t STATE OF WEST BENGAL v. TULSIDAS l'vfUNDHRA (P. B. GAJENDRAGADKAR, K. c. DAS GUPTA AND J. R. MUDHOLKAR, .JJ.) Criminal Procedure-Proceeding on Police report-Accused if entitled to lead evidence-Power of court to examine person as court witness-Magistrate, if bound to exam-ine accused r>erson- Gode of Criminal Procedure, 18.98(Act V of 18.98), ss. 207A, MO. Although an accused person is not entitled to lead evidence in his defence in a proceeding under s. 207 A of the Code of (~riminal Procedure, that does not affect the wide powers a Criminal Court has under s. 540 o:f the (:ode to summon and examine persons as court witnesses where it considers such exa· mination essential for a just decision of the case.
Section 540 of the Code is wide enough to include a proceeding under s. 207 A of the Code and its operation is not excluded by the scheme of s. 207 A of the Code. Arunachalam Swami v. State of Bombay, A.I.R. 1956 Bom.
695 referred to. Sub-section (6) of s. 207A of the Code does not make it incumbent on the Magistrate to examine an accused person unless he thinks it necessary to do so. Consequently, in the present case, where the Magistrate
in a proceeding under s. 207 A of the Code rejected the applica- tion of the accused persons for examination of witnesses in defence not because he had no power under s. 540 of the Code to do so but on the gr,•und that the application was vexatious and was intended to delay the proceeding and the High Court in revision on ·an erroneous view of the Magistrate's order set it aside and directed examination of the accused person under s. 342 of the Code.
Hekl, that the order of the High Court must be set aside. &pumber 11. Stau of West Bengal v. Tulsidas Mundhra CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 88 of 1962. Appeal by special leave from the judgment and
order dated November 30, 1961, of the Calcutta High Court in Cr. R. No. 1117 of 1961. D. R. Prern, R. N. Sachthey and R. Ii. Dhebar, for the appellant. A. S. R. Chari, Ravinder Narain, J. B.
Dadachanji and 0. 0. Mathur, for the respondent. 1962. September 11. The Judgment of the Court was delivered by Cl•jendragadkar, J. GAJENDRAGADKAR, ].-The principal point which the appellant, the State of West Bengal, !,as
raised for our decision in the present appeal, is whe- ther the provisions of section 540 of the Code of Criminal Procedure apply to a case tried by the Magistrate under section 207 A of the Code. That
question arises in this way. On the 7th July, 1960, a charge-sheet was submitted under s. 173 of the Code by Inspector Bhuromal of the Special Police Establishment, New Delhi, in the Court of the Chief
Presidency 'Magistrate, Calcutta, against Hari Das Mundhra, accused No. 1, and the respondent Tulsidas Mundhra, accused No. 2, under section 120B/409 and sections 409 and 477-A of the Indian Penal Code.
On the 5th August, 1960, both the accused persons appeared before the learned Chief Presidency Magis- trate and furnished bail. Thereafter, the case was transferred to M. Roy, the Presidency Magistrate 5th
Court for further proceedings. On the 10th October, 1960, copies of the docu- ments were furnished to the accused persons, and since the record was voluminous, the hearing of the case was. adjourned to the 7th December, 1960.
On the 1st March, 1961, parties were heard and in view of the nature of the offences and the amounts involved, t I S.C.R. the Magistrate took the view that the proper course to follow would be to adopt the commitment
proceedings as laid down in s. 207 A of the Code. Subsequently, the procedure prescribed by the said section was followed. It appears that accused No. 1 who had in the meanwhile been convicted in another
case was undergoing a sentence of imprisonment in the District Jail at Kanpur and so, he could not be produced before the Magistrate until the 7th July, 1961. That is why the case had to be adjourned on
some occasions and effective hearings did not make a material progress until the 7th July. On the 6th July, 1961, the respondent filed a petition before the Magistrate alleging that amongst
the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respon-
dent. The respondent disputed this allegation and prayed that he should be allowed au opportunity to examine defence witnesses to prove that the impug- ned handwriting was not his.
