 210. In those earlier proceedings, “evidence” meant judicial evidence that had to be called before the magistrate. After such evidence was taken—meaning oral evidence on oath together with documentary evidence proved in accordance with the Indian Evidence Act—section 209(1) provided for the examination of the accused.”

The Court explained that the provision allowing the accused to be examined was intended solely to enable him to explain any circumstances that appeared in the evidence against him, and that this purpose differed from the scheme set out in section 207‑A. Under sub‑section (4) of that section, the magistrate was required, after being satisfied that the documents referred to in section 173 had been furnished to the accused, to take the evidence of any persons produced by the prosecution as witnesses to the offences alleged and of any other witnesses that the magistrate considered necessary to examine. The Court then turned to the contents of section 173. The documents mentioned in that section began with a report prepared by the officer‑in‑charge of the police station, which set out the names of the parties, the nature of the information, the names of persons who appeared to be acquainted with the circumstances of the case, and indicated whether the accused had been taken into custody or released, and if released, the manner of release. In addition to this report, the other documents referred to were those listed in sub‑section (4): first, the First Information Report or relevant extracts thereof on which the prosecution intended to rely, including any statements and confessions recorded under section 164; and second, the statements recorded under sub‑section (3) of section 161 of all persons whom the prosecution proposed to examine as its witnesses. The Court noted that certain reservations existed that might allow some of these documents to be withheld, but it declined to discuss those reservations because they were not relevant to the matter before it. The Court then proceeded to examine the terms of section 207‑A(6) and identified the controversy that revolved around the phrase ‘to examine the accused … to explain any circumstances appearing in the evidence against him’.

The Court observed that it was undisputed, even by the learned counsel for the respondent‑State, that the jurisdiction conferred on the court to examine the accused by that sub‑section was limited to enabling him to explain the circumstances that appeared in the evidence against him. Consequently, the Court reasoned, if no evidence existed, there could be no circumstances appearing in that evidence for the accused to explain, and therefore the court would lack jurisdiction to examine the accused at that stage. The issue thus reduced to the meaning of the word ‘evidence’ in the expression ‘circumstances appearing in the evidence’. During the arguments, the term ‘evidence’ was said to convey three distinct ideas. First, it could refer to the evidence of witnesses recorded under section 207‑A(4) of the Code. Second, it could include that portion of the documentary evidence mentioned in section 173(4), which the magistrate was directed to consider before ordering commitment; such public documents required no proof under the Indian Evidence Act and would constitute judicial evidence before a court under that enactment. Third, it could be understood to mean the entirety of the material referred to in the relevant provisions. The Court identified these three conceptions as the points of contention presented by the parties.

The Court considered the contention that the documents described in section 173(4) could serve as material on which the Magistrate might rely for a committal order under subsections (6) and (7) of section 207-A, irrespective of whether those documents were admissible as evidence or had been proved in accordance with the requirements of the Evidence Act. The appellant’s counsel argued that the term “evidence” should be limited to the oral testimony of persons produced by the prosecution under subsection (4) as witnesses, or to witnesses examined by the Magistrate under the authority granted by the concluding words of that subsection. The Court found that this submission possessed considerable merit. The word “evidence” appears three times in subsection (4). In its opening clause, the term is used in reference specifically to the oral evidence recorded under subsection (4), together with the powers of cross‑examination and re‑examination provided in subsection (5). Following that, the provision states that “the Magistrate has considered all the documents referred to in section 173.” Consequently, the documents are treated as a separate category of material, distinct from “evidence,” and the subsection creates a clear dichotomy between these two kinds of material that the Magistrate must evaluate before ordering committal. If this dichotomy underlies the entire subsection, it follows that the second occurrence of the word “evidence” in subsection (6), which is the point of construction in the appeal, must be read as referring only to the oral testimony of witnesses examined under subsection (4). The Court noted that it would return to this conclusion after reviewing the remainder of the subsection to determine how the dichotomy is further reinforced.

In the final occurrence of the term “evidence” within the subsection, the provision reads that “the Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial,” the Magistrate may act accordingly. Here, “documents” unmistakably denotes the documents mentioned earlier in section 173, and these are again distinguished from “evidence.” This reinforces the interpretation that “evidence” refers exclusively to the oral evidence recorded under subsection (4), a view that was not contested by Mr. Setalvad. Moving to subsection (7), the Court observed that the distinction between “evidence” as oral testimony and the documents under section 173 is maintained with equal rigor, as the language states “upon such evidence being taken, and such documents being considered.” Given the phrasing employed in subsection (4) and the repeated separation of “evidence” and “documents” in subsections (6) and (7), the Court concluded that a reversal of this dichotomy would require an exceptionally strong justification, which was not present in the arguments before it.

