# RAMNARA YAN MOR AND ANOTHER v. STATE OF MAHARASHTRA

- **Citation:** [1964] 5 S.C.R. 1064
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Criminal Appeal No. 164 of 1963
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramnara-yan-mor-and-another-v-state-of-maharashtra-2962
- **Pages:** 35

## Headnote

1963
December 16
1064
SUPREME COURT REPORTS
(1964]
RAMNARA YAN MOR AND ANOTHER
v.
STATE OF MAHARASHTRA
(B.P. SINHA, C.J., K. SUBBA RAO, M. HIDAYATULLAH,
J.C. SHAH .AND N. RAJAGOPALA AYYANGAR
JJ.)
Code of Criminal Procedure (Act V of 1898), ss. 173(4) and
207A(6)-"Evidence", meaning of--lf includes documents under
s. 173(4).
'
I
On the receipt of a police report, the Magistrate First Class
Akola took cognizance of offences under ss. 406, 408, 409, 120B
and 477A Indian Penal Code against the appellants. The Investigating Officer furnished the accused persons with copies of documents which are required by s. 173(4) of the Code of Criminal Procedure to be furnished. At the commencement of the enquiry
under Ch. XVIII of the Code of Criminal Procedure, the Public
Prosecutor informed the Court that the evidence in the case being
"mainly documentary" the prosecution did not desire to examine
any witnesses at the stage of the committal proceeding. After
the arguments on behalf of the State and the accused were heard,
an application was submitted by. the Prosecutor that the accused
be examined by 'the Magistrate under s. 207-A(6) of the Code of
Criminal Procedure.
The application was granted by the Magistrate after rejecting
the objections raised by some of the accused and the accused were
ordered to remain present in court for examination under s. 207-A
sub-ss. (6) and (7). Against that order the appellants· moved the
High Court in rnvision but without success.
It was urged on behalf of the appellant that in an enquiry
for commitment to the Court of Session the accused person can
be asked to explain circumstances appearing against him only
from the oral evidence recorded under s. 207-A(4), and not from
circumstances appearing from the documents furnished under
s. 173(4) of the Code.
Held (per B.P. Sinha, C.J. K. Subba Rao and J.C. Shah,
JJ.) (I) that the legislature has used the expression "evidence"
at three places in cl. (6) of s. 207A of the Code of Criminal Procedure. In the first clause of sub-s. (6) the evidence is, as the
statute expressly enacts "the evidence referred to in sub-s. (4)"
and the expression "that such evidence and documents disclose
no grounds for committing" indicates, having regard to the context
that the evidence referred to in sub-s. (4) alone is comprehended
thereby. But in the context of the explanation of the accused
for the purpose of enabling him to explain any circumstances
appearing again:st him, the legislature has ·used the expression "in
the evidence against him", which is not expressly qualified by reference
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5 S.C.R.
SUPREME COURT REPORTS
1065
to sub-s. (4) nor does any implication arise from the context
which would suggest that it has a limited content.
(ii) The legislature did not intend by using the expression
"examined the accused for the purpose of enabling him to explain
any circumstances appearing in the evidence against him" that the
opportunity to be given to the accused for explaining circumstances
appearing from the oral evidence. Such a construction of the
clause, by putting a restricted interpretation upon the meaning
of the word 'evidence' would in many cases involve great prejudice
to the accused. The circumstances appearing against the accused
would in a large majority of cases be from the statements recorded
under s. 161(3) under s. 164 and other documentary evidence referred to ins. 173(4) and if the accused is not to be given an opportunity to explain those circumstances, to a large extent the judicial
character of the proceeding would be impaired. The accused
may have a complete answer to the documents on which the prosecution seeks to rely. But if by the words used in cl. ( 6) the Magistrate
is prohibited from examining him in respect of those documents
the provision might frequently operate oppressively against the
accused. The scheme of s. 251A of the Code which was brought
on the statute book simultaneously with s. 207-A by Act 26 of
1955, also furnishes an indica

## Text

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1963
December 16
1064
SUPREME COURT REPORTS
(1964]
RAMNARA YAN MOR AND ANOTHER
v.
STATE OF MAHARASHTRA
(B.P. SINHA, C.J., K. SUBBA RAO, M. HIDAYATULLAH,
J.C. SHAH .AND N. RAJAGOPALA AYYANGAR
JJ.)
Code of Criminal Procedure (Act V of 1898), ss. 173(4) and
207A(6)-"Evidence", meaning of--lf includes documents under
s. 173(4).