Ory the 7th July, 1961, when the case was taken up for hearing before the Magistrate, he first consi- dered the application made by the respondent to call defence witnesses and on the merits, he rejected the
said application. Then he proceeded to make an order of commitment. In rejecting the application of the respondent for examining defence witnesses the Magistrate took into account the fact that the appli-
cation. had been deliberately made at a very late stage m order to prolong the proceedings in his Court and so, ~hat was one reason why he thought that an unconsc10usably delayed petition which had been
made solely with the object of gainiug time should not be. grante?. He also held that the application was m1sconce1ved. It was urged before the Magistrate that he could examine the said witnesses and in
support of this argument, reliance was placed on a State of H'eJt Bengal v. Tulsidas Afundhra Gajrndragadkar, J. State of T1fest &ngal v. TulsidaJ Mumlhra Gajendragadkar, J. decision of the Bombay High Court in. the case of
Arunachalam Swami v. SU!te of Bomhay (1). The learned Magistrate took the view that the said decision was distinguishable on facts. Whilst the learned Magistrate was delivering this order, an ap-
plication was made before him that the respondent wanted to move the higher Court for a transfer of the case, and though the learned Magistrate felt that this application also was intended merely to prolong the
proceedings in his Court, he adjourned the case be- cause under s. 526(8) it was obligatory on him to do so. That is why he adjourned the hearing of the case to the 20th July, 1961, for passing the remaining
portion of the final order in case the respondent failed to obtain from the higher Court the necessary order of transfer. This order was challenged by the respondent by moving the Calcutta High Court in its criminal revi-
sional jurisdiction. The High Court took the view that s. 540 applied to cases tried under s. 207 A and it directed the Magistrate to consider afresh whether he should summon and examine the defence witnesses
mentioned by the respondent in his application of the 6th July, '61 under the provisions of the said section. Incidentally, the High Court also observed that the accused persons had not been examined under s.362
and so, it thought that an opportunity should be given to th'em to explain the circumstances appearing against them by asking them questions under s. 342. This observation was made even though the High
Court did not think it necessary to decide the general question whether in a commitment enquiry, examina- tion of the accused under s.342 is compulsory or not. In the result, the order passed by the Magistrate on
the 7th July, 1961, was set aside and the matter was sent back to his Court for disposal in accordance with law. It is against this order that the app~Ilant has come to this Court by special leave and on its behalf
11) A. I. R. 1956 Bom. 695. t 1 S.C.R. l\fr. Prem has contended that the High Court was in error in holding that s. 540 of the Code applied to proceedings under s. 207 A. In the alternative, he has
argued that the Magistrate had himself considered the question as to whether the witnesses should be examined in the light of his powers under s. 540 and so, even if his first point failed, he was entitled to
contend that the High Court was not justified in sending the case back to the Magistrate. There is no .Point, he argues, in asking the Magistrate to consider the question once again.
There is no doubt that the new provisions under s.207 A have been introduced for the purpose of expediting the commitment proceedings so as to shor- ten the duration of criminal cases which are exclu-
sively triable by the Court of Session or High Court. Section 206, inter alfo, confers powers on the Magis- trates specified in the section to commit any person for trial to the Court of Session or High Court for
any offence triable by such Court. Under s.207, it is provided that in regard to a case which is triable exclusively by a Court of Session or High Court, or which, in the opinion of the Magistrate, ought to be
tried by such Court, the Magistrate shall : (a) in any proceeding instituted on a Police report follow the procedure specified in s.207 A; and (b) in any other proceeding, follow the procedure specified in the
other provisions of this Chapter. Thus, s. 207 A is applicable to proceedings in respect of offences which are exclusively triable hy the Court of Session or High Court, or which, in the opinion of the Magis-
trate, ought to be tried bv such Court. This section consists of 16 sub-sections which, in a sense, constitute a self-contained Code which has to be followed in dealing with cases under the said section. Sub-sec-
tion (2) authorises the l\fagistratc to issue a process to compel the attendance of anv witness or the pro~uction of any _document or thing. Under sub- section (3), the Mag1st(ate has to satisfy himself that
1!162 S~ate of fVcst Bengal v. Tu!Jida5 -~lundhra State of West Bengal v. Tulsidas A1undhra Gajendragadkar, J. the documents referred to in section 173 have been furnished to the accused and if they are not so furni-
shed, he has to cause the same to be so furnished. Sub-section ( 4) then deals with the stage where the Magistrate proceeds to take evidence of such perons, if any, as may be produced by the prosecution as
witnesses to the actual commission of the offence alleged, and it adds that if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more
of the other witnesses for the prosecution, he may take such evidence also. By sub-section (5), the accused is given liberty to cross-examine the witnesses examined under sub-section (4). Sub-section (6) then