The Court observed that there were compelling reasons to hold that when the words “the evidence” were used in the passage now under consideration, they were employed in a sense that was separate from the ongoing distinction between “evidence” and “documents” that characterises the relevant provisions. It noted that even the judgment of the Bombay High Court, which had been relied upon by the Magistrate and the learned Sessions Judge, was based on accepting that same construction of subsection (6). Referring to the various subsections of section 207‑A, the learned Chief Justice recorded the following observation: “The learned Assistant Government Pleader has urged that the word ‘evidence’ which follows with the words ‘any circumstances’ appearing in sub‑s. (6) is used in a wider sense so as also to include the documents referred to in s. 173. This argument cannot be accepted, in view of the latter part of the sub‑section, which requires the Magistrate to form an opinion on such evidence and documents.” The Court pointed out that the documents were again mentioned separately from evidence. Consequently, it concluded that “evidence” did not include the documents, which are mentioned separately in both subsections (6) and (7). Accordingly, “evidence” in these provisions meant only the evidence, if any, recorded under subsection (4). The provision therefore contemplated an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, that is, in the evidence, if any, recorded under subsection (4). The learned Chief Justice then identified an apparent lacuna in the subsection but held that the later part of the subsection, which directed the Magistrate “to give the accused an opportunity of being heard,” remedied that gap and vested the Magistrate with the power to examine the accursed for the purpose of explaining why he should not be committed for trial before the Sessions. With due respect to the learned judges, the Court could not accept the reasoning on which that conclusion was based. Firstly, the Court could not accept the view that a lacuna existed in the subsection arising from the construction of the word “evidence” as the learned judges had suggested. The scheme of section 207‑A(6) and (7) provides for two sets of material on the basis of which the Magistrate must decide whether a prima facie case exists against an accused person justifying his commitment to trial: the oral evidence recorded under subsection (4) and the documents referred to in section 173 that are placed before him. If, on a proper construction of subsection (6), one type of material—namely oral evidence—is placed before the Court, the provision requires that the accused be questioned to explain the circumstances appearing against him on that material, and therefore the provision contains no lacuna. Under that construction, the accused would not be questioned where no such evidence has been recorded in the case.

In this matter the Court observed that the phrase “given the accused an opportunity to be heard” does not require that the accused be examined in the sense of being questioned and having his answers entered verbatim in the record. The Court explained that such wording is common throughout the Code and other statutes and is intended simply to give the accused a chance to present reasons or arguments to the magistrate. Consequently, the expression does not create a duty to record a question‑and‑answer session that could later be produced as evidence under section 287 of the Code. In the factual setting before the magistrate, the expression therefore pertains only to hearing the accused’s oral arguments or submissions concerning the case or the documents when there is no oral evidence of the type described in subsection (4). The Court further noted that when the accused is examined, a statement made by the magistrate may indeed become admissible evidence against the accused under section 287 of the Criminal Procedure Code, but the subsection under discussion merely requires an opportunity to be heard and does not impose an examination requirement.

The Court also stressed that the prosecution, like the accused, must be given “an opportunity to be heard,” and it would be manifestly incorrect to interpret that phrase as mandating an examination by means of questions and recorded answers for the prosecution as well. This view is reinforced by the language of subsection (7), which the Court has extracted and considered. Turning to the arguments advanced on appeal, the Court observed that the only support for the lower courts’ construction lay in the reasoning of a Bombay High Court judgment, and that reliance on that reasoning was insufficient to uphold the order under appeal. The counsel for the appellant, however, did not rely on the Bombay High Court decision, nor did he attempt to buttress the reasoning on which that decision was based. In fact, he admitted that the primary justification offered by the learned judges—namely the phrase “the accused being given an opportunity to be heard”—could not be sustained.