'
I
On the receipt of a police report, the Magistrate First Class
Akola took cognizance of offences under ss. 406, 408, 409, 120B
and 477A Indian Penal Code against the appellants. The Investigating Officer furnished the accused persons with copies of documents which are required by s. 173(4) of the Code of Criminal Procedure to be furnished. At the commencement of the enquiry
under Ch. XVIII of the Code of Criminal Procedure, the Public
Prosecutor informed the Court that the evidence in the case being
"mainly documentary" the prosecution did not desire to examine
any witnesses at the stage of the committal proceeding. After
the arguments on behalf of the State and the accused were heard,
an application was submitted by. the Prosecutor that the accused
be examined by 'the Magistrate under s. 207-A(6) of the Code of
Criminal Procedure.
The application was granted by the Magistrate after rejecting
the objections raised by some of the accused and the accused were
ordered to remain present in court for examination under s. 207-A
sub-ss. (6) and (7). Against that order the appellants· moved the
High Court in rnvision but without success.
It was urged on behalf of the appellant that in an enquiry
for commitment to the Court of Session the accused person can
be asked to explain circumstances appearing against him only
from the oral evidence recorded under s. 207-A(4), and not from
circumstances appearing from the documents furnished under
s. 173(4) of the Code.
Held (per B.P. Sinha, C.J. K. Subba Rao and J.C. Shah,
JJ.) (I) that the legislature has used the expression "evidence"
at three places in cl. (6) of s. 207A of the Code of Criminal Procedure. In the first clause of sub-s. (6) the evidence is, as the
statute expressly enacts "the evidence referred to in sub-s. (4)"
and the expression "that such evidence and documents disclose
no grounds for committing" indicates, having regard to the context
that the evidence referred to in sub-s. (4) alone is comprehended
thereby. But in the context of the explanation of the accused
for the purpose of enabling him to explain any circumstances
appearing again:st him, the legislature has ·used the expression "in
the evidence against him", which is not expressly qualified by reference
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5 S.C.R.
SUPREME COURT REPORTS
1065
to sub-s. (4) nor does any implication arise from the context
which would suggest that it has a limited content.
(ii) The legislature did not intend by using the expression
"examined the accused for the purpose of enabling him to explain
any circumstances appearing in the evidence against him" that the
opportunity to be given to the accused for explaining circumstances
appearing from the oral evidence. Such a construction of the
clause, by putting a restricted interpretation upon the meaning
of the word 'evidence' would in many cases involve great prejudice
to the accused. The circumstances appearing against the accused
would in a large majority of cases be from the statements recorded
under s. 161(3) under s. 164 and other documentary evidence referred to ins. 173(4) and if the accused is not to be given an opportunity to explain those circumstances, to a large extent the judicial
character of the proceeding would be impaired. The accused
may have a complete answer to the documents on which the prosecution seeks to rely. But if by the words used in cl. ( 6) the Magistrate
is prohibited from examining him in respect of those documents
the provision might frequently operate oppressively against the
accused. The scheme of s. 251A of the Code which was brought
on the statute book simultaneously with s. 207-A by Act 26 of
1955, also furnishes an indication that in the examination of the
accused for enabling him to explain circumstances appearing in
the evidence against him, documents referred to in s. 173(4) cannot
be excluded.
(iii) Section 207A(6) contemplates examination only for the
purpose of explaining any circumstances appearing against the
accused. Declining to avail himself of such an opportunity and
reserving his right to make a defence at the trial do not amount
to refusal to answer a question and no presumption can arise
under illustration (h) to s. 114 of the Evidence Act against such
refusal.
The scheme of cl. ( 6) of s. 207 A is not the same as the scheme
of s. 342 of the Code of Criminal Procedure for the reason that
under the latter section the court can ask the accused any general
question to
explain any
circumstances appearing against
him.
(iv) Normally in a criminal trial, the court can proceed on
documents which are duly proved, or by the rules of evidence
made admissible without formal proof. but under the amended
Code the Legislature has in s. 207-A prescribed a special procedure
in proceedings for commitment of the accused. The record consists of the oral evidence recorded under sub-s. (4) of s. 173. and
it would be difficult to regard only those documents which arc
duly proved or which are admissible without proof as "evidence"
within the meaning of cl. ( 6) and not the rest. Section 3 of the
Evidence Act also supports that proposition. The expression
"evidence" as defined ins. 3 of the Evidence Act means and includes
all statements which the court. permits or requires to be made
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
1963
Ramnarayan
Morand
another
v.
State of
Maharashtra
1066
SUPREME COURT REPORTS
[1964]
before it by witnesses and all documents produced for the
inspection of the Court. There is no restriction in this definition
to documents whic:h are duly proved by evidence.
