Bipat GOPE v. State Of Bihar

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 153 of 1960.

Appeal by special leave from the judgment and order dated July 28, 1960, of the Patna High Court in Criminal Revision No. 1243 of 1959. -

Sarjoo Prasad, B.K. Banerjee, P.K. Chatterjee, and A.K. Nag, for the appellants.

S.P. Varma, for the respondent.

1962. February 1.—The Judgment of the Court was delivered by

HipayaTuLLan, J,—This is an appeal by special leave against an order of the High Court of Patna, by which an order passed by the Magistrate, First Class, discharging the appellants under

8. 207A(6) of the Code of Criminal Procedure, was set aside, and the Magistrate was directed to commit the appellants to the Court of Session to stand their trial under ss. 307/34 and 148 of the Indian Penal Code. The only question that. is argued is whether the High Court was justified in setting aside the order of the Magistrate, which, it is claimed was passed in the proper exercise of the jurisdiction conferred by s. 207A(6) of the Code.

The facts of the case, in prief, are as follows: Oa March 26, 1959, at about 10-15 p.m. one Rajbahadur Rai alias Chhote Rai, was alleged to have been assaulted by the appellants at a place where Chhote Rai was sitting, at the pan shop of ’ one Raghunath Prasad. The appellants are said to have arrived there in a private car and a4 tandem, and after assaulting Chhote Rai, to have gone away in these two vehicles. After investigation, the appellants were prosecuted under ss. 307/- 34 and 148 of the Indian Penal Code, with the result already mentioned.

Before the order of discharge was made, the Magistrate heard the evidence of nine witnesses

Bipat Gope Ve Sate of Bihar

Hidayatuileh J.

Bipat Gop State of Bihar Hidayatullah J, including Chhote Rai and Raghunath, who had given the first information report. The witnesses also included two other alleged eye-witnerses, Bhushan Singh (P.W. 2), aud sheonandan Yadev (P.W. 6). The Magistrate, after recording the evidence and bolding a spot inspection and hearing the parties, discharged the appellants, as he was of opinion (in his own words)—

‘in view of the aforesaid discrepant, unreliable and incredible and highly intcrested prosecution evidence, no Court can consider it worthwhile prima facie even for atrial. In a case of this nature, it is the legal obligation of a Magistrate to discharge the accused persons, as discussed above.”

The Magistrate reached this conclusion on a fairly long appraisal of the evidence in the case, discussing it from the angle of credibility of witnrsses, their antecedents, the probabilities of the c1se, the nature of the alleged weapon, the medical evidence and so on. In short, it will not be wrong tu say that he tried the case, instead of finding out whether thero was no ground for sending up the appellants to stand their trial before the Court of Session. The High Court, in the order under appeal, held that the Magistrate went beyond the powers conferred ypon him of enquiring into the case with a view to committing it to the court of Session.

Section 207A is-a new section, which has been introduced by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955). It lays down the procedure which the Magistrates must follow in an enquiry in procecdings started on a pulice report, preparatory to commitment of cases to the Court of Session. Sub-seetions (1), (2) and (3) deal with the fixing of dates. issuing of processes and ensuring that copies of the documenta referred to in 8.173 of the Code of Criminal

2S.0.R. SUPREME COURT REPORTS 951

Procedure have been furnished to the accused. Sub-section (4) then enjoins upon the Magistrate that he shall proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the alleged offence, and also enables him to take the evidence of any one or more of the other witnesses for the prosecution as he considers, in his opinion, necessary. The sub-section divides the witnesses into two categories, viz., witnesses to the actual commission of the offence and other witnesses like formal witnesses, or those who cannot depose to the actual commission of the offence. Of the first category, those that the prosecution produces, must be examined; but the other witnesses may be examined, only if the Magistrate considers it necessary. It seems, prima facie, that the prosecution cannot insist on their examination. An accused is given by subs. (5) a right to cross-examine the witnesses, who are examined, and the prosecution can also reexamine them. Then comes sub-s.(6), which reads as follows :—

“When the evidence referred to in subsection (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.”

