# '959 The State of Bihar v. Hiralal Kejriwal and Another

- **Citation:** [1960] 1 S.C.R. 736
- **Court:** Supreme Court of India
- **Decided:** 1957-05-08
- **Bench:** Jafer Imam, J. L. Kapur, A. K. Sarkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/959-the-state-of-bihar-v-hiralal-kejriwal-and-another-1819
- **Pages:** 13

## Headnote

Criminal Trial-Commitment Order-Quashing of-Magistrate
starting trial as in warrant case-Prosecution witness examined and
cross-examined-Charge framed
without giving opportunity to
accused to adduce defence evidence and co1nmitment order passed- -No
intimation to accused of intention to commit-Whether commitment
order illegal-Prejudice--Code of Criminal Procedure, I898 (V of
I898), SS. 208, 347 and 537.
A complaint was filed against seven persons under ss. 409,
465, 467, 471 and 477A of the Indian Penal Code.
After examining the complainant summonses were issued to the accused to
answer a charge under s. 406.
The trial started as in a warrant
case; prosecution witnesses were examined and cross-examined
and the statements of the accused were recorded, and the
Magistrate heard arguments on the question of framing charges.
Thereafter, he framed charges under ss 409 and 465 read with
ss. 471 and 477A, and without giving previous intimation of his
intention to do so1 passed an order committing the appellants to
the Court of Sessions. The appellants, contended that the
commitment was illegal because the case having begun as a
warrant case it was incumbent upon the Magistrate, when he
decided to commit the case to the Court of Session, to follow the
procedure provided in Ch. XVIII Code of Criminal Procedure,
but he failed to comply with the provisions of ss. 208 to 213 of
S.C.R.
SUPREME COURT REPORTS
737
that Chapter. The complainant urged that even if the proviI959
sions of ss. 208 to 213 had not been complied with no prejudice
.
.
was caused to the appellants and the commitment could not be Chhadami Lal Jain
quashed.
v.
Held, that the commitment order was illegal as the Magistrate
The State of
had failed to comply with the provisions of s. 208 of the Code of
Utlar Pradesh
Criminal Procedure. The proceedings having begun as in a
warrant case, if the Magistrate, at a subsequent stage, was of the
view that the case should be committed to the Court of Sessions,
he had to act under s. 347(1) of the Code and to follow the
procedure prescribed for inquiries under Ch. XVIII of the Code.
When, in the present case, the Magistrate decided to commit the
case, he should have refrained from framing the charge and
should have informed the accused of his intention to commit and
should have called upon the accused to produce defence evidence,
if any. The failure of the Magistrate to intimate his decision to
commit to the accused deprived them of the right to produce
defence evidence, if any, under s. 208.
The denial of this right
was itself sufficient to cause prejudice to the accused and failure
of justice inasmuch as the accused were prevented from leading
evidence which might have induced the Magistrate not to frame
the charge against them.
Subramania Iyer v. King-Emperor, (1901) L.R. 28 I.A. 257 ·
Pulukuri Kotayya v. King-Emperor, (1948) L.R. 74 I.A. 65, and'
Narain Rao v. The State of Andhra Pradesh, [1958] S.C.R, 283,
referred to.
CRIMINAL
APPELLA'l'E
JURISDICTION:
Criminal
Appeal No. 143 of 1957.
Appeal from the judgment and order dated the 8th
May, 1957, of the Allahabad High Court, in Criminal
Reference No. 149 of 1956, arising out of the judgment
and order dated the 14th January, 1956, of the First
Additional Sessions Judge, Agra, in Sessions Trial
No. 141 of 1954 and Criminal Misc. No. I of 1956.
G. S. Pathak and Mohan Behari Lal, for the appel-.
lants.
G. 0. Mnthur, 0. P. Lal and G. N. Dikshit, for the
respondent No. I.
Jnnnrdcin Sharma, for respondent No. 2.