(Per Ayyangar and Hidayatullah JJ. (dissenting): The word
'evidence' in sub-s. (6) of s. 207 A of the Code of Criminal Procedure
is confined to the oral evidence of the prosecution witnesses. The
word 'evidence' occurs three times in this sub-section. In the
opening words of the sub-section where it occurs first referring,
as they do, specifically to the evidence recorded under sub-s. (4)
the word is obviously used only in the sense of oral evidence recorded under sub-s. (4) together with the cross-examination and
re-examination permitted by sub-s. (5). This is followed by the
words 'the Magistrate has considered all the documents referred
to in s. 173'. Documents therefore are treated here as a distinct
category of material distinct from "evidence" and the sub-section
proceeds on the e~:istence of a dichotomy between these two species
of material which the Magistrate has to take into account before
ordering committal. If this dichotomy and this distinction between
"evidence" and documents underlie the texture of the entire subsection, it could not be disputed that the word 'evidence' on the
second occasion when it occurs in sub-s.(6) has to be read as meaning only the evidence of witnesses exam:ined under sub-s. (4).
The last place where the word 'evidence' occurs in the sub-section
is the passage reading 'such Magistrate shall if he is of
opinion that such evidence and documents disclose no grounds for
comm:itting the accused persons for trial'. It is clear that here
the word 'documents' denotes the documents referred 10 earlier
namely those in s.
173 and these are again
distinguished
from 'evidence'. Here also there cannot be any doubt that the
word 'evidence' is a reference to the evidence recorded under
sub-s. (4).
Sub-sections (4), (6) and (7) draw a clear and sharp distinction
between 'evidence' and 'the documents' referred to in s. 173 of
the Code of Criminal Procedure.
No importance should be attached to the absence of the word
'such' and the use instead of the word 'the' in the relevant clause. ·
The defin:ite article 'the' obviously in the context refers to the
'evidence' already referred to in the opening words of the subsection, namely that recorded under sub-s. (4).
Ramdas Kikabhai v. State of Bombay, A.l.R. 1960
Born.
124, not relied on.
Re Macmanaways, [1951) A.C. 161, referred to.
(ii) The Magistrate would have no jurisdiction to examine
an accused under s. 342(1) of the Code (a) either when no oral
evidence for prosecution has been recorded or (b) in respect of
matters about which there is no evidence adduced in the sense
in which the expression is used in the Indian Evidence Act for
enabling the court to hold any fact in issue or a relevant fact to
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5 S.C.R.
SUPREME COURT REPORTS
1067
be proved. The same principle applies as to the circumstances
in which an accused can be examined by the Magistrate under
s. 207-A(6). Where there is no evidence recorded under sub-s.
(4) of s. 207-A, the Magistrate has no jurisdiction to examine an
accused under s. 207-A(6). In the present case the Magistrate
has no jurisdiction to direct the accused to appear before him for
examination.
Bachchan Lal v. State, A.LR. 1957 All. 184 and Bahawala
v. Crown, l.L.R. 6 Lah. 183, relied on.
(iii) The accused should be examined under s. 207A(6) with
reference to what appears against him in evidence legally admissible before the court, while he is not to be required to commit
himself by his answers in respect of matters which would be proved
against him only at the trial and as regards which he would be
examined later under s. 342(1) of the Code. Interpreted otherwise the section would give a good chance for fishing expedition
and of modulating the prosecution case to destroy the accused's
explanation at the appropriate stage. The accused cannot be
asked under sub-s. (6) with reference to documents mentioned
in s. 173( 4) of the Code unless those are legally proved. If without
evidence, properly so called, a magistrate examines an accused, he
would be converting himself into an investigating agency and there
is therefore every possibility of the accused being prejudiced and
that might be the very reason why the sub-section has been framed
in a manner to avoid the result. The position is, of course different
under s. 251A(2) where the examination is by virtue of the statute
and so it stands in a class apart.
(iv) The Magistrate has no jurisdiction to ask question under
sub-s. (6) with the reference to documents mentioned in s. 173(4)
of the Code as they are not evidence under sub-s. (4) of s. 207-A
of the Code. The expression 'evidence' as defined in s. 3 of the
Evidence Act gives merely the dictionary meaning of the word
and it has no application for interpreting the word 'evidence' in
sub-s. (6). The expression 'evidence' is used throughout the criminal
procedure as meaning judicial evidence i.e. oral evidence tested
by cross-examination if any and documents which have been
proved and which are relevant and admissible. The expression
'documents produced for inspection of the court' under s. 3 of the
Evidence Act means merely "for inspection of the Court" and the
court cannot base its findings on the contents of such documents.
(v) The court will be entitled under illustration (h) to s. 114
of the Evidence Act to draw adverse inference for refusal to answer
question put under s. 207 A(6) to the accused.