Iavs down that if evidence is recorded under sub- section ( 4) and the Magistrate has considered all the documents referred to in s.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, he 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 he thinks that such person should be tried before himself or some other Magistrate, in which
case he shall proceed accordingly. Sub-section (7) deals with a case where on considering the evidence and the documents produced and after giving oppor- tunity to the prosecution and the accused to be 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". Sub-section (8) then lays down
that as soon as the charge has been framed, it shall be read and explained to the accused and a copy thereof given to him free of cost. Under sub-section (9), the accused shall be required at once to give in,
orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on -I 1 S.C.R. his trial. There is a proviso to this sub-section which entitles the Magistrate in his discretion to allow such
list to be given later, but we are not concerned with that proviso in the present appeal. The rest of the clauses are not relevant for our purpose. It will thus be seen that before the Magistrate
decides either to discharge the accused person, or to direct that he should he tried by himself or by any other Magistrate, or to commit him to the Court of Session or High Court, he has to consider the evi-
dence recorded before him under sub-section (4) and the documents referred to in s. 173. It is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him
to explain circumstances appearing against him in the evidence. He has, of course, to hear the prosecution and the accused person before making the order. The scheme of s. 207 A thus does not appear to provide
for a defence witness to be examined before an order is passed either under sub-section (6) or sub-section(7), and that may be because it was thought by the Legis- lature that in dealing with criminal cases instituted on
a police report, it may ordinarily not be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so, no provision in that behalf has been made. Even the examination of the
accused person has been left to the discretion of the Magistrate under sub-section (6). Sub-section (7) also shows that the examination of the accused person is in the discretion of the Magistrate.
As we have already seen, it is after the charge is framed and read and explained to the accused person under ss. (8) that the stage is reached for him to give in a list of persons
whom he wants to examine under ss.(9). This position shows a striking contrast to the re- levant provisions of s. 208. Section 208 deals with cases where proceedings are instituted otherwise than on a
police report, and it provides that when the accused Statr of IYest Bengal v. Tulsidas Mundhrrz GaJtndragadkar, J. State of West Bengal v. 1Ul;idas Mundkra Gajendragadkar, J. person is brought before the Magistrate, he shall
proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate. Section 208 (3) provides,
inter alia, that if the accused applies to the Magis- trate to issue 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. In other words, in regard to the proceedings tried under s. 208, an accused person is entitled to lead evidence in defence and the Magistrate is bound to
allow such evidence to be led, except, of course, where he comes to the conclusion that such evidence need not be led in which case he has to record his reasons for coming to that conclusion. When we consider the
relevant provisions of s. 207 A and contrast them with the corresponding provisions of s. 208, it becomes clear that an accused person has no right to lead evidence in defence in proceedings governed
by s. 207 A, whereas he has a right to call for such evidence in proceedings governed by section 208. This position, however, does not affect the ques- tion as to whether s. 540 applies even to the proceed-
ings governed bys. 207A. Section 540 gives power to the Court to summon material witness or examine a person in attendance, though not summoned as a witness, or recall and re-examine any person already
examined, and the section specifically provides that the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. It would
be noticed that this section confers on criminal courts very wide powers. It is no doubt for the court to consider whether its power under this section should be exercised or not. But if it is satisfied that the
evidence of any person not examined or further evi- dence of any person already examined is essential to 1 S.C.R. the just decision of the case, it is its duty to take such evidence.
The exercise of the power conferred by s. 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. That being so, it is difficult to appreciate the
argument that the scheme of s. 207 A excludes the application of s. 5-10 to the proceedings governed by the former section. It is true that s.:207 A does not give an accused person a right to lead evidence in
defence, and so, he would not be entitled to make an application in th;it behalf; but that is very different from saying that in proceedings under s. 207 A the Magistrate has no jurisdiction to examine a witness
by exercising his powers under s. 5-10. The denial to the accused person of the right to lead evidence in defence has no material bearing on the question as to whether the Magistrate can exercise his powers under
s. 5-10. We do not think that the scheme of the special provisions contained in s. 207 A legitimately leads to the inference that the applicability of s. 5-10 is thereby excluded.