The Court invited the counsel to identify any other authority where the same phrase was given the meaning ascribed by the Bombay High Court, but the counsel was unable to do so. He nevertheless raised three points. First, he argued that the expression “the evidence” in subsection (6) should be understood in a broad sense, not limited to the oral evidence recorded under subsection (4), and that it should include the entire material on which the magistrate must decide whether a prima facie case exists against the accused. The Court found this argument unconvincing. Having already examined the wording of the subsection, the Court noted that, when read together with the language of the other subsections, especially subsections (4) and (7), a clear distinction emerges between “evidence” and “the documents” referred to in section 173. The Court therefore declined to accept the broader interpretation proposed by the appellant.

In examining the language of sub‑section (6), the Court observed a clear and sharp distinction between the term “evidence” and the phrase “the documents” that is referred to in section 173. That distinction appears consistently throughout sub‑section (6) and is also evident in sub‑section (7). Consequently, the Court did not give any importance to the fact that the word “such” was omitted and that the definite article “the” was used in the relevant clause. In the context, the article “the” unmistakably points to the “evidence” that was already mentioned at the beginning of the sub‑section, namely the evidence recorded under sub‑section (4). The same evidence is referred to again at the third occurrence of the word in the concluding part of the sub‑section. To determine the proper meaning, the Court applied the rule of interpretation articulated by Lord Radcliffe, who stated that the meaning of words must not be sought through speculation. Rather, the primary duty of a court is to discover the natural meaning of the words as they appear in their context, and that context includes any other phrases in the Act that may illuminate how the legislature intended the disputed terms to be understood.

The counsel for the respondent then advanced a further submission by comparing sub‑section (6) of section 207‑A with sub‑section (2) of section 251‑A. The counsel emphasized that both sections 207‑A and 251‑A were introduced by the same enactment, Act XXVI of 1955, and that each dealt with the procedure to be followed in cases instituted on a police report. Sub‑section (2) of section 251‑A authorizes a magistrate, if necessary, to examine the accused concerning matters that appear in the documents referenced in section 173(4). The exact wording of section 251‑A(2) reads: “If, upon consideration of all the documents referred to in section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.” This provision is preceded by sub‑section (1), which mirrors sub‑section (3) of section 207‑A, and states: “When in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.” The argument based on sub‑section (2) was presented in two parts: first, that there is no inconsistency or injustice in permitting a magistrate to examine an accused person about matters appearing in the documents under section 173, because Parliament expressly provided for such an examination; and second, that, in view of the terms of section 251‑A(2), which was enacted at the same time as section 207‑A, the word “evidence” in sub‑section (6) should be understood as referring to the evidence recorded under sub‑section (4) that has been tested by cross‑examination, if any.

In the present case the Court observed that the term “evidence” occurring in sub‑section (6) of section 207‑A could be interpreted to mean “on the examination of the accused with reference to the material on which the Magistrate proceeds to act”, because in both instances the purpose of the examination is to protect the interests of the accused and to give him an opportunity to avoid commitment or the framing of a charge. The Court stated that this comparison does not constitute a sound rule of construction and that it could not agree that a comparison of the provisions of section 251‑A(2) would assist the respondent. Rather, the Court noted that the difference in the language of the two provisions supports a construction whereby the word “evidence” in the relevant portion of section 207‑A(6) refers to the evidence recorded under sub‑section (4) and, if any, that has already been tested by cross‑examination. The Court further pointed out that when the framers of Act 26 of 1955 spoke of the documents referred to in section 173, they described them in both section 207‑A and section 251‑A as “documents” and not as “evidence”. Moreover, the Court observed that section 251‑A(2) empowers the court to examine the accused without using the expression “evidence” at all; the provision does not make the examination compulsory, marks the words “if any”, and does not even refer to the documents. In addition, the Court highlighted that when Bill 20‑B of 1954, which later became Act 26 of 1955, was examined by the Select Committee, the wording in section 207‑A(6) was identical to that now found in section 251‑A(2), that is, it did not contain the word “evidence” and gave no indication of the purpose for which the court was empowered to examine the accused. It was only during the passage of the Bill in Parliament that sub‑section (6) was amended to its present form. The Court regarded this amendment as evidence that the insertion of the word “evidence” was intentional and not a mistake, thereby demonstrating that the terms of section 251‑A(2) actually work against the respondent’s submission. The Court then referred to another provision in the Code that uses similar language, namely section 342(1), which begins with the words “For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him”. The Court explained that under this provision a Magistrate would have no jurisdiction to examine an accused either when no oral evidence for the prosecution has been recorded or when the matters concerned are not supported by any evidence.”