(vi) The rule of interpretation which is applicable was stated
by Lord Radcliffe: "the meaning which these words ought to be
understood to bear is not to be ascertained by any process akin
to speculation. The primary duty of a court of law is to find
the natural meaning of the words in the context in which they
1963
Ramnarayan
Morand
another
v.
State of
Maharashtra
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
Shah J.
1068
SUPREME COURT REPORTS
[1964 J
occur, the context including any other phrases in the Act which
may throw light on the sense in which the makers of the Act used
the words in dispute."
Re Macmanaway In re, [1951] A.C. 161, relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 164 of 1963.
Appeal by special leave from the judgment and
order dated August 30, 1963 of the Bombay High
Court in (Nagpur Bench) in Criminal Application
No. 197 of 1963.
A.S. Bobde,
O.C. Mathur, J.B. Dadachanji
and Ravinder Narain, for the appellants.
M.C. Setalvad, H.R. Khanna and R.H. Dhebar,
for the respondent.
December 16, 1963. The Judgment of B.P.
Sinha, C.J., K. Subba Rao, and J.C. Shah JJ. was
delivered by Shah J.
The. dissenting Opinion of
M. Hidayatullah and
N..
Rajagopala
Ayyangar
JJ. was delivered by Ayyangar J.
SHAH J.-A police report was lodged in the
Court of the l'vfagistrate First Class, Akola, against
the appellants and fifty-five others on charges for
offences punishable under ss. 406, 408, 409, 120-B
and 477-A Indian Penal Code. The Investigating
Officer furnished the accused persons with copies
of documents which are required by s. 173(4) of the
Code of Criminal Procedure to be furnished. At
the commencement of the enquiry, the Public Prosecutor informed the Court that the evidence in the case
being "mainly documentary" the prosecution did
not desire to examine any witnesses at the stage of the
committal proceeding. After the arguments on behalf
of the State and the accused were heard, an application was submitted by the prosecutor that the accused
be examined by the Magistrate under s. 207-A (6)
of the Code of Criminal Procedure. The application was granted by the Magistrate after rejecting the
objections raised by some of the accused and the accused
were ordered to remain present in Court for their
examination under s. 207-A sub-ss. (6) & (7).
Against
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5 S.C.R.
SUPREME COURT REPORTS
1069
that order the appellants moved the High Court of
1963
Bombay in revision, but without
success. With
special leave, the appellants have appealed to this Ramnarayan
Court.
Mor and
The appellants say that in an enquiry for commitment to the Court of Session the accused person can be
asked to explain circumstances appearing against him
only from the oral evidence recorded under s. 207-A(4)
and not from circumstances appearing from the documents furnished under s. 173{4) of the Code.
A brief review of the provisions relating to proceedings for commitment of the accused to the Court
of Session may be useful in considering the plea of the
appellants. The Court of Session has except in
cases expressly provided in the Code no power to
take cognisance of a case directly on a complaint
or a report of a police officer or on its own motion.
The case must be committed by a Magistrate competent in that behalf. Commitment under the Code
predicates some enquiry into the case for the prosecution by a Magistrate who must be satisfied that there
is a prima facie case against the accused. The enquiry
is calculated to serve a dual purpose to give to the
person accused of the serious offence with which he
is charged information about the case together with
the nature of the evidence with which it is sought to
be established, and at the same time to eliminate
cases in which there is no reasonable ground for conviction. For this purpose, under the Code of Criminal
Procedure as originally enacted in all cases exclusively
triable by the Court of Session, or where in the opinion
of the Magistrate the case ought to be tried by such
Court, witnesses intended to be examined before the
Court of Session were examined before the Magistrate,
documents on which the prosecution sought to rely
were duly proved and tendered in evidence and if
the Magistrate was satisfied that there was sufficient
ground for committing the accused for trial, a charge
was framed on which the accused was committed
for trial. But this. procedure was often found cumbrous and led to great delay in the trial of criminal
another
v.
State of
Maharashtra
Shah J.
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
Shah J.
