# SHRIRAM & OTHERS v. THE STATE OF BOMBAY

- **Citation:** [1961] 2 S.C.R. 890
- **Court:** Supreme Court of India
- **Decided:** 1958-02-10
- **Case number:** Criminal Appeals Nos. 57 and 58 of 1960
- **Bench:** Jafer Imam, K. SuBBA RAO, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shriram-others-v-the-state-of-bombay-2059
- **Pages:** 15

## Headnote

Critninal Trial-Commitment-If can be 1nadP. u;ithout recording any evidence-Duty of Committing Court-Code of Criminal
Procedure, z898 (V of z898), s. 207-A.
On the date fixed for the inquiry the prosecution intimated to
the Magistrate that it did not intend to examine any witness in
the Magistrate's Court. The Magistrate adjourned the inquiry
to consider whether it was necessary to record any evidence
before commitment. On the adjourned date he expressed his
opinion that no witnesses need be exan1ined, framed charges
against the appellants and committed them to the Sessions
Court. The appellants contended that the Magistrate had no
jurisdiction to commit them to Sessions \vithout examining
witnesses under sub-s. (4) of s. 207-A of the Code of Criminal
Procedure.
Held, that the order of commitment was valid and the
Magistrate had jurisdiction to make it without recording any
evidence. The position under s. 207-A of the Code is tbat:-
(i) the Magistrate is bound to take evidence of only such
eye-witnesses as are actually produced by the prosecution before
the Committing Court;
2 S.C.R. SUPREME COURT REPORTS
891
(ii) the Magistrate, if he is of opinion that it is in the
interests of justice to take evidence, whether of eye-witnesses or . .
of others, he has a duty to do so;
Shriram & Others
(iii) the Magistrate, if he is not of that opinion and if the
The ;;ate of
prosecution has not examined any eye-witnesses, he has jurisdicBombay
ti on to discharge or commit the accused on the basis of the documents referred to in s. 173 of the Code;
(iv) the d.iscretion of the Magistrate is a judicial discretion which is liable to be corrected by a superior Court.
Macherla Hanumantha Rao v. The State of Andhra Pradesh,
[1958] S.C R. 396, relied on.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 57 and 58 of 1960.
Appeals by special leave from the judgment and
order dated November 5/6, 1958, of the Bombay High
Court at Nagpur in Criminal Appeal No. 94 of 1958.
Jai Gopal Sethi and G. 0. Mathur, for the appellant
(in Cr. A. No. 57 of 1960).
G. O. Mathur, for the appellant (in Cr. A. No. 58
of 1960).
Gopal Singh and D. Gupta, for the respondent.
1960. December 5. The Judgment of the ·Court
was delivered by
Sul!BA RAO, J.-These two appeals raise rather an Subba Rao J.
important question on the interpretation of the provisions of s. 207 A of the Criminal Procedure Code (hereinafter referred to as the Code).
The facts that have given rise to these appeals may
be briefly stated. The appeals arise out of an incident
that took place on November 29, 1957, when one
Sadashiv was murdered in the courtyard of his house
in village Nimgaon. The case of the prosecution was
that the four appellants, armed with sticks, went to
the house of the deceased, dragged him out of the
house and beat him with sticks in the courtyard; and
that as a result of the be.a.ting he died on the next
day at a.bout 5 p.m. at Bhandara Hospital. After
investigation, the police submitted their report to the
Magistrate under s. 173 of the Code along with the
relevant· documents. After forwarding the report,
the officer in charge of the police station furnished
892
SUPREME COURT REPORTS
[1961]
i96o
the appellants with a copy of the report forwarded
Sh . -; 0 h
under sub-s. (1) of s. 173, the First Information Report
riram c.-
l ers
d
v.