This sub-section, it is contended, gives the

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Bipat Gope Ve State of Bihar

Hidapatullah J.

Bipa: Gope State of Biker Hidayeteliah J.

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

Mr. Sarjoo. Prasad for the appellants, contends, on the basis of the ruling of this Court in Ramgopal Ganpatrat Ruta v. The State of Bombay ('), that the course followed by the Magistrate in determining whether there was credible evidence or not was the right course, and points to certain passages in the judgment in the above case as supporting his proposition. The cited case interpreted s. 209 of tho Code of Criminal Procedure, which, after amendment of the Code by Act 26 of 1955, deals with proceedings instituted otherwise than on a police report, and under which the Magistrate can discharge au accused if he finds that there are ‘not sufficient grounds” for committing the acoused person for trial. The words of the two sections are not the same, and it is possible to say that the force of the two sections is also not the same, and that s. 209 gives a power to enter upon the merits of a case in & manner which s. 207A doer not warrant. Whether the change of the language is deliberato or due to the fact that different draftsmen drafted the two sections, the test for discharging the accused must, in a large way, be the same under both tho sections, and it is hardly necessary to decide the full of ambit of 8. 207A, and contrast it with that of s. 209. If there is any indic:tion in the language, it ig altogether on the side that the Magistrate must find a stronger case for discharging an accused under s. 207A than under

(1) [1958] $.C.R. 618.

é ah

28.C-R. SUPREME COURT REPORTS 953 s. 209. But, whatever the meaning of the two expressions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the sessions trial was before him. To this extent, Mr. Sarjoo Prasad fairly concedes, s. 207A (6) cannot be carried. Put in other words, the section can only mean that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial. What those cases would be, which would satisfy the test, may not generally be stated here, because, in our opinion, this case is far from the borderline, where only difficulties are likely to be met.

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

In our opinion, whatever the jurisdiction conferred by sub-s.(6) of s. 207A, it does not entitle a Magistrate to try the case on his own, and forestall the decision of the Court of Session, and this is what the Magistrate, in fact, did here. We, therefore, agrec that the order of discharge passed by him was in excess of his jurisdiction, and it is

Bipat Gope v. State af Bikar Hidayatuliah J.

Bipet Gope v. State of Bihar

Hidayatuliah J.

—

Februas + 1, hardly necessary in this case to show how fara Magistrate can go to find that there is no ground for committing the accused to stand bis trial in a Court of Session. We see no reason to interfere with the order of the High Court, and dismiss the appeal.

It is a matter of regret that much delay has taken place in this case, and it may harm the case onthe one side orthe other. We hope that now the case will be heard from day to day, and disposed of, as expeditiously as possible. We further make it clear to the Court or Courts dealing with this case that any expression of opinion on the merits of the case whether by us or by the High Court or the Magistrate, who first heard it, or else where, in this order or the orders preceding this, isto be completely ignored. and the case shall be decided without being influenced in any way by euch expression of opinion.

Appeal dismissed.

RAMALINGAM & CO. v. THE STATE OF MADRAS

(S. K. Das, M. HipayaTULLAH and J. C. SHAH. JJ.)

Sales Tax—Contract for sale of goods by correspondence— C.1.P.or C.F. contracts—Bill of lading handed over to bankers to part with only on payment—Whether property in goods passed in Madras— Position of bankers Vis-a- Vis seller and foreign buyer—Intermediary banker tf agent of seller— Madras

General Sales Tax Act (Mad. 9 of 1939).

The assessees were doing business principally as exporters of vegetable fibres to foreign countries. The contracts of sale were C.I.F. or C.F, and were made by corres ndence on approval of samples sent by the assesses tot e foreign buyers. ‘The price was payable by draft upon bank credit to be opened by the buyer ; who opened with his own bankers ve ws