1070
SUPREME COURT REPORTS
[1964]
cases, without affording any real compensating advantage to the accused at the trial. The Legislature
with a view to secure expeditious disposal of cases
tried by the Court of Session, incorporated by Act
26 of 1955 s. 207-A, which prescribed for enquiry
in proceedings commenced on the report of a police
officer, a simpler procedure while maintaining the
original procedure for commitment of cases commenced
otherwise. Simultaneously with the incorporation of
s. 207-A
provi~.ion was incorporated in s. 173(4)
imposing a statutory obligation upon the police
officer to furnish or cause to be furnished before the
commencement of an enquiry or trial, copies of the
police report, first information report, and of all
other documents or relevant extracts thereof on which
the prosecution proposed to rely, including statements
and confessions :recorded under s. 164, and statements
recorded under s. 161 (3) of the Code. The new
scheme for enquiry in proceedings for commitment
commenced on police report is briefly this: on receiving a report of a police officer, the Magistrate fixes
an early date for holding the enquiry , and if before
the date fixed the prosecutor applies for process to
compel attendance of witnesses or production of
documents or things he may do so. After satisfying
himself at the commencement of the enquiry that the
accused has been furnished with the documents referred to in s. 173( 4 ), the Magistrate records evidence
of persons produced by the prosecution as witnesses
to the actual commission of the offence, and if the
Magistrate is of opinion that it is necessary in the
·interests of justice to take the evidence of other witnesses
he may take such evidence, the accused having liberty
to cross-examine: all such witnesses examined by the
prosecutor or lby the Court. All the documents
on which the prosecutor seeks to rely in support
of the case for the prosecution, statements of all
witnesses recorded ·in the course of investigation
by the Investigating Officer, report of the police officer,
the first information, and confession and statements,
if any, recorded under s. 164 Criminal Procedure
Code are made available to the accused. Witnesses to
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I5 S.C.R.
SUPREME COURT REPORTS
1071
the actual commission of the offence if produced by
the prosecutor and witnesses called at the instance of
the Magistrate are also examined in his presence.
The object of these provisions is manifestly to give
full information to the accused about the entire pattern
of the prosecution case. The documents of which
copies are supplied to the accused and the oral evidence
of witnesses examined before the Magistrate from
the record of the Magistrate. These documents together with the examination of the accused, the list
of witnesses furnished by the accused, which form
the record of the enquiry, together with the charge
has to be sent to the Court of Session. If the order
of commitment is erroneous on a point of law, it
may be quashed by the High Court in exercise of its
jurisdiction under s. 215 of the Code on a consideration of this record. The order of discharge may in
appropriate cases be revised in exercise of the revisional
jurisdiction by the Court of Session or the High Court
on the same record.
Sub-sections (6) & (7) of s. 207-A on which the
argument in this case principally turns provide:
(6) "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."
(7) "When, upon such evidence being taken, such
documents being considered, such examination
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
ShahJ.
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
ShahJ.
1072
SUPREME COURT REPORTS
[1964]
(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 charge<l."
The scheme of the two sub-ss. (6) & (1) is plain: the
Magistrate holding an enquiry may discharge an
accused person if he is of opinion that the evidence
referred to in sub-s. ( 4) and the documents referred
to in s. 173 do not disclose any ground for committing
the accused person for trial, and if he is of opinion,
on a consideration of the oral evidence and the documents referred to in s. 173 that the accused should be
committed for trial, he has to frame a charge and
commit the accused for trial.
In exercising his functions under sub-s. (6) or
sub-s. (7) a Nlagistrate indisputably performs a judicial
function. He is bound to take the evidence of such
persons, if any, as may be produced by the prosecution
as witnesses to the actual commission of the offenee
alleged, and ieven if the prosecutor does not produce
any witnesses the Magistrate may, if he is of opinion
that it is necessary in the interests of justice to take
evidence -0f any one or more witnesses for the prosecution, take that evidence. By the terms of the statute,
an overriding duty is cast upon the Magistrate whether
the prosecutor has or has not produced witnesses
to the actual commission of the offence to examine
witnesses whose examination is, in his view, necessary
in the interests of justice and this power to examine
witnesses is not restricted to the examination of witnesses to the actual commission of the offence alleged.
After recording the evidence of such witnesses and
considering the documents which are referred to
ins. 173(4), the Magistrate may examine the accused,
if he considers it necessary to do so, for the purpose
of enabling the accused to explain any circumstances
appearing in the evidence against him. The Magistrate
then gives to the prosecution and the accused an
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5S.C.R.
SUPREME COURT REPORTS
1073
" opportunity of being heard. He thereafter forms his
opinion whether the evidence and the documents
disclose any ground for committing the accused
for trial.
The object underlying the procedure prescribed
by sub-ss. (4), (6) & (7) is to determine, after the
accused has been apprised of the nature and the details
of the prosecution case together with the evidence
,
oral and documentary on which the case against
'
the accused is sought to be proved, whether there
is a prima facie case against the accused which should
g,o before the Court of Session for trial. In the performance of his functions the Legislature has made
it obligatory upon the Magistrate to record evidence
tendered, or appearing to him necessary, to consider
the documents produced and to give the prosecutor
"·
and the accused opportunity of being heard. The
Magistrate is also authorised to examine the accused,
if necessary, for the purpose of enabling him to explain
-..,
any circumstances in the evidence against him. The
.. ~
power is in terms discretionary-that is made clear
by the use of the expression "if necessary"-but the
discretion must be exercised on sound judicial principles having regard to the purpose of the enquiry which
is to judicially ascertain whether there is a prima facie
case made out against the accused for commitment.