1959. September 14.
The Judgment of the Court
was delivered by
W ANCHOO J.-This is an appeal on a certificate
Wanchoo J.
granted by tho Allahabad High Court in a criminal
matter. The facts of tho ease may be Rot out in some
738
SUPREME COURT REPORTS [1960(1))
i959
detail to bring out the point raised in this appeal.
A
-.-
. complaint was filed by Rajendra Kumar Jain against
Chhadam• Lal Jain the four appellants and three others under ss. 409, 465,
Th• ;;.1, of
467, 4 71 and 4 77 A

## Text

'959
The State of
Bihar
v.
Hiralal Kejriwal
and Another
Subba Rao ].
'959
736
SUPREME COURT REPORTS [1960(1)]
ground for permitting the application tO be filed at a
later stage. In the application for special leave filed
in this Court, though it was stated that the application
filed in the High Court for certificate was rejected, the
reason for the rejection was not disclosed. Further,
the State, presumably, filed this appeal to get the legal
position clarified. We also believe that public interest
does not require that the stale matter should be
resuscitated. In the circumstances, we would be
justified not to exercise our discretionary jurisdiction,
and we accordingly dismiss the appeal.
A ppe<il dismissed.
CHHADAMI LAL JAIN AND OTHERS
v.
THE STATE OF UTTAR PRADESH AND
ANOTHER
(JAFER IMAM, J. L. KAPUR, A. K. SARKAR and
K. N. WANCHOO, JJ.)
Criminal Trial-Commitment Order-Quashing of-Magistrate
starting trial as in warrant case-Prosecution witness examined and
cross-examined-Charge framed
without giving opportunity to
accused to adduce defence evidence and co1nmitment order passed- -No
intimation to accused of intention to commit-Whether commitment
order illegal-Prejudice--Code of Criminal Procedure, I898 (V of
I898), SS. 208, 347 and 537.
A complaint was filed against seven persons under ss. 409,
465, 467, 471 and 477A of the Indian Penal Code.
After examining the complainant summonses were issued to the accused to
answer a charge under s. 406.
The trial started as in a warrant
case; prosecution witnesses were examined and cross-examined
and the statements of the accused were recorded, and the
Magistrate heard arguments on the question of framing charges.
Thereafter, he framed charges under ss 409 and 465 read with
ss. 471 and 477A, and without giving previous intimation of his
intention to do so1 passed an order committing the appellants to
the Court of Sessions. The appellants, contended that the
commitment was illegal because the case having begun as a
warrant case it was incumbent upon the Magistrate, when he
decided to commit the case to the Court of Session, to follow the
procedure provided in Ch. XVIII Code of Criminal Procedure,
but he failed to comply with the provisions of ss. 208 to 213 of
S.C.R.
SUPREME COURT REPORTS
737
that Chapter. The complainant urged that even if the proviI959
sions of ss. 208 to 213 had not been complied with no prejudice
.
.
was caused to the appellants and the commitment could not be Chhadami Lal Jain
quashed.
v.
Held, that the commitment order was illegal as the Magistrate
The State of
had failed to comply with the provisions of s. 208 of the Code of
Utlar Pradesh
Criminal Procedure. The proceedings having begun as in a
warrant case, if the Magistrate, at a subsequent stage, was of the
view that the case should be committed to the Court of Sessions,
he had to act under s. 347(1) of the Code and to follow the
procedure prescribed for inquiries under Ch. XVIII of the Code.
When, in the present case, the Magistrate decided to commit the
case, he should have refrained from framing the charge and
should have informed the accused of his intention to commit and
should have called upon the accused to produce defence evidence,
if any. The failure of the Magistrate to intimate his decision to
commit to the accused deprived them of the right to produce
defence evidence, if any, under s. 208.
The denial of this right
was itself sufficient to cause prejudice to the accused and failure
of justice inasmuch as the accused were prevented from leading
evidence which might have induced the Magistrate not to frame
the charge against them.