recor ed under s. 154 and all other documents or
Th• stat• of
relevant extracts thereof on which the prosecution
Bombay
proposed to rely, including the statements recorded
under sub-s. (3) of s. 161 and also intimated them of
Subba Rao J. the persons the prosecution proposed to examine as
its witnesses. The Magistrate posted the case for
inquiry on February 10, 1958 and on that date the
prosecution intimated that it did not intend to examine any witnesses in the Magistrate's Court. On behalf of the appellants no objection was raised to that
course. But the Magistrate adjourned the inquiry to
1l'ebruary 12, 1958, as he wanted to consider whether
a

## Text

890
SUPREME COURT REPORTS
[1961]
I96o
out any such statutory rule and except making a
-- l)
general grievance that too many persons have been
Rameshwa'
ayal recruited from the Bar, he was unable even to subState 0;·Ptmjab stantiate that the one-third reservation made in
favour of the service members has been violated. In
s. I<. Das J.
any case, unless there is clear proof of a breach of a
statutory rule in making any of the appointments
under consideration here, the point does not merit
any discussion.
Such proof is singularly lacking in
this case.
De&e•nbet 5.
In the result, the appeal fails and is dismissed with
costs.
Appeal dismissed.
SHRIRAM & OTHERS
v.
THE STATE OF BOMBAY
(JAFER IMAM, K. SuBBA RAO and RAGHUBAR
DAYAL, JJ.)
Critninal Trial-Commitment-If can be 1nadP. u;ithout recording any evidence-Duty of Committing Court-Code of Criminal
Procedure, z898 (V of z898), s. 207-A.
On the date fixed for the inquiry the prosecution intimated to
the Magistrate that it did not intend to examine any witness in
the Magistrate's Court. The Magistrate adjourned the inquiry
to consider whether it was necessary to record any evidence
before commitment. On the adjourned date he expressed his
opinion that no witnesses need be exan1ined, framed charges
against the appellants and committed them to the Sessions
Court. The appellants contended that the Magistrate had no
jurisdiction to commit them to Sessions \vithout examining
witnesses under sub-s. (4) of s. 207-A of the Code of Criminal
Procedure.
Held, that the order of commitment was valid and the
Magistrate had jurisdiction to make it without recording any
evidence. The position under s. 207-A of the Code is tbat:-
(i) the Magistrate is bound to take evidence of only such
eye-witnesses as are actually produced by the prosecution before
the Committing Court;
2 S.C.R. SUPREME COURT REPORTS
891
(ii) the Magistrate, if he is of opinion that it is in the
interests of justice to take evidence, whether of eye-witnesses or . .
of others, he has a duty to do so;
Shriram & Others
(iii) the Magistrate, if he is not of that opinion and if the
The ;;ate of
prosecution has not examined any eye-witnesses, he has jurisdicBombay
ti on to discharge or commit the accused on the basis of the documents referred to in s. 173 of the Code;
(iv) the d.iscretion of the Magistrate is a judicial discretion which is liable to be corrected by a superior Court.
Macherla Hanumantha Rao v. The State of Andhra Pradesh,
[1958] S.C R. 396, relied on.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 57 and 58 of 1960.
Appeals by special leave from the judgment and
order dated November 5/6, 1958, of the Bombay High
Court at Nagpur in Criminal Appeal No. 94 of 1958.
Jai Gopal Sethi and G. 0. Mathur, for the appellant
(in Cr. A. No. 57 of 1960).
G. O. Mathur, for the appellant (in Cr. A. No. 58
of 1960).
Gopal Singh and D. Gupta, for the respondent.
1960. December 5. The Judgment of the ·Court
was delivered by
Sul!BA RAO, J.-These two appeals raise rather an Subba Rao J.
important question on the interpretation of the provisions of s. 207 A of the Criminal Procedure Code (hereinafter referred to as the Code).
The facts that have given rise to these appeals may
be briefly stated. The appeals arise out of an incident
that took place on November 29, 1957, when one
Sadashiv was murdered in the courtyard of his house
in village Nimgaon. The case of the prosecution was
that the four appellants, armed with sticks, went to
the house of the deceased, dragged him out of the
house and beat him with sticks in the courtyard; and
that as a result of the be.a.ting he died on the next
day at a.bout 5 p.m. at Bhandara Hospital. After
investigation, the police submitted their report to the
Magistrate under s. 173 of the Code along with the
relevant· documents. After forwarding the report,
the officer in charge of the police station furnished
892
SUPREME COURT REPORTS
[1961]
i96o
the appellants with a copy of the report forwarded
Sh . -; 0 h
under sub-s. (1) of s. 173, the First Information Report
riram c.-
l ers
d
v.