In the context of this scheme it would be difficult
to believe that the Legislature by enacting su b-s.
(6) of s. 207-A sought to restrict the examination
of the accused only to matters which are disclosed
on the oral evidence. It is true that the Legislature
has used the expression "evidence" at three places
in cl. (6), but having regard to the context in which
the expression occurs at different places, the argument
of counsel for the appellants that it uniformly means
oral evidence recorded either of witness produced by
the prosecutor or witnesses examined on his own
initiative by the Magistrate, and does not include
documentary evidence, cannot be accepted. In the
first clause of sub s. (6) the evidence is, as the statute
l/SCI/64-68
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
·Shah J.
'
1963
Ramnarayan
Mor and
another
,,~
State of
Maharashtra
Shah J.
1074
SUPREME .COURT REPORTS
(1964]
expressly enacts "the evidence referred to in sub-s.
(4)", and the expression· "that. such evidence and
documents disclose no grounds for committing"
indicates, having regard to the context, that the evidence
referred to in sub-s. (4) alone is comprehended thereby.
But the expression "the evidence" in the clause "examined the accused for the purpose of enabling him
to explain any circumstances appearing in the evidence
against him" is, in our judgment, not restricted to
;
the oral e'vidence recorded under sub-s. (4). Among
the documents which the Magistrate has to consider
are the documents which the prosecution proposes
to rely upon at the trial including the statements
and confessions, if any, recorded under s. 164 and
s. 161 (3)1. The documents form part of the record
of the Magistrate, and it would be open to the prosecutor and the accused to rely thereon in support of
their respective contentions when they exercise their
right of being heard. Those documents have to
be considered together with the oral ·evidence by the
Magistrate in forming his opinion whether the accused
should be committed to the Court of Session or be
discharged. It would indeed be surprising if the
Legislature intended by using the expression "examined
the accused for the purpose of enabling him to explain
any cin;umstances appearing in the evidence against
him" that the opportunity to be given to the accused
t
'l'
for explaining circumstances appearing against him
_....
must be restricted to circumstances appearing from
··~.
the oral evidence, whereas in making an order of ~
commitment or discharge the Magistrate may take
into consideration the documents referred to in
s. 173 (4) as well as the oral evidence recorded in sub-s.
(4) of s. 207-Aand afford an opportunity to the prosecutor and the accused of being heard on the entire
record. Such a construction of the clause, by putting
a restricted interpretation upon the meaning of the
word "evidence" would in many cases involve great
prejudice to the accused. The circumstances appearing
against the accused would in a large majority of cases
be from the statements recorded under s. 161 (3),
'.under s. 164 and other documentary evidence, but
C.
•
5 S.C.R.
SUPREME COURT REPORTS
1075
if the accused is not to be given an opportunity to
explain those circumstances, to a large extent the
judicial character of the proceeding would be impaired,
for in determining whether the record discloses a
prima facie case against the accused justifying an
order of commitment to the Court of Session for
trial, examination of the accused for the purpose of
enabling him to explain any circumstances appearing
against him only from the oral evidence and not
"·
from the documents referred to in s. 173(4) would
fail to give to the Magistrate a complete picture of
the case. The accused may have a complete answer
to the documents on which the prosecution seeks
to rely. But if by the words used in cl. (6) the Magistrate is prohibited from examining him in respect
of those documents the provision might frequently
operate oppressively against the accused.
There has been a deliberate change of phraseology in using the expression "the evidence" in cl.
(6). In the openipg clause the evidence referred to
,
is evidence taken under sub-s. (4) and as we have
already observed in the last clause the expression
"such evidence" presumably is the evidence referred
to in that sub-section. But in the context of the
examination
of the accused
for
the
purpose
,,
of enabling him to explain any circumstances appearing against him, the Legislature has used the expression
-r
"in the evidence against him'', which is not expressly
qualified by reference to sub-s. ( 4) nor does any im1-f plication arise from the context which would suggest
that it has a limited content.
I
It was urged in the alternative by counsel for
the appellants that even if the expression "evidence"
may include documents, such documents would only
be those which are duly proved at the enquiry for
commitment, because what may be used in a trial,
civil or criminal, to support the judgment of a Court is
evidence duly proved according to law. But by
the Evidence Act which applies to the trial of all
criminal cases, the expression "evidence" is defined in
s. 3 as meaning and including all statements which
1963
Ramnarayan
Mor and
another
v.