Subramania Iyer v. King-Emperor, (1901) L.R. 28 I.A. 257 ·
Pulukuri Kotayya v. King-Emperor, (1948) L.R. 74 I.A. 65, and'
Narain Rao v. The State of Andhra Pradesh, [1958] S.C.R, 283,
referred to.
CRIMINAL
APPELLA'l'E
JURISDICTION:
Criminal
Appeal No. 143 of 1957.
Appeal from the judgment and order dated the 8th
May, 1957, of the Allahabad High Court, in Criminal
Reference No. 149 of 1956, arising out of the judgment
and order dated the 14th January, 1956, of the First
Additional Sessions Judge, Agra, in Sessions Trial
No. 141 of 1954 and Criminal Misc. No. I of 1956.
G. S. Pathak and Mohan Behari Lal, for the appel-.
lants.
G. 0. Mnthur, 0. P. Lal and G. N. Dikshit, for the
respondent No. I.
Jnnnrdcin Sharma, for respondent No. 2.
1959. September 14.
The Judgment of the Court
was delivered by
W ANCHOO J.-This is an appeal on a certificate
Wanchoo J.
granted by tho Allahabad High Court in a criminal
matter. The facts of tho ease may be Rot out in some
738
SUPREME COURT REPORTS [1960(1))
i959
detail to bring out the point raised in this appeal.
A
-.-
. complaint was filed by Rajendra Kumar Jain against
Chhadam• Lal Jain the four appellants and three others under ss. 409, 465,
Th• ;;.1, of
467, 4 71 and 4 77 A of the Indian Penal Code. It is not
uttar Prnde.;h
necessary for present purposes to set out the details of
the complaint. Suffice it to say that after the stateWanchoo J.
ment of the complainant under s. 200 of the Code of
Criminal Procedure hereinafter referred to as the
Code) summonses were issued to the accused persons
requiring them to answer a charge under s. 406 of the
Penal Code. Prosecution witnesses wei·e then examined
and cross-examined and the statements of the accused
persons recorded. The Magistrate then heard arguments on the question of framing of charges which
were concluded on September 23, 1954. It was then
ordered that the case should be put up on September
30, 1954, for orders. On that date the Magistrate
framed charges against the four appellants under
ss. 409 and 465 read withs. 471 and 477A of the Penal
Code.
On the same date the Magistrate ordered
commitment of the four appellants to the Court of
Session on these charges. The remaining three accused
were discharged.
'J;'here was then a revision petition by Rajendra
Kumar Jain against the discharge of one of the three
accused, namely, Bhajan Lal. When the matter came
ur before the .First Additional Sessions Judge Agra,
he ordered suo molu on April 9, 1955, after a perusal of
the commitment order that Bhajan Lal be committed
to the Court of cession to stand his trial. In view of
this order he dismissed the revision petition as infructuous. Thereupon Bhajan Lal went in revision to the
High Court. That petition was heard by Roy, J., and
he set aside the order of commitment of Bhajan Lal
and one of the reasons given by him for doing so was
that a Magistrate was not empowered to frame a
charge and make an order of commitment until he had
taken all we h evidence as the accused might produce
before him. As Bhajan Lal had not been called upon
to produce evidence in defence the order of commitment made by the Sessions .Judge was held to be not
in accordance with law. This order was passed on
S.C.R.
SUPREME COURT REPORTS
739
October 6, 1955. Thereupon on January 7, 1956, the
z959
four. appellants file~ a revision petition befo;e the Ckhadami Lal Jain
Sessions Judge praymg that the order of commitment
v.
passed against them be quashed and the main reason
The state of
advanced in support of this petition was that the
Uttar Pradesh
learned Magistrate had not observed the mandatory
provisions oflaw laid down in ss. 208 to 213 of the Code
Wanchoo I·
which were essential for a valid commitment. This
petition came up before the same First Additional
Sessions Judge and he made a reference to the High
Co11rt that as the procedure followed by the Magis.
tr~te was irregular the order of commitment, dated
September 30, 1954, was bad in law, and should be
quashed.