recor ed under s. 154 and all other documents or
Th• stat• of
relevant extracts thereof on which the prosecution
Bombay
proposed to rely, including the statements recorded
under sub-s. (3) of s. 161 and also intimated them of
Subba Rao J. the persons the prosecution proposed to examine as
its witnesses. The Magistrate posted the case for
inquiry on February 10, 1958 and on that date the
prosecution intimated that it did not intend to examine any witnesses in the Magistrate's Court. On behalf of the appellants no objection was raised to that
course. But the Magistrate adjourned the inquiry to
1l'ebruary 12, 1958, as he wanted to consider whether
any evidence was necessary to be recorded before
commitment. On February 12, 1958, he expressed his
opinion that no witness need be examined at that
stage; thereafter, he framed charges against accusedappellants under s. 302, read with s. 34, of the Indian
Penal Code, and also under s. 448 thereof and committed the appellants to the Sessions Court.
Before the learned Sessions Judge the prosecution
led four types of evidence, i.e., (1) eye-witnesses,
namely, P.Ws. 6, 11, 20 and 25; (2) dying declaration,
Ex. P-15, supported by P. Ws. 18, 22 and 19; (3) the
identification of the appellants in·jail by P.Ws. 20 and
25; and (4) recovery of various articles at the instance of
the accused-appellants. The defence examined four witnesses. On a consideration of the entire evidence, the
learned Sessions Judge held that the prosecution case
had been amply borne out and that the four appel.
lants entered into the house of the deceased and beat
him in the manner described by the prosecution witnesses. As no less than 12 contused wounds were
inflicted on the deceased, which resulted in the frac-·
ture of his ribs and injury to the lung, and as the
doctor opined that the death was due to shock aqd
haemorrhage resulting from the said fracture, the
learned Sessions Judge held that the accused-appellants were guilty of murder and convicted them under
s. 302, read with s. 34, Indian Penal Code, and he
further convicted them under s. 448 of the Indian
-
2 S.C.R. SUPREME COURT REPORTS
893
Pena.I Code for trespassing into the house of the
i96o
deceased. On these findings the learned Sessions Sh . -;- Oth
11
.
.
nram ..,.
ers
Judge sentenced the appe ants to undergo impr!Sonv
ment for life on the first count and for 3 months rigoThe st~t• of
rous imprisonment on the second count. The appelBombay
]ants preferred an appeal against their convictions
and sentences to the High Court of Bombay at NagSubba Rao J.
pur. The learned Judges of the High Court, on a resurvey of the entire evidence, agreeing · with the learned
Sessions Judge, accepted the prosecution case, but they
held that the appellants were guilty only under s. 304,
Part I, read with s. 34, Indian Penal Code; and in the
result they reduced the sentence from life imprisonment to 10 yea.rs' rigorous imprisonment in regard to
appellant 1 and to 7 years' rigorous imprisonment in
regard to appellants 2 to 4.
Against the said convictions and sentences, the appellants have preferred, by
special leave, appeals to this Court. Criminal Appeal
No. 57 of 1960 has been preferred by the first appellant and Criminal Appeal No. 58 of' 1960 by appellants 2 to 4.
Learned counsel for the appellants raised before us
the following two points: (1) The Sessions Court and,
on appeal, the High Court have not properly appreciated the evidence and the circumstances of the case in
holding that the appellants had committed the offences. (2) The trial and conviction of the appellants by
the Sessions Court were null and void, as the Magistrate had no jurisdiction to commit the appellants to
Sessions without examining witnesses under sub-s. ( 4)
of s. 207 A of the Code and that, as the order of committal was without jurisdiction, the defect was not
cured either under s. 532 or s. 537. of the Code.
The first question does not merit any consideration.
Both the courts below have carefully considered the
evidence adduced by the prosecution as well as the
accused-appellants and have accepted the prosecution
case. It is a well established practice of this Court
not to interfere on questions of fact, particularly
when they are concurrent findings, except under ex.
ceptional circumstances. We find no such exceptional
UJ
894
SUPREME COURT REPORTS
[1961]
i96o
circumstances in this case. We, therefore, reject the
Sliriram & Others first contention.