Sometimes, if a statute contains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular
topic or case as well as others, the particular or the special provision excludes the application of the general provision in respect of the topic or case covered by the former. That, however, is not the position in
the present case, because section 207 A suggests, by necessary implication, for the exclusion of the accused person's right to lead evidence, whereas s. 540 does not refer to the right of the accused person or the
prosecution to lead any evidence, but deals with the court's power to examine witnesses as court witnesses in the interest of justice. Section 540 in terms applies at any stage of any enquiry, trial or other proceeding
under this Code. This section is wide enough to include a proceeding under s. 207 A and so, it would be unreasonable to contend that the scheme of s.207A makes section 540 inapplicable to the proceedings
State of Jt'est Bengal v. Tulsidas Afandhra Gaiendragadkar, J State of West Bengal v. Tulsidas Mundhra Gajendragadkar, J. governed bys. 207A. The power of the court under s. 540 can be exercised as much in regard to cases
governed by s. 207 A as in regard to other proceedings governed by the other relevant provisions of the Code. Therefore, we are satisfied that Mr. Prem is not justified in arguing that the Magistrate had no juris-
diction to examine witnesses as court witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case. The alternative argument urged by Mr. Prem
still remains to be considered. The High Court seems to have thought that in rejecting the application of the respondent for examining defence witnesses, the Magistrate took the view that he had no power to
do so in the present proceedings because his jurisdic- tion was circumscribed by the provisions of s. 207 A. That appears to he the sole basis of the decision of the High Court in reversing the order of the
Magistrate and sending the proceedings back to his court. In our opinion, the High Court was in error in assuming that the Magistrate had not considered the question on the basis of the applicability of s. 540.
In fact, as we have already pointed out, when the Magistrate's attention was drawn to the decision of the Bombay High Court in the case of Arunachalam, Swami(') he observed that the case
was distin- guishable on facts; he did not say that the case was irrelevant because s.540 was inapplicable to the proceedings before him. If he had taken the view that s.540 did not apply at all, the
~vFagistrate would obviously have said that the Bombay decision had no relevance. The reason given by the Magistrate that the case was distinguishable on facts postulates that s.540 was applicable, but in his opinion, the
particular decision was of no assistance to the respon- dent, having regard to the difference of facts between the case before the Magistrate and the Bombay case. Therefore, the order passed by the Magistrate cannot
be successfully challenged on the ground that the (I) A.I.R. I956Bom.695. 1 S.C.R. Magistrate did not consider the question under s. 540 of the Code. It appears from the order passed by the
learned Magistrate that he took the view that having regard to the voluminous evidence adduced by the prosecution, there was no substance in the allegation of the respondent that the evidence of the
witnesses whom he proposed to examine was material or would be decisive. He has observed that the decumentary evidence adduced by the prosecution was voluminous and it clearly showed a prirnll f acie
case against both the accused persons. · In that con- nection, he has also commented on the conduct of the respondent. The photostat copies of the disputed cheques had been given to both the accused persons
nearly nine months before the 6th July, 1961. Argu- ments in respect of these documents were urged before the Magistrate nearly two months before the said date. At no stage was it ever suggested to the
Magistrate that the respondent wanted to lead evide- nce to show that the writing~ on the cheques were not in his handwriting and that the said fact, if proved would materially affect the prosecution case. The
conclusion of the Magistrate was that the application made by the respondent was vexatious and so, was intended merely to delay the proceedings in his court. In view of the. reasons given by the learned Magistrate
in rejecting the application of the respondent, it is very difficult to sustain the view taken by the High Court that the Magistrate was inclined to hold that s.540 did not apply to the proceedings in the present
case. The High Court has also referred to the fact that the accused persons have not been examined under s.342 of the Code, and it has apparently asked the M.a~istrate ~o examine .the .accused persons under
that sect10n, without conindenng the question as to whether it was necessary that the Magistrate should State of West Bengal v. Tulsidas Mundhra Gajendragadkar, J. State of 11'esl
Bengal v. Tulsidas Mundhra Gajendragadkar, J, examine them at this stage. We have already referred to the relevant provisions of s.207 A (6). Sub-section (6) provides that the Magistrate can examine the
accused if he thinks it necessary to do so. Besides,. even according to the judgment of the High Court, the failure to examine the accused persons under s.342 did not amount to a material irregularity and
could not by itself, therefore, justify the reversal of the order passed by the learned Magistrate. The result is, the appeal is allowed, the order passed by the High Court is set aside and that passed
by the learned Magistrate on the 7th July, 1961, is restored. It is to be regretted that the proceedings taken by the respondent in the High Court and those taken by the appellant after the decision of the High
Court have added to the length of the life of this criminal case; and so, it is desirable that the Magistrate should proceed to pronounce his final orders as expe- ditiously as possible and the case should thereafter be
tried by the Court of Session without unnecessary delay. Appeal allowed.