This reference came up for hearing before another
learned Judge of the High Court, namely, Chowdhry, J.,
and he took the view that the Magistrate had not
failed to comply with the provisions of s. 208 and that
non-compliance with the provisions of ss. 211 and 212
was curable under s. 537 of the Code. He, therefore,
rejected the reference. There was then an applica.
tion for a certificate to appeal to this Court which
was allowed, particularly, as the view taken by
Chowdhry, J., was in conflict with the view taken by
Roy; J., already referred to.
The main contention of the appellants before us is
that as the case began before the Magistrate as a
warrant case under s. 406 of the Penal Code, it was
incumbent upon the Magistrate, when he decided, in
view of the provisions of s. 347 (1) of the Code, that
the case should be ·committed to the Court of Session,
to follow the procedure provided in Ch. XVIII of the
Code and inasmuch as he had failed to comply with
ss. 208 to 213 of the Code the commitment was bad in
law and should be quashed.
The first question that falls for consideration, therefore, is whether the Magistrate when he began this
case, was proceeding in the manner provided for the
trial of warrant cases. Section 347 (1) of the Code
comes into play when at any stage of the proceedings
in any trial before a Magistrate, it appears to him
that the case ought to be tried by the Court of
740
SUPREME COURT REPORTS [1960(1)]
i959
Session ; he has then to commit the accused under the
-
provisions herein before contained.
The Sessions
ChhadamiLal Jain Judge who made the reference held that the case
Th ;· 1 1
before the Magistrate 'proceeded from the beginning
Utt;, p::a:sh
as if it was a trial of a warrant case. It was on that
basis that the Sessions Judge held that when' the
wanchooJ.
Magistrate made up his mind that the case ought to
be committed to the Court of Sessions in view of the
provisions of s. 347(1) of the Code it was his duty to
observe the procedure laid down in Ch. XVIII, particularly, under ss. 208, 211 and 212 of the Code. The
order of reference was sent to the Magistrate for
explanation, if any, and the Magistrate replied that he
had no explanation to submit. He did not say)n his
explanation that he was not proceeding as in a
warrant case and that the proceedings before him
throughout were proceedings in the nature of an inquiry under Ch. XVIII. W'hen, however, the matter
came up before the High Court, Chowdhry, J., was of
opinion that though the Magistrate was competent to
try the case as summonses has been issued under
s. 406 I. P. C. only, it was open to him to hold an
inquiry under Ch. XVIII from the very beginning in
view of the provisions of s. 207 which empower a
Magistrate to follow the
procedure provided in
Ch. XVIII in cases exclusively triable by a Court of
Session and also in cases which are not exclusively
triable by the Court of Session . but which in the
opinion of the Magistrate ought . to be tried by such
Court. The High Court was further of the view that
the offence mentioned in the summons should be
deemed to have given notice to the accused that it
was optional with the Magistrate to hold an inquiry
with a view to commit them to the Court of Session
or to try them himself as in a warrant case because
column 8 of Schedule II of the Code says that a case
un<ler s. 406 is triable by a Court of Session, Presidency Magistrate or Magistrate of the first or second
class.
Therefore, according to the High Court the
matter was at large whether the Magistrate was going
to adopt one procedure or the other despite the issue
of summonses under s. 406 of the Penal Code and that
S.O.R.
SUPREME COURT REPORTS
741
nothing had happened to induce the belief in the
z959
accused that they would be tried as in a warrant case. Chh
-:-L 11 .
.
C
h
h
adami a . "'"
The High ourt, t erefore, held that t e case was pro.
v
ceeded with from the beginning as if it was an inquiry
Th• s;at• of
under Ch. XVIII and on that view it held that there
Uttar Pradesh
was no non-compliance with s. 208 of the Code.
As
for non-compliance with ss. 211 and 213, the High
Wamhoo f.
Court was of the view that it was curable under s. 537
of the Code as no prejudice was caused.