.
v.
The second content10n turns upon the interpretaThe State of
tion of Fhe relevant provisions of s. 207 A of the Code.
B-Ombay
Before attempting to construe the relevant provisions
of the section it would he helpful to notice briefly the
Subba Rao J. history of the said section. Under the Criminal Procedure Code, as it originally stood, in the matter of
committal pi;oceedings there was no distinction between the proceeding instituted on a police report and
that instituted otherwise than on police report. The
main object of the committal proceedings was to hold
an inquiry to ascertain and record the case which was
to be tried before the Court of Sessions. It was primarily to give an opportunity to an accused to know
in advance the particulars of evidence that would be
adduced against him in the Court of Sessions so that
he could he in a position to prepare his defence.
Another object, which was no less important, was to
enable the Magistrate to discharge an accused if there
was no prima f acie case against him. This procedure
prevented unnecessary harassment to such accused
and at the same time saved the valuable time of the
Sessions Court. In practice the committal proceeding,
whether intended by the Legislature or not, served
another purpose, namely, it gave an opportunity to the
accused to test the credibility of witnesses by bringi}lg
out the discrepancies between their evidence in the
committing court, the statements Ill6de by them to
the police under s. 161 of the Code and the evidence
given by them in the Court of Sessions. Though very
often accused persons took full advantage of this
additional opportunity to test the veracity of the witnesses, as often as not, it had turned out to be duplication of trials with the resultant long delays in the
disposal of criminal cases. The advantage of committal proceeding was not solely for the accused, for the
prosecution by examining the witnesses before the
committing Magistrate secured their testimony in the
sense that though it was tampered subsequenty-it is
unfortunately a frequent phenomenon in . criminal
cases-it could use the said evidence as substantive
2 S.C.R. SUPREME COURT REPORTS
895
one under s. 288 of the Code.
The Legislature, in its
1960
":isdom, presun;iably thought that undue delay in the Shrira,;:;: Others
disposal of sessions cases was due to the elaborate and
v.
prolonged committal proceedings and stepped in to
The State of
amend the Code in that respect. The whole of s. 207A
Bombay
has been inserted by Act XXVI of 1955. While the
section simplified the procedure in regard to commitSubba Rao J.
ment proceedings instituted on a police report, it
confined the existing procedure to proceedings initiated otherwise than on a police report. This distinction between the two classes of cases had a reasonable
factual basis. In the case of a police report, a thorough
inquiry would have been made and the investigating
officer would have sent a report to the Magistra.te
under s. 173 of the Code. The amended s. 173 of the
Code also enjoins on the officer in charge of the police
station a duty to furnish before trial, free of cost, to the
accused copies of the report forwarded under that
section to the Magistrate, the ]'irst Information
Report recorded under s. 154 and all other documents
or relevant extracts thereof on which the prosecution
proposes to rely, including the statements, if any,
recorded under s. 164 of the Code and those recorded
under sub-s. (3) of s. 161 and a list of witnesses whom
the prosecution proposes to examine as its witnesses.
The Magistrate in a proceeding instituted on police report would ordinarily be in a position, on the said material, to understand ~he case of the prosecution and know
the nature of the evidence that would be adduced on
the basis of which the accused is sought to be proceeded against. The accused also would have an opportu-
. nity to know beforehand the case he would have to
meet and the evidence that would be adduced against
him. But in a proceeding instituted otherwise than
on a police report, no such material would be available and therefore the old procedure continued to
apply to such a case. With this background let us
look at the provisions of s. 207 A of the Code. The
relevant provisions of s. 207 A of the Code may now
be read:
Section 207 A: (I) When, in any proceeding instituted on a police report, the Magistrate receives the
896
SUPREME COURT REPORTS
[1961]
z96o
report forwarded under section 173, h.e shall, for the
. -
0
purpose of holding an inquiry under this section, fix
Shriram .s.
/hers a date which shall be a date not later than fourteen
Th• s;~,. of
days ,from the date of the receipt of the report, unless
Bombay
the Magistrate, for reasons to be recorded, fixes any
later date.
Subba Rao J.