In this passage the Court observed that an accused may be examined only where there exists evidence in the sense employed by the Indian Evidence Act, namely evidence that enables the court to determine any fact in issue or any relevant fact to be proved. Referring to section 342 of the Criminal Procedure Code, the Court quoted the earlier observation of Raghubar Dayal J. in Bachchan Lal v. The State (1), wherein he explained that the purpose of examination under that provision is to give the accused an opportunity to explain circumstances that are adverse to him and not to draw out material about which there is no evidence. He further stressed that the court is not an investigating agency tasked with discovering facts to be presented at trial. The Court also cited the decision in Bahawala v. The Crown (2), which held that it was illegal to examine an accused before the prosecution evidence was recorded because, at that stage, no evidence existed against him and therefore there were no circumstances in the evidence for him to explain. The Court affirmed that these precedents correctly delineate the situation in which a magistrate may examine an accused under a provision worded similarly to section 207‑A(6). The final submission of counsel for the respondent relied on the definition of “evidence” in section 3 of the Indian Evidence Act, which defines evidence as (1) oral evidence and (2) all documents produced for the inspection of the court, termed documentary evidence. Counsel argued that, because documents mentioned in section 207‑A(3) are treated as material on which the court may find a prima facie case, there was no impropriety in referring to those documents as “evidence.” The Court was not persuaded by this argument. While acknowledging that the definition in section 3 serves only the purpose of the Evidence Act and represents a dictionary meaning, the Court identified a more serious objection: the definition should not be used to import probative value to documentary material that may be inadmissible, irrelevant, prohibited, or otherwise not proven, and therefore should not be examined by the court for any judicial decision absent a contrary statutory provision. Moreover, if the term “evidence” throughout the Criminal Procedure Code is understood to mean judicial evidence—that is, oral evidence subject to cross‑examination and documentary evidence that has been proved, found relevant and admissible—then using the term in a broader sense would be inappropriate.

The Court observed that the word in the provision under consideration is intended to denote documents produced merely “for the inspection of the Court.” When the expression is confined to that limited purpose, it follows that the Court cannot base any of its findings on the substance of such a document. That would indeed have been the result if it were not for the special provisions contained in sections 207‑A and 251‑A. Consequently, the Court expressed no hesitation in rejecting the submission that relied on the narrower interpretation. The argument was then reiterated in a slightly altered form. It suggested that, although the Magistrate might be barred from examining the accused with reference to portions of the documents that could not be deemed “proved,” the Magistrate could still rely on those documents listed in section 173 that, by their nature, required no proof—either because they were public documents or because a special law dispensed with the need for proof. The aim of that submission was to persuade that, apart from oral evidence under sub‑section (4), there existed other categories of evidence, strictly so called, which the legislature had not intended to exclude from the term “evidence” in sub‑section (6). The Court held that this line of reasoning could not succeed in view of the overall scheme of the section. The entire structure of section 207‑A draws a clear and sharp distinction between the terms “evidence” and “documents,” the latter expressly referring to the documents mentioned in section 173. This dichotomy is reinforced twice, namely in sub‑sections (6) and (7). Accordingly, whenever “documents” are mentioned in sub‑sections (6) and (7), the reference is to the whole body of documents covered by section 173, and no construction of section 207‑A(6) permits a separation between documents that are self‑proving and those that require proof by oral evidence. Finally, it was submitted that the provision was designed to protect the interests of the accused, and therefore should be interpreted to enable the accused to explain the circumstances set against him, whether those circumstances arise from oral testimony or from the documents, since the Magistrate was empowered to consider both sources when deciding whether to commit the accused. The Court noted that where the statutory language is clear, the Court has a duty to give effect to it, and that the word “evidence” in the relevant context, and even more generally, cannot be given the meaning advanced by the respondent. Consequently, that argument lacks any supporting basis. However, the Court added that if an ambiguity did exist and the word could reasonably be understood in both a narrower and a broader sense, the Court would, without doubt, adopt the construction that best serves the purpose of the provision and promotes justice.

