# THE SUPREME COURT REPORTS STATE OF WEST BENGAL v. TULSIDAS l'vfUNDHRA

- **Citation:** [1963] Supp. 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1961-11-30
- **Case number:** Criminal Appeal No. 88 of 1962
- **Bench:** P. B. Gajendragadkar, K. c. DAS GUPTA, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-supreme-court-reports-state-of-west-bengal-v-tulsidas-l-vfundhra-2704
- **Pages:** 12

## Headnote

Criminal Procedure-Proceeding on Police report-Accused
if entitled to lead evidence-Power of court to examine person as
court witness-Magistrate, if bound to exam-ine accused r>ersonGode of Criminal Procedure, 18.98(Act V of 18.98), ss. 207A, MO.
Although an accused person is not entitled to lead evidence
in his defence in a proceeding under s. 207 A of the Code of
(~riminal Procedure, that does not affect the wide powers a
Criminal Court has under s. 540 o:f the (:ode to summon and
examine persons as court witnesses where it considers such exa·
mination essential for a just decision of the case.
Section 540
of the Code is wide enough to include a proceeding under
s. 207 A of the Code and its operation is not excluded by the
scheme of s. 207 A of the Code.
Arunachalam Swami v. State of Bombay, A.I.R. 1956 Bom.
695 referred to.
Sub-section (6) of s. 207A of the Code does not make
it incumbent on the Magistrate to examine an accused person
unless he thinks it necessary to do so.
Consequently, in the present case, where the Magistrate
in a proceeding under s. 207 A of the Code rejected the application of the accused persons for examination of witnesses in
defence not because he had no power under s. 540 of the Code
to do so but on the gr,•und that the application was vexatious
and was intended to delay the proceeding and the High Court
in revision on ·an erroneous view of the Magistrate's order set
it aside and directed examination of the accused person under
s. 342 of the Code.
Hekl, that the order of the High Court must be set aside.
1962
&pumber 11.
1962
Stau of West
Bengal
v.
Tulsidas Mundhra
2
SUPREME COURT REPORTS [1963] SUPP.