(2) If, at any time before such date, the officer
conducting the prosecution applies to the Magistrate to
issue a pr<;>cess to compel the attendance of any witness or the production of any document or thing, the
Magistrate shall issue such process unless, for reasons
to be recorded, he deems it unnecessary to do so.
(3) At the commencement of the inquiry, the
Magistrate shall, when the accused appears or is
brought before him, satisfy himself that the documents referred to in section 173 have been furnished
to the accused and if he finds that the accused has
not been furnished with such documents or any of
them, he shall cause the same to be so furnished.
(4) The Magistrate shall then proceed to take the
evidence of s.uch persons, if any, as may be produced
by the prosecution as witnesses to the actual commission of the offence alleged, and 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.
(5) The accused shall be at liberty to cross-examine the witnesses examined under sub-section (4),
and in such case, the prosecutor may re-examine
them.
(6) 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 a~d given t~e prosecution and the accused an opportumty of bemg 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
2 S.C.R. SUPREME COURT REPORTS
897
that such person should be tried before himself or
r96o
some other Magistrate, in which case he shall proceed Sh .
0 h
d. 1
"ram &
t ers
acccor mg y.
v.
(7) When, upon such evidence being taken, such
The state of
dopuments being considered, such examination (if any)
Bombay
being made and the prosecution and the accused being
given an opportunity of being heard, the Magistrate Subba Rao J.
is of opinion that the accused. should be committed
for trial, he shall frame a cha'.rge under his hand,
declaring with what offence the accused is charged.
On the interpretation of sub-s. (4), which is the
main sub-section under scrutiny in the present case,
the High Courts in India. have expressed conflicting
views. It would not be necessary to consider the
said decisions in detail, but it would be enough if we
state the conflicting views, which are as follow: (1)
Under sub-s. (4) the prosecution is bound to examine
all the eye-witnesses indicated in the police report,
and the discretion of the Magistrate to examine witnesses under the second part of the said sub-section is
only in respect of witnesses other than the eye-witnesses: vide M. Pavalappa v. State of Mysore (1), State
v. Anadi Betankar (9), Gkisa v. State (3) and Ohandu
Satyanarayana v. The State('). (2) The Magistrate's
power to examine eye-witnesses under the first part
of sub-s. (4) is confintid only to such witnesses as are
produced in court by the officer conducting the prosecution and if he has not produced any such witnesses,
the Magistrate cannot examine any eye-witnesses
under the second part of the said sub-section, for,
according to this view, the second part deals with
only witnesses other than eye-witnesses. (3) If the
prosecution has not produced any eye-witnesses the
court may not in its discretion examine any witness
under the second part, but can, if satisfied, discharge
or commit the accused to sessions on the basis of the
documents referred. to in s. 173 of the Code : vide
State v. Lakshmi Narain (5), State of U. P. v. Satyavir (6). (4) The first part confers a power on a Magi~
trate only to examine the eye-witnesses produced, but
(1) A.I.R. 1957 Mysore 61.
(2} A.I. R. 1958 Orissa 241.
(3) A.I.R. 1959 Raj. 294.
(4) ALR. 1959 A.P. 651 •
. (51 A.I.R. 1g6o All 237.
(6) A.I.R. 1959 All. 408.
898
SUPREME COURT REPORTS
[1961)
1960
the second part empowers him to examine any witness
-
other than those produced, whether eye-witnesses or
Shriram "' othm not, and in a case where the prosecution failed to disTlte 5~~ 1, of
charge its duty to produce any witnesses or any
Bombay
important eye-witnesses, the court would not be exercising its judicial discretion if it commits the accused
Subba Rao J • to sessions on the basis of documents referred to
under s. 173 of the Cope without examining at least
the important witness~s: vide State v. Yasin (1), In re
Pedda Amma Muttigadu ('), A. Ishaque v. The State(')
and Manik Chand v. The State('). We have gone
through the judgments of the High Courts cited at
the Bar and derived considerable assistance from
them for deciding the question raised. But as the
question is to be primarily decided on the interpretation of the relevant provisions, we think, without any
disrespect to the learned Judges, that it is not necessary to consider the said decisions in detail.