In this matter the Court observed that it would be proper to adopt an interpretation of the statutory language that advances the objective of the provision and serves the interests of justice. To apply this rule of construction, the Court explained that it must first be convinced that, when the words are given the broader meaning, they will invariably operate to the benefit of the accused. The Court recalled its earlier comments on the consequence of subjecting an accused to an examination when there is no ‘evidence’ against him, a point made with reference to section 342(1) of the Code, and noted that those observations were relevant to the present issue. The circumstances before the Court were that the accused in the present case refused to be examined and objected to answering the questions posed to them on the ground that such questioning would compel them to respond before they had full knowledge of the prosecution’s case, before they understood how the documents contemplated under section 173 would be employed, and before they could determine the precise interpretation they would give to the contents of those documents on which they intended to rely. The prosecution argued that it was in the accused’s own interest that they be examined, whereas the accused contended that an examination at this stage was designed to trap them into making statements that could later be used to undermine their defence at trial. The Court stressed that the appeal did not require an assessment of the factual matrix of the prosecution, a task that rightly belonged to the Magistrate, who would decide whether to examine the accused, what matters to address, and how to fulfil the purpose of examination as prescribed in the relevant subsection. Instead, the principal question before the Court was the extent of the Magistrate’s jurisdiction to examine an accused with reference to matters disclosed in the documents mentioned in section 173 of the Code. The Court pointed out that the documents listed in section 173(4) could include material that could never constitute evidence against the accused at trial; nevertheless, if the State’s position were accepted, the accused could be called upon to explain circumstances set out in such documents, and any explanation or statement given in response would, under section 287 of the Code, become evidence against the accused. In the facts of this case, the Court found that the interpretation of the subsection favoured by the State was open to prejudice the accused and, even assuming an ambiguity in the meaning of the word ‘evidence’, such a construction could not be endorsed. Furthermore, the Court was not persuaded that denying the Magistrate the power to examine the accused would deprive the accused of an opportunity to avoid committal by providing a reasonable explanation for the circumstances reflected in the documents. Finally, the Court noted that the Magistrate is mandated to consider the documents in the context of the submissions made by the accused regarding their contents, and that this consideration must be balanced against the statutory intent to limit the accused’s exposure to self‑incriminating answers on matters that may only become provable at trial.

In this case, the Court observed that it would not be unreasonable to conclude that the legislature intended that the accused be examined only with reference to evidence that was legally admissible before the court. The accused was not to be compelled to incriminate himself by answering questions about matters that would only be proved at trial and that he would be examined about under section 342(1) of the Code. He was also not to be examined about documents that might never be produced later. An interpretation to the contrary would permit a fishing expedition and would allow the prosecution to tailor its case so as to undermine the accused’s explanation at the appropriate stage. It was suggested that an accused who found a question inconvenient could simply refuse to answer, since there was no legal duty to respond, and that such refusal could not attract liability. However, that argument ignored the principle that an adverse inference could be drawn from a refusal to answer. Section 114 of the Indian Evidence Act provides that the court may presume that if a person refused to answer questions that the law did not compel him to answer. The court may then infer that the answer, if given, would have been unfavorable to him. Accordingly, the Court held that the court was justified in drawing such an inference. Whether or not the court actually drew the inference, it was clear that if the accused declined to answer when examined by the magistrate at the committal stage, any explanation offered later could be characterised as an after‑thought. Consequently, it would be incorrect to assume that the magistrate’s power to question the accused at this stage could not cause serious prejudice. The expression “if any” in the sub‑clause gave the magistrate discretion to examine or not, and the legislature appeared to presume that the discretion would be exercised properly, or could be challenged later if misused. Where evidence was recorded under subsection (4), these considerations supported the propriety and justice of the proceeding. The question for consideration was whether, when the magistrate, by virtue of the specific statutory provisions, sought to find a prima facie case by reference to unproved, untested and possibly inadmissible documents. It further asked whether the prosecution’s intention to rely on such documents meant that the same considerations necessarily applied. If the magistrate examined the accused without proper evidence, he would be acting as an investigating agency, creating a real possibility of prejudice to the accused.

The Court observed that the wording of the sub‑section was likely intended to prevent the undesirable result previously discussed. It noted that the legal position differs when the examination is mandated by section 251‑A(2), because in that situation the examination arises directly from the statute and therefore belongs to a separate category; consequently, the Court did not need to examine whether an examination under that provision could prejudice the accused. The Court then held that, in the absence of any evidence recorded pursuant to sub‑section (4) of section 207‑A, the Magistrate possessed no authority to conduct an examination of the accused under section 207‑A(6). As a result, the Magistrate in the case before the Court lacked jurisdiction to order the accused to appear before him for examination. Accordingly, the Court allowed the appeal, set aside the Magistrate’s order directing the accused to appear for being examined, and entered a formal order stating that, in view of the majority judgment, the appeal failed and was dismissed.