## Text

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THE SUPREME COURT REPORTS
STATE OF WEST BENGAL
v.
TULSIDAS l'vfUNDHRA
(P. B. GAJENDRAGADKAR, K. c. DAS GUPTA AND
J. R. MUDHOLKAR, .JJ.)
Criminal Procedure-Proceeding on Police report-Accused
if entitled to lead evidence-Power of court to examine person as
court witness-Magistrate, if bound to exam-ine accused r>ersonGode of Criminal Procedure, 18.98(Act V of 18.98), ss. 207A, MO.
Although an accused person is not entitled to lead evidence
in his defence in a proceeding under s. 207 A of the Code of
(~riminal Procedure, that does not affect the wide powers a
Criminal Court has under s. 540 o:f the (:ode to summon and
examine persons as court witnesses where it considers such exa·
mination essential for a just decision of the case.
Section 540
of the Code is wide enough to include a proceeding under
s. 207 A of the Code and its operation is not excluded by the
scheme of s. 207 A of the Code.
Arunachalam Swami v. State of Bombay, A.I.R. 1956 Bom.
695 referred to.
Sub-section (6) of s. 207A of the Code does not make
it incumbent on the Magistrate to examine an accused person
unless he thinks it necessary to do so.
Consequently, in the present case, where the Magistrate
in a proceeding under s. 207 A of the Code rejected the application of the accused persons for examination of witnesses in
defence not because he had no power under s. 540 of the Code
to do so but on the gr,•und that the application was vexatious
and was intended to delay the proceeding and the High Court
in revision on ·an erroneous view of the Magistrate's order set
it aside and directed examination of the accused person under
s. 342 of the Code.
Hekl, that the order of the High Court must be set aside.
1962
&pumber 11.
1962
Stau of West
Bengal
v.
Tulsidas Mundhra
2
SUPREME COURT REPORTS [1963] SUPP.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 88 of 1962.
Appeal by special leave from the judgment and
order dated November 30, 1961, of the Calcutta High
Court in Cr. R. No. 1117 of 1961.
D. R. Prern, R. N. Sachthey and R. Ii. Dhebar,
for the appellant.
\
A. S. R. Chari,
Ravinder
Narain, J. B.
Dadachanji and 0. 0. Mathur, for the respondent.
1962. September 11.
The Judgment of the
Court was delivered by
Cl•jendragadkar, J.
GAJENDRAGADKAR, ].-The principal point
which the appellant, the State of West Bengal, !,as
raised for our decision in the present appeal, is whether the provisions of section 540 of the Code of
Criminal Procedure apply to a case tried by the
Magistrate under section 207 A of the Code. That
question arises in this way. On the 7th July, 1960,
a charge-sheet was submitted under s. 173 of the
Code by Inspector Bhuromal of the Special Police
Establishment, New Delhi, in the Court of the Chief
Presidency 'Magistrate, Calcutta, against Hari Das
Mundhra, accused No. 1, and the respondent Tulsidas
Mundhra, accused No. 2, under section 120B/409 and
sections 409 and 477-A of the Indian Penal Code.
On the 5th August, 1960, both the accused persons
appeared before the learned Chief Presidency Magistrate and furnished bail.
Thereafter, the case was
transferred to M. Roy, the Presidency Magistrate 5th
Court for further proceedings.
•
On the 10th October, 1960, copies of the documents were furnished to the accused persons, and
since the record was voluminous, the hearing of the
case was. adjourned to the 7th December, 1960.
On
the 1st March, 1961, parties were heard and in view
of the nature of the offences and the amounts involved,
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I S.C.R.
SUPREME COURT REPORTS
3
the
Magistrate took the
view that the proper
course to follow would be to adopt the commitment
proceedings as laid down in s. 207 A of the Code.
Subsequently, the procedure prescribed by the said
section was followed.
It appears that accused No. 1
who had in the meanwhile been convicted in another
case was undergoing a sentence of imprisonment in
the District Jail at Kanpur and so, he could not be
produced before the Magistrate until the 7th July,
1961. That is why the case had to be adjourned on
some occasions and effective hearings did not make a
material progress until the 7th July.
On the 6th July, 1961, the respondent filed a
petition before the Magistrate alleging that amongst
the documentary evidence sought to be relied upon
against him by the prosecution were included three
cheques and the prosecution case was that the writing
on the cheques was in the handwriting of the respondent. The respondent disputed this allegation and
prayed that he should be allowed au opportunity to
examine defence witnesses to prove that the impugned handwriting was not his.
Ory the 7th July, 1961, when the case was taken
up for hearing before the Magistrate, he first considered the application made by the respondent to call
defence witnesses and on the merits, he rejected the
said application.
Then he proceeded to make an
order of commitment.
In rejecting the application
of the respondent for examining defence witnesses the
Magistrate took into account the fact that the application. had been deliberately made at a very late
stage m order to prolong the proceedings in his Court
and so, ~hat was one reason why he thought that an
unconsc10usably delayed petition which had been
made solely with the object of gainiug time should
not be. grante?. He also held that the application
was m1sconce1ved. It was urged before the Magistrate
that he could examine the said witnesses and in
support of this argument, reliance was placed on a
1962
State of H'eJt
Bengal
v.
Tulsidas Afundhra
Gajrndragadkar, J.
1962
State of T1fest
&ngal
v.
TulsidaJ Mumlhra
Gajendragadkar, J.
4
SUPREME COURT REPORTS [1963] SUPP.
decision of the Bombay High Court in. the case of
Arunachalam
Swami
v. SU!te of Bomhay
(1).
The learned Magistrate took the view that the said
decision was distinguishable on facts. Whilst the
learned Magistrate was delivering this order, an application was made before him that the respondent
wanted to move the higher Court for a transfer of the
case, and though the learned Magistrate felt that this
application also was intended merely to prolong the
proceedings in his Court, he adjourned the case because under s. 526(8) it was obligatory on him to do
so. That is why he adjourned the hearing of the
case to the 20th July, 1961, for passing the remaining
portion of the final order in case the respondent failed
to obtain from the higher Court the necessary order
of transfer.
This order was challenged by the respondent by
moving the Calcutta High Court in its criminal revisional jurisdiction. The High Court took the view
that s. 540 applied to cases tried under s. 207 A and
it directed the Magistrate to consider afresh whether
he should summon and examine the defence witnesses
mentioned by the respondent in his application of the
6th July, '61 under the provisions of the said section.
Incidentally, the High Court also observed that the
accused persons had not been examined under s.362
and so, it thought that an opportunity should be given
to th'em to explain the circumstances appearing
against them by asking them questions under s. 342.
This observation was made even though the High
Court did not think it necessary to decide the general
question whether in a commitment enquiry, examination of the accused under s.342 is compulsory or not.