Now let us look at the relevant provisions of
s. 207 A of the Code to ascertain its intendment. Subs. (4) is the most important section vis-a-vis the taking
of evidence. It is in two parts, the first part provides
for the examination of witnesses produced by the prosecution and the second part for the examination of
other witnesses. One of the fundamental rules of
interpretation is that if the words of a statute are in
themselves precise and unambig~ous "no more is
necessary than to expound those words in their natural
and ordinary sense, the words themselves in such
case best declaring the intention of the legislature".
The first part of the sub-sectjon reads : "The Magistrate shall then proceed to take the evidence of such
persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the
offence alleged." The word "shall" imposes a peremptory duty on the Magistrate to take the evidence ;
but the nature of the said evidence is clearly defined
thereafter.
'.1,'he clause "as may be produced by the
prosecution as witnesses to the actual commission of
the offence alleged" governs the words "such persons";
(1) A.LR. 1958 All. 861.
(z)·A.I.R. 1959 A.P. 469.
13) A.J.R. 1958 Cal. 341.
(4) A.I.R. 19s8 Cal 324.
' •
2 S.C.R. SUPREME COURT REPORTS
899
with the result that the duty of the Magistrate to
x960
take evidence is only confined to the witnesses pro-
-
duced by the prosecution. Learned counsel for the Shriram tS- Others
appellants contends that it could not have been the
The s~~te of
intention of the Legislature to permit the prosecution
Bombay
to keep back the eye-witnesses in the committal court
and therefore the word "pr-0duced" should be rea.d as Subba Rao J.
"cited". To accept this interpretation is to substitute
the word "cited" in place of the word "produced":
such a construction is not permissible, especially,
when the plain meaning of the word used by the
Legislature is clear and unambiguous, and the acceptance of that meaning does not make the section
otiose. The phrase "if any" between the words "such
persons" and the aforesaid clause emphasizes that the
prosecution may not produce any such persons, in
which case the obligation to examine such witnesses
cannot arise. The wording of the second part of the
sub-section is also without any ambiguity and it
reads: "and 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." No
doubt the word "may" in the clause "he may take
evidence" imposes a duty upon the Magistrate to take
other evidence; but that duty can arise only if he is of
opinion that it is necessary in the. interests of justice
to take the evidence. The fulfilment of the condition
that gives rise to the duty is left to the discretion of
the Magistrate. The duty to take evidence arises only
if he is of the requisite opinion. Doubtless the discretion being a judicial one, it should be exercised
reasonably by the Magistrate. If he exercises it perversely, it may be liable to be set aside by a superior
court. If so, what do the words "other witnesses"
mean? Do they mean witnesses other than eye~witnesses or witnesses, eye-witnesses or not, other than those
produced before the Magistrate by the prosecution?
The witnesses who will depose to the prosecution'case
may be of different categories, namely, (i) ~itnesses
who are eye-witnesses to the actual commis!liOn of the
offence alleged; (ii) witnesses who speak to the 'facts
900
SUPREME COURT REPORTS
[1961)
z96•
which afford a motive for the commission of the
Shriram & Others offence; (iii) witnesses who speak to the investigation
v.
and to the facts unfurled by the investigation; and
The State of
(iv) witnesses who speak to the circumstances and
Bombay
facts probablizing the commission of the offence,
which is technically described as substantive ev.:iSubba Rao f. dence. Sub-section (4) enjoins on the Magistrate a duty
to examine the first category of witnesses produced by
the prosecution. The word "actual" qualifying the
word "commission" emphasizes the fact that the said
witnesses should be those who have seen the commission of the offence. We have held in interpreting the
first part that the Magistrate should examine only
such witnesses who are produced before him by the
prosecution; but there may not be eye-witnesses in a
case, or, if there are, the prosecution may not have
produced all of them before the Magistrate. The
second part of the sub-section therefore confers a
discretionary power on the Magistrate to examine any
one or more of witnesses of all categories, including the
eye-witnesses who have not been produced by the
prosecution within the meaning of the first part of the
said sub-section. But it is said that sub-ss. (6) and (7)
indicate that taking of evidence by the Magistrate is
a condition precedent for making an order of discharge or of committal and, therefore, the provisions of
sub-s. (4) must be so construed as to impose a duty on
the Magistrate to examine some witnesses. Firstly,
we cannot hold that the sub-sections impose any such
condition. The argument is that the clause in subs. (6), namely, "When the evidence referred to in subsection ( 4) has been taken" is a condition precedent
for making an order of discharge. The adverb "when"
in the clause in the context denotes a point of time
and not a condition precedent. The clause means
nothing more than that an order of discharge can be
made under sub-s. (6) after the events mentioned
therein have taken place. Secondly, the two clauses
necessarily refer to the corresponding or appropriate
situations under the earlier sub-sections. The first
clause wi11 not come into play if the Magistrate has
not taken any evidenoe. So too, in sub-s. (7) also the
-•
2 S.C.R. SUPREME COURT REPORTS
901
adverb ''when" denotes the time when the Magistrate
z95o
can make the order of committal. If evidence has Shriram .s. Others
not been taken, that sub-.section is not applicable and
v.