State of
Maharashtra
Shah J.
1963
Raninarayan
Mor and
another
v.
State of
Maharashtra
Shah J.
1076
SUPREME COURT REPORTS
[1964]
the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under
enquiry and all documents produced for the inspection of the Court. There is no restriction in this
definition to documents which are duly proved by
evidence. Normally in a criminal trial, the Court
can proceed. on documents which are du~y proved,
or by the rules of evidence made admissible without
formal proof, but under the amended Code the Legisla- · A
ture has in s. 207-A prescribed a special procedure
I
in proceedings for commitment of the accused. The
recnrd consists of the oral evidence recorded under
sub-s. ( 4) of s. 173, and it would be difficult to regard
only those documents which are duly proved, or
1 which are admissible without proof as "evidence"
within the meaning of cl. ( 6) and not the rest. There
is no substance in the contention that the Legislature
could not have intended that the accused should
be examined in respect of documents which are not
duly proved before the Court, because to do so might
in some cases operate, as "a trap for the accused".
The object of the examination it may be remembered
is to afford an opportunity to the accused to explain
any circumstances appearing against him. He may
avail himself of the opportunity. but he is not obliged
l
to do so, and if he does not avail himself of the opportunity he is by the statute exposed to no prejudicial
cons1oquences. . But it was urged that if the accused
declined to explain circumstances in answer to the
Court's question, an adverse inference may be raised;
-\~
and reliance in that behalf was placed upon illustration (h) to s. 114 of the Evidence Act which provides
that the Court may raise a presumption "that, if
a man refuses to answer a question which he is not
compelled to answer by law, the answer, if given,
would be unfavourable to him". We are unable
to hold that because the accused in an enquiry for
committal declines to avail himself of the opportunity
to explain circumstances appearing against him from
the oral or documentary evidence, a presumption
may be raised against him. Declining to avail himself of such an· opportunity and reserving his right
-
-
-
-
t
I
I
,
'
SS.C.R.
SUPREME COURT REPORTS
1077
to make a defence at the trial do not amount to refusal
to answer a question. The opportunity contemplated by s. 207-A (6) for the examination of the accused
is for his benefit and solely for the purpose of enabling
him if he desires to do so to explain circumstances
against him from the oral evidence and also the documents referred to in s. 173(4).
The scheme of cl. (6)
of s. 207-A is not the same as the scheme in s. 342
of the Code of Criminal Procedure. Under the latter
section the Court is authorised to put questions to
the accused for the purpose of enabling him to explain
any circumstances appearing against him and the
Court is required for that purpose to question him
generally on the case after the witnesses for the prosecution have been examined and before he is called upon
to enter upon his defence. But s. 207-A (6) does
not contemplate iUCh general questioning: it contemplates examination only for the purpose of explaining
any circumstances appearing against the accused.
Therefore by merely failing to avail himself of the
opportunity to explain circumstances to which his
attention is drawn the accused does not refuse to
answer a question which would justify a presumption
against him that the answer if given would be against
him.
The scheme of s. 251-A which was brought on
the statute book simultaneously with s. 207-A by
Act 26 of 1955, also furnishes an indication that in
the examination of the accused for enabling him
to explain circumstances appearing in the evidence
against him, documents referred to in s. l 73l 4) cannot
be excluded. Section 251-A prescribes a special
procedure for warrant cases, instituted upon police
reports. In a case started otherwise than on a police
report, the old procedure of examining witnesses
and framing a charge on which the accused is to be
tried continues to apply. But where the proceedings
commence on a police report, the Magistrate has
under s. 251-A (2) to consider the documents referred
to in s. 173(4) and then to examine the accused, if
necessary, and to give the accused and the prosecutor
1963
Ramnarayan
Morand
another
v.
State of
Maharashtra
Shah J.
1963
Ramnarayan
Morand
another
v.
State of
Maharashtra
ShahJ.
1078
SUPREME COURT REPORTS
[1964]
opportunity of being heard. Under s. 251-A no
provision is made for examination of witnesses .before
making an order under sub-s. (2J discharging the
accused or under sub-s. (3) framing a charge. Under
sub-s. (2) of s. 251-A the Magistrate may upon consideration of the doucments referred to in s. 173( 4)
and making such examination, if any, of the accused
as the Magistrate thinks necessary and after giving
the prosecutor and the accused an opportunity of
being heard, discharge the accused if he considers
the charge to be groundless, or frame a charge against
him under sub-s. (3) if there is ground for presuming that the accused has committed an offence. In
a warrant case therefore there will be no evidence of
witnesses and the examination of the accused if
found necessary by the Magistrate must of necessity
be restricted to the circumstances appearing from
the documents under s. · 173 (4). The Legislature
has therefore in enquiries in warrant cases contemplated examination of the accused solely upon circumstanct~s appearing from the documentary evidence referred to ins. 173 (4) and it cannot be assumed
that the examination of the accused in respect of
circumstances appearing from those documents which
are not proved but of which copies have been furnished
to the accused, is so inconsistent with principles of
criminal jurisprudence that it must be discountenanced.