We must say with respect that this view of the
nature of the proceedings before the Magistrate is not
correct. It is true that it is open to a Magistrate to
hold an inquiry from the beginning under Chapter
XVIII in a case not exclusively triable by the Court
of Session. But the mere fact that the Magistrate
has such power does not necessarily indicate to the
accused that he is holding an inquiry under Ch. XVIII
rather than a trial before himself. Where the case is
not exclusively triable by the Court of Session, the
accused would n,aturally conc1ude that the proceedings
before the Magistrate are in nature of a trial and not
an inquiry under Ch. XVIII. If the Magistrate
intends to use .his powers under s. 207 and hold an
inquiry from the beginning in a case not exclusively
triable by the Court of Session, the only way in which
the accused can know that he is holdillg an inquiry
and not a trial is by the Magistrate informing the accused that he is holding an inquiry under Ch. XVIII and
not trial. If he fails to do so, the accu.sed can reasonably conclude that a trial is being held. In this case
undoubtedly the Magistrate did not indicate to the
accused from the beginning that his proceedings were
in the nature of an inquiry under Ch. XVIII. Therefore the accused would naturally conclude that the
proceedings before him were in the nature of a trial of a
warrant case as the summonses that they had received
were under s. 406 of the Penal Code only.
The fact
that in the complaint s. 467, which is exclusively
triable by a Court of Session, was mentioned is of no
consequence for the summonses to the accused were
only for a trial under s. 406 of the Penal Code.
It
must, therefore, be held that the :proceedin~s before
9t
742
SUPREME COURT REPORTS [1960(1)]
'959
the Magistrate began a.s in the trial of a warrant ca.se
Chhadami Lal Jain and ifd!he Ma.gistfrahte a~ a. suhbseqhuent stage of the
v.
procee mgs was o t e view t at t e case should be
The State of
committed to the Court of Session, he would have to
Ullar Pradesh act under s. 347 (1) of the Code.
We have been a.t
pains to refer to this aspect of the matter for considera.-
Wamhoo J.
tions would be different if the case was exclusively
triable by the Court of Session and began from the
outset as a.n inquiry under Ch. XVIII. Wha.t we shall
say hereafter must, therefore, be taken to apply only
to a case which began as a proceeding in a warrant or
summons case a.nd in which the Magistrate at a. later
stage takes action under s. 34 7 ( 1 ).
This brings us to a consideration of the duty of the
Magistrate who takes action under s. 347 (1) of the
Code. That section reads as follows :-
" If in a.ny inquiry before a. Magistrate or in a.ny
trial before a. Magistrate, before signing judgment, it
appears to him at any stage of the proceedings tha.t
the ca.se is one which ollght to be tried by the Court
of Session or High Court, and if he his empowered
to commit for trial, he shall commit the accused
under the provisions hereinbefore contained."
The first question that ha.s to be decided is the
meaning of the words "under the provisions hereinbefore contained". These words have been the subject
of decision by a number of High Courts a.nd the High
Courts are unanimous that they mean that if the
Magistrate decides at some stage of the trial to commit
the accused, he has to follow the provisions contained
in Ch. XVIII. It is not necessary to refer to those
decisions for the words themselves a.re quite clear.
They lay down that if the Magistrate comes to the
conclusion that the accused ought to be committed for
trial, he shall commit in accordance with. the provisions contained in the earlier part of the Code, namely,
in Ch. XVIII. This of course does not mean tha.t
the Magistrate must begin over a.gain from the beginning. All that he has to do when he decides tha.t
the case ought to be committed is · to inform the
accused a.nd see that the provisions of Ch. XVIII a.re
complied with liO fa.r a.s they ha. ve not been complied
S.C.R.
SUPREME COURT REPORTS
743
with up to the stage at which he decides that there
z959
ought to be a commitment. Now the procedure under Chh d
. L 11 .