the Magistrate proceeds to make an order of commitThe Stale of
tal on other material referred to in the sub-section.
Bombay
On the other hand, if the said two sub-sectiqns are
l!
Subba Rao f•
construed as imposing a condition precedent ior making an order of discharge or commitment, as the case
may be, the said two sub-sections will directly come
into conflict with the provisions of sub-s. (4). When
one sub-section clearly confers a discretion on the
Magistrate to take or not to take evidence, the other
sub-sections take it away. It is not permissible to
create conflict by construction, when by an alternative
construction all the three sub-sections can be harmonized and reconciled. If the construction ' suggested
by learned counsel for the appellants be adopted, it
would also lead to an anomaly in that the Magistrate,
though the documents referred to in s. 173 clearly
pronounce the innocence of the accused, has to go
through the pretence of examining one or more witnesses to satisfy the provisions of the sub-section.
Reliance is placed upon s. 251A of the Code relating to warrant cases whereunder the ~gistrate. is
authorized, upon consideration of all the documents
referred to in s . .173 and upon making such examination of the accused as the Magistrate. thinks necessary
and after giving the prosecution and the accused an
opportunity of being heard, to discharge the accused,
if he considers the charge against the. accused to be
groundless; but if he is of opinion that there is
ground that the accused has committed an offence
alleged against him, he shall frame in writing a charge
against the accused. By contrasting this provision
with s. 207 A, it is contended that if the const~uction
put forward by learned counsel is not accepted, the obvious difference between the two procedures indicated
by the Legislature would be obliterated. We cannot
agree with this contention. T4e difference between
the two procedures is that, in a. case covered by
s. 207A, evidence will have to be ta.ken under certain
902
SUPREME COURT REPORTS
(1961]
r960
contingencies, whereas under s. 251A no evidence
. . -
need be taken at all. That distinguishes the different
Shmam &- Others procedures under the two sections and it is not the
The .;;.,,of
province of the court to add any further conditions or
Bombay
limitations to those provided by the Legislature.
We are fortified in our view by a decision of this
Subba Rao J. Court in Macherla Hanumantha Rao v. The State of
Andhra Pradesh('). There the point in controversy
was whether ss. 207 and 207 A, inserted in the Code by
the Amending Act XXVI of 1955, violated the provisions of Art. 14. of the Constitution. In support of
the contention that they violated Art. 14 of the Constitution, it was sought to be made out that the
provisions of s. 207 A of the Code, in comparison
and contrast with other provisions of Ch. XVIII
of the Code, prescribed a Jess advantageous position
for the accused persons in a proceeding started
under a police report than the procedure prescribed in other cases in the succeeding provisions of that
chapter. This Court held that there was a reasonable classification to support the difference in the procedures. Sinha J., as he then was, who spoke for the
Court, in order to meet the argument based on ·discrimination, considered the scope of the new section. In
doing so, the learned Judge observed thus at p. 403:
"The magistrate then has to record the evidence
of such witnesses as figure as eye-witnesses to the
occurrence, and are produced before him. He has
also the power, in the interest of justice, to record such
other evidence of the prosecution as he may think
necessary, but he is not obliged to record any evidence.