If opportunity may be given to an accused person
before framing a charge under s. 251-A (2), to explain
circumstances appearing from the documents referred
to ins. 173(4), it is difficult to see any ground on;which
the Magistrate holding an enquiry for commitment
may be disentitled to do so under s. 207-A (6). It
would bt~ somewhat anomalous, if it were true, that
in the enquiry before framing a charge against the
accused in respect of a chargeJor an offence which
is triable by the Court of Session as well
as!by a
Magistrate,
two different rules relating to
the
examination of the accused would prevail, according
as the accused is to be tried by the Court of Session,
or by the Magistrate.
I
r
-
4
_J
/'\,
5 S.C.R.
SUPREME COURT REPORTS
1079
We are therefore of the view that the Magistrate
has the power, if he thinks it necessary, to examine
the accused for the purpose of enabling him to explain
any circumstances appearing in the evidence-such
evidence being oral evidence, if any, as may have
been recorded and the documents referred to in
s. 173(4).
We are not concerned to decide whether the
Magistrate in the present case was justified in calling
upon the accused to remain present for their examination after the arguments of the prosecution and
the accused were concluded. Normally, such an
examination would take place before arguments of
the prosecutor and the accused are heard. But
there is nothing in the Code to prevent the examination, if in the course of hearing the arguments, the
Magistrate entertains the opinion that such examination may be necessary in the interests of justice for
the purpose of enabling the accused to explain any
circumstances appearing against him.
In that view of the case this appeal fails and is
dismissed.
1963
Ramnarayan
Morand
another
v.
State~]
Maharashtra
Shah!.
AYYANGAR, J.-We regret our inability to agree
AyyangarJ.
with the judgment just pronounced.
Section 207-A(6) of the Criminal Procedure Code
reads:
v
"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 . commit-
. ting the accused person for trial, record the reasons
and discharge him, unless it appears to the
Magistrate that such person should be tried
1963
·-
R.- nJn;..d·uyan
Jl1or and
another
v.
S:ateof
Muhara;htra
Ayyangar J.
1080
SUPREME COURT REPORTS
[1964]
before himself or some other Magistrate, in
which case he shall proceed accordingly."
The import of the expression 'to explain any circumstances appearing in the evidence against him' is
the only question that is raised for consideration in
this appeal which comes before us by virtue of special
leave granted by this Court under Art. 136 of the
Constitution.
Before dealing with that question and as preliminary thereto it will be convenient to narrate the
facts which have given rise to this appeal.
L
I
(
I
The appellants before us are two out of 57 accused
who are being prosecuted for offences under ss. 120-B,
406, 408, 409 and 477-A, read with s. 34 of the Indian
Penal Code.
The amount said to have been misappropriat1~d is stated to be over Rs. 53 lakhs and the
conspJracy in pursuance of which these various offences
were committed are stated by the prosecution to have
extended over a period of twelve years from 1948
to 1960. The charge-sheet was presented on the
24th of December, 1962, in the court of Shri Halbe,
who was appointed as a Special Magistrate for the
trial of the case. It is common ground that he was
dealing with the case as one which was liable to be
committed to Sessions for trial, if the charges made
against the: accused were held to be prima facie proved
and as the proceedings were initiated on a police
report, the Magistrate is making the inquiry under
the provisiions of s. 207-A of the Criminal Procedure
~
Code, or for shortness, the Code. On March 28,
1963, the Public Prosecutor filed before the Special
Magistrate a memorandum, the material portion
of which read:
"The evidence in this case is mainly documentary. As such the prosecution does not want to
produce any witnesses as evidence before the
committal before this Court.
The Court may be pleased to take into con- 4
sidera.tion all the evidence contained in the
documents the copies of which have been supplied
-
--
' •
5 S.C.R.
SUPREME COURT REPORTS
1081
to the accused and also submitted before this
Court as required bys. 173(4) of the Code.
The Court may then be pleased to give the
prosecution an opportunity of being heard to
explain the whole ~ase."
Subsequent to this date the documents under s. 173
of the Code were filed.
Immediately thereafter, the
parties addressed arguments to the court based on
the documents before the Court.