Ch. XVIII is laid down in ss. 208 to 213 of
a am~. "
am
the Code. The Magistrate begins by hearing the
The State of
c:omplainant, if any, and takes all evidence that
Uttar Pradesh
may be produced in support of the prosecution or on
behalf of the accused or as the Magistrate may call
Wanchoo f.
himself. The Magistrate is also required to issue
process to compel the attendance of any witness or the
production of any document or other thing if the complainant or officer conducting the prosecution of the
accused applies to him. After the evidence under
s. 208 has been taken the Magistrate then examines the
accused for the purpose of enabling him to explain any
circumstances appearing in evidence against him under
s. 209. Thereafter if he is of opinion that there are
not sufficient ground& for committing the accused for
trial, he can discharge him unless it appears to him
that such person should be tried before himself or
some other Magistrate in which case he has t9 proceed
accordingly. On the other hand, if the Magistrate is
of opinion after taking the evidence and examining the
accused that there are sufficient grounds for committing the accused for trial, he has to frame a charge
under s. 210 declaring with what offence the accused
is charged. The charge is then read over and explained
to the accused and a copy thereof, if he so requires, is
furnished to him free of cost. After the charge is
framed the Magistrate calls upon the accused under
s. 211 to furnish a list of persons orally or in writing
whom he wishes to be summoned to give evidence on
his trial. The Magistrate may also allow the accused to
furnish a further list at a later stage in pis discretion.
Section 212 gives power to the Magistrate in his discretion to summon and examine any witness named in
any list under s. 211. Then comes s. 213 which lays
down that if the accused has refused to give a list as
required by s. 211 or if he has given one and the
witnesses, if any, included therein whom the Magistrate
desires to examine, have been summoned and examined
under s. 212 the Magistrate may make an order committing the accused for trial by the High Court or the
744
SUPREME COURT REPORTS [1960(1)]
'959
Court of Session and shall also briefly record the reasons
Chlad -:-;al 1 . for such commitment. On the otherhand,ifheissatis-
'
am~.
•in ~ed after hearing the witnesses for the defence that
The state of
there are not sufficient grounds for committing the
Uttar Pradesh
accused, he may cancel the charge and discharge the
Wanchoo ].
accused.
It will be seen from this analysis of the provisions
relating to commitment that s. 208 gives a right to the
accused to produce evidence in defence before the
Magistrate examines him under s. 209 and proceeds to
frame a charge under s. 210. Now when a Magistrate
makes up his mind to commit a case not exclusively
triable by the Court of Session. under the power given
to him under s. 347 (1) of the Code, he has to follow
this procedure. But as we have said earlier it is not
necessary that the Magistrate should begin from the
beginning again when he so makes up his mind. The
Magistrate may make up his mind at any stage of the
trial before him and generally speaking four contingencies may arise. Firstly, he may make up his mind
after the 'trial is practically over and the witnesses
for the prosecution have been examined and crossexamined after the charge, the accused has been
examined both under ss. 253 and 342 of the Code
and and all the defence evidence has been taken. In
such a case ss. 208, 209 and 210 have been complied
with and all that the Magistrate has to do is to intimate to the accused that he intends to commit him
for trial and ask him to give the list of witnesses under
s. 211 and proceed thereafter as provided in Ch. XVIII.
Secondly, the Magistrate may make up his mind after
all the witnesses for the prosecution have been examined and cross-examined and the charge has been framed
but no defence has been taken. In such a case that
part of s. 208 which lays down that all the evidence
for the prosecution shall be taken, has been complied
with and the Magistrate may then proceed to comply
with the rest of section 208 and take the defence evidence.and then proceed further under ss. 209 to 213 and
amend the charge so as to make it conformable to a
charge in an inquiry under Ch. XVIII or cancel it.
Thirdly, the Magistrate may make up his mind after
S.C.R.
SUPREME COURT REPORTS
745
some of the prosecution witnesses have been examined
x959
and cross-examined and a charge has been framed. In Chh d -:-L 1 1 .