Without recording any evidence but after considering
all the documents referred to in s. 173 and after examining the accused person and after hearing the parties, it is open to the magistrate to discharge the
accused person after recording his reasons that no
ground for committing the accused for trial has been
made out, unless he decides to try the accused himself
or to send him for trial by another magistrate. If, on
the other hand, he finds that the accused should be
committed ior trial, he is required to frame a charge
(1> [19ss1 s.c.R. 396.
.
)!
2 S.C.R. SUPREME COURT REPORTS
903
disclosing the offence with which the accused is
r96o
charged."
.
Shriram & Others
Then the learned Judge proceeded to consider the scope
v.
of s. 208 of the Code. After having found that there
The State of_ __ _
was obvious difference in the procedure, the learned
Bombay
Judge came to the conclusion that "the Legislature has
Subba Rao .f.
provided for a clear classification between the two
kinds of proceedings at the commitment stage based
upon a very relevant consideration, namely, whether or
not there has been a previous inquiry by a responsible
public servant whose duty it is to discover crime and
to bring criminals to speedy justice". It will thus be
seen that the observations of the learned Judge at
p. 403 cannot be said to be obiter, as learned counsel
asks us to bold, for the construction of the provisions
of s. 207 A was necessary to ascertain whether there
was reasonable classification or not. Assuming that
the said observations are obiter, even then, they record
the considered opinion of five learned Judges of this
Court. The view we ha.:ve expressed also is consistent
with the said observations.
Our view could now be expressed in the following
propositions: (1) In a proceeding instituted on a police
report, the Magistrate is bound to take evidence of
only such eye-witnesses as are actually produced by
the prosecution in court. (2) The Magistrate, if he is
of opinion that it is in the interest of justice to take
evidence, whether of eye-witnesses or others, he has a
duty to do so. (3) If the Magistrate fa not of that
opinion and if the prosecution has not examined any
eye-witnesses, he has jurisdiction to discharge or commit the accused to sessions· on the basis of the documents referred to ins. 173 of the Code. (4) The discretion of the Magistrate under sub-s. (4) is a judicial
discretion and, therefore, in appropriate cases the
order of discharge or committal, as the case may be,
is liable to be set aside by a superior court.
Before closing we would like to make some observations. Rarely we come across cases where the prosecution does not examine important eye-witnesses, for
such a procedure would entail the danger of the said
witnesses being tampered with by the accused, with
904
SUPREME COURT REPORTS
[1961]
1960
the result that there will not be any evidence ta.ken
Sh .
-.;: Oth
by the committing Magistrate which could be used as
mam v.
"'substantive evidence under s. 288 of the Code. Even
The state of if the prosecution takes that risk, the Magistrate shall
Bombay
exercise a sound judicial discretion under the second
part of sub-s. (4) of s. 207A in forming the opinion
Suhba Rao J. whether witnesses should be examined or not, and .
any perverse exercise of that discretion can always be
rectified by a superior court. But there may be a. case
where the Magistrate can make up his mind definitely
on the documents referred to in s. 173 without the a.id
of any oral evidence and in that event he would be
within his rights to discharge or commit the accused,
as the case may be. In this view, it is not necessary
to express our opinion whether even if the Magistrate
acted illegally in committing an accused without taking any evidence, the said illegality is cured either by
x960
December 5.
s. 537 of the Code or any other section thereof.
In the result, the appeals fa.ii and a.re dismissed.
Appoola dismisse,d.
M/s. RAMNARAIN SONS (Pr.) LTD.
v.
COMMISSIONER OF INCOME TAX, BOMBAY
(J. L. KAFUR, M. lI:IDAYATULLAH and
J. c. SHAH, JJ.)
lncom. Tax-Assessment-Purchase of shares for acquiring
managing agency rights-Loss incurred in sale of such shares-If of
a capital nature.
The appellants, a private limited company, carrying on
business as brokers, managing agents and dealers in shares and
securities and having as one of their objects the acquisition of
managing agencies, purchased shares of the Dawn Mills at a
rate much higher than the market rate for obtaining the controlling voting right and thereby acquired the managing agency
of the Mills. Later on, they sold some of those shares and
suffered a loss of Rs. 1,78,438. The Income-tax Officer in assessing the taxable income disallowed the loss and the Appellate