.
fh
aamiaasn
such a case he has to examme the rest o t e prosecuv.
tion witnesses under s. 208 and take the defence evidThe state of
ence, if any, produced by the accused and then proceed
Uttar Pradesh
under ss. 209 to 213 amending or cancelling the charge
already framed as indicated earlier.
Lastly, the
Wamhoo].
Magistrate may have only just begun taking evidence
for the prosecution and may not have framed a charge.
In such a case he takes the rest of the prosecution
evidence and complies with the provisions from ss. 208
to 213. But in each of these four contingencies it is
the duty of the Magistrate to intimate to the accused
that he has made up his mind to commit in view of the
provisions of s. 347(1) and then proceed in the manner
indicated above.
It is necessary that the accused
should know when the Magistrate makes up his mind
to commit so that their right under s. 208 to produce
defence, if any, before commitment is made is safeguarded.
Now what happened in this case was this. The
Magistrate had apparently taken all the prosecution
evidence and the prosecution witnesses had been examined and cross-examined ; the Magistrate had framed
no charges upto September 30, 1954. He had heard
arguments on the question whether any charges should
be framed and had fixed September 30, 1954, for orders
in this respect.
When, therefore, he decided on
September 30, 1954, that the case ought to be committed to the Court of Session, the proper course for him
was to refrain from framing any charges and intimate
to the accused that he intended to commit them for
trial. He then should have called upon them to produce defem::e evidence, if any, under s. 208 and then
proceeded further under Ch. XVIII. The Magistrate,
however, failed to inform the accused that he had
made up his mind to proceed under s. 347 (1) and to
commit them for trial. What he did on September 30,
1954, was to frame charges forthwith and record an
order committing the accused to tl1e Court of Session
under s. 213 of the Code.
He thus deprived them of
their right to lead defence evidence, if any, under
s. 208. It may be that if he had told them that he was
746
SUPREME COURT REPORTS [1960(1))
'959
going to proceed under s. 347 (I) and commit them for
Chhadami 7.ai Jain trial and asked them if. there was any defence evidence
v.
to be produced, they might have said that they did not
The state of
wish to produce any defence before him at that stage.
Uttar Pradesh
But what the accused would have said if the Magistrate had proceeded in this manner is irrelevant in
Wanehoo].
considering the question whether the commitment in
this case was bad in law inasmuch as it did not comply
with s. 208 so far as giving the accused an opportunity to lead defence evidence, if any, was concerned.
The fact remains, therefore, that in this case the Magistrate when he decided to act under s. 347 (1) did not
intimate that decision to the accused and proceeded
forthwith to commit them for trial under s. 213, thus
depriving them of the right to produce defence
evidence, if any, under s. 208.
The next question which falls for consideration is
the effect of this non-compliance with s. 208 of the
Code and whether it is curable under s. 537 of the Code.
The effect of non-compliance with variqus provisions
of the Code and whether such non-compliance is curable under s. 537 have been the subject of a large
num her of cases before various High Courts and also
before their Lordships of the Judicial Committee of the
Privy Council. It is not necessary to refer to this
mass of authorities. One of the earliest of these case
decided by the Privy Council is Subramania Iyer v.
King-Emper:.or('), while one of the latest is Pulukuri
Kotayya v. King-Emperor('). The law was summed up
by their Lordships of the Judicial Committee in
Pulukuri Kotayya's case (2) at p. 75 in these words:
" When a trial is conducted in a maner different
from that prescribed by the Code (as in N.A. Subramania Iyer' s case (1 ), the trial is bad, and no question
of curing an irregularity arises ; but if the trial is
conducted substantially in the manner prescribed by
the Code, but some irregularity occurs in the
"course of such conduct, the irregularity can be
cured under s. 537, and none the less so because the
irregularity involves, as must nearly always be the
case, a breach of one or more of the very comprehensive provisions of the code. The distinction
(1) (1901) L.R. 28 I.A. 257.
(z) (19<18) L.R. 7" I.A. 65.
S.C.R.
SUPREME COURT REPORTS
747
drawn in many of the cases in India between an
x959
illegality and an irregularity is one of degree rather Chh d ~
1 1 .
h
f k. d
Th"
.
fi d
.
th
a ami a
ain
t an o
m .
is view
n s support m
e
v.
decision of their Lordships '
Board in Abdul
The Stale of
Rehman v. The King-Emperor (1) where failure to
Uttar Pradesh
comply with as. 360 of the Code of Criminal Procedure was held to be cured bys. 535 and 537."
Wanchoo f.
These observations were quoted with approval by this
Court in Narain Rao v. The State of AndhraPradesh(2).
It seems, therefore, fruitleis to consider whether the
non-compliance with s. 208 in this case is an illegality
which cannot be cured under s. 537 or an irregularity
which is curable thereunder. As the stage of trial
has not been reached in this case, no question arises
of considering whether the trial has been conducted
in a manner different from that prescribed by the
Code. What we have to see is whether the breach of
s. 208 which has occurred in this case is such that the
Court will presume prejudice to the accused by the
mere fact of the breach. If such presumption can be
made, the breach would obviously be not curable
under s. 537 of the Code, even assuming that that
section applies. The question, therefore, which eventually emerges is whether this breach of s. 208 is of
such a character that the Court wilt presume that
there has been prejudice to the accused by the mere
fact of the breach. Now the accused has a right
under s. 208 to produce evidence ir. defence, if any,
before. the Magistrate proceeds to decide whether a
char~e should be framed or not. The Magistrate's
decision whether the charge should be framed or not
is bound to be affected one way or the other if evidence is produced by the accused, for the Magistrate
would then be bound to consider the effect of that
evidence on the question of framing the charge. If
the accused is denied the opportunity of leading that
evidence which he has a right to do under s. 208, it
seems to us that the denial of such right is sufficient
to cause prejudice to the accused and s. 537 would
have no application to a case of this kind. The possibility that the accused may not have produced defence
if asked by the Magistrate whether he would do so,
(1) (1926) L.R. ~ .. I.A. 96.
(2) [19~8] s.c.~. 28~.
748
SUPREME COURT REPORTS [1960(1)]
i959
is of no consequence, so far as this conclusion is
Ch/Jada --:-Lal 1 . concerned. If this is the reply expected, it makes it
m;.
••n all the more incumbent on the Magistrate to inform
The stat• of
the accused that he was intending to commit the
Uttor Pradesh
case and ask him if he wished to produce evidence.
If the accused did not want to do so, the Magistrate
wanchoo J.
would have done his duty and his way would be clear
to proceed further with his intention to commit the
accused. But when the Magistrate did not intimate
to the appellants in this case that he was intending to
commit them for trial and proceeded to frame charges
and pass the order of commitment forthwith on
September 30, he was denying to them their right to
produce defence under s. 208 of the Code. The denial
of that right is in our opinion in itself sufficient to
cause prejudice to the accused and failure of justice
inasmuch as the accused were prevented from leading
evidence which might have induced the Magistrate
not to frame a charge against them or cancel it. We
are, therefore, of opinion that the breach of s. 208
which took place in this case was such as was bound
to cause a failure of justice and there is, therefore,
no question of the application of s. 537 in these
circumstances. The commitment is, therefore, bad
in law and must be quashed on this ground alone.
In the petition of appeal the appellants have referred also to breach of provisions of ss. 211, 212 and 213
of the Code. As ·we have come to the conclusion
that the breach of s. 208 in this case is sufficient
to invalidate the commitment it is not necessary to
consider the effect of the further breach of ss. 211,
212 and 213. What we have said in this case with
respect to the effect of the breach of s. 208 may not
be taken as applying to the breach of ss. 211, 212 and
213 for the considerations arising out of those breaches may be different.
We, therefore, allow the appeal, quash the order
of commitment as well as the charges framed and send
the case back to the Magistrate to proceed in the
manner indicated above according to law.
Appeal allowed.