In the result, the order passed by the Magistrate on
the 7th July, 1961, was set aside and the matter was
sent back to his Court for disposal in accordance with
law.
It is against this order that the app~Ilant has
come to this Court by special leave and on its behalf
11) A. I. R. 1956 Bom. 695.
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1 S.C.R.
SUPREME COURT REPORTS
5
l\fr. Prem has contended that the High Court was in
error in holding that s. 540 of the Code applied to
proceedings under s. 207 A. In the alternative, he has
argued that the Magistrate had himself considered the
question as to whether the witnesses
should be
examined in the light of his powers under s. 540 and
so, even if his first point failed, he was entitled to
contend that the High Court was not justified in
sending the case back to the Magistrate. There is
no .Point, he argues, in asking the Magistrate to
consider the question once again.
There is no doubt that the new provisions
under s.207 A have been introduced for the purpose of
expediting the commitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the Court of Session or High Court.
Section 206, inter alfo, confers powers on the Magistrates specified in the section to commit any person
for trial to the Court of Session or High Court for
any offence triable by such Court. Under s.207, it
is provided that in regard to a case which is triable
exclusively by a Court of Session or High Court, or
which, in the opinion of the Magistrate, ought to be
tried by such Court, the Magistrate shall : (a) in any
proceeding instituted on a Police report follow the
procedure specified in s.207 A; and (b) in any other
proceeding, follow the procedure specified in the
other provisions of this Chapter. Thus, s. 207 A is
applicable to proceedings in respect of offences which
are exclusively triable hy the Court of Session or
High Court, or which, in the opinion of the Magistrate, ought to be tried bv such Court. This section
consists of 16 sub-sections which, in a sense, constitute
a self-contained Code which has to be followed in
dealing with cases under the said section. Sub-section (2) authorises the l\fagistratc to issue a process
to compel the attendance of anv witness or the
pro~uction of any _document or thing. Under subsection (3), the Mag1st(ate has to satisfy himself that
1!162
S~ate of fVcst
Bengal
v.
Tu!Jida5
-~lundhra
1962
State of West
Bengal
v.
Tulsidas A1undhra
Gajendragadkar, J.
6
SUPREME COURT REPORTS [1963] SUPP.
the documents referred to in section 173 have been
furnished to the accused and if they are not so furnished, he has to cause the same to be so furnished.
Sub-section ( 4) then deals with the stage where the
Magistrate proceeds to take evidence of such perons,
if any, as may be produced by the prosecution as
witnesses to the actual commission of the offence
alleged, and
it adds that if the Magistrate is
of opinion that it is necessary in the
interests
of justice to take the evidence of any one or more
of the other witnesses for the prosecution, he may take
such evidence also.
By sub-section (5), the accused
is given
liberty to cross-examine
the witnesses
examined under sub-section (4). Sub-section (6) then
Iavs down that if evidence is recorded under subsection ( 4) and the Magistrate has considered all the
documents referred to in s.173 and has, if necessary,
examined the accused for the purpose of enabling
him to explain any circumstances appearing in the
evidence against him and given the prosecution and
the accused an opportunity of being heard, he shall,
if he is of opinion that such evidence and documents
disclose no grounds for committing the accused
person for trial, record his reasons and discharge him,
unless he thinks that such person should be tried
before himself or some other Magistrate, in which
case he shall proceed accordingly.
Sub-section (7)
deals with a case where on considering the evidence
and the documents produced and after giving opportunity to the prosecution and the accused to be heard,
the Magistrate is of opinion that the accused should
be committed for trial, "he shall frame a charge
under his hand, declaring with what offence the
accused is charged". Sub-section (8) then lays down
that as soon as the charge has been framed, it shall
be read and explained to the accused and a copy
thereof given to him free of cost. Under sub-section
(9), the accused shall be required at once to give in,
orally or in writing, a list of the persons, if any,
whom he wishes to be summoned to give evidence on
1
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1 S.C.R.
SUPREME COURT REPORTS
7
his trial. There is a proviso to this sub-section which
entitles the Magistrate in his discretion to allow such
list to be given later, but we are not concerned with
that proviso in the present appeal. The rest of the
clauses are not relevant for our purpose.
It will thus be seen that before the Magistrate
decides either to discharge the accused person, or to
direct that he should he tried by himself or by any
other Magistrate, or to commit him to the Court of
Session or High Court, he has to consider the evidence recorded before him under sub-section (4) and
the documents referred to in s. 173. It is open to
him to examine the accused person also if he thinks
it necessary to do so for the purpose of enabling him
to explain circumstances appearing against him in the
evidence.
He has, of course, to hear the prosecution
and the accused person before making the order. The
scheme of s. 207 A thus does not appear to provide
for a defence witness to be examined before an order
is passed either under sub-section (6) or sub-section(7),
and that may be because it was thought by the Legislature that in dealing with criminal cases instituted on
a police report, it may ordinarily not be necessary to
prolong the enquiry by allowing the accused person to
lead evidence in defence and so, no provision in that
behalf has been made. Even the examination of the
accused person has been left to the discretion of the
Magistrate under sub-section (6). Sub-section (7) also
shows that the examination of the accused person is
in the discretion of the Magistrate.
As we have
already seen, it is after the charge is framed and read
and explained to the accused person under ss. (8) that
the stage is reached for him to give in a list of persons
whom he wants to examine under ss.(9).
This position shows a striking contrast to the relevant provisions of s. 208. Section 208 deals with cases
where proceedings are instituted otherwise than on a
police report, and it provides that when the accused
1962
Statr of IYest
Bengal
v.
Tulsidas Mundhrrz
GaJtndragadkar, J.
1962
State of West
Bengal
v.
1Ul;idas Mundkra
Gajendragadkar, J.
8
SUPREME COURT REPORTS [Hl63] SUPP.
person is brought before the Magistrate, he shall
proceed to hear the complainant, if any, and take all
such evidence as may be produced in support of the
prosecution or on behalf of the accused, or as may be
called for by the Magistrate. Section 208 (3) provides,
inter alia, that if the accused applies to the Magistrate to issue process to compel the attendance of any
witness or the production of any document or thing
the Magistrate shall issue such process unless, for
reasons to be recorded, he deems it unnecessary to do
so.
In other words, in regard to the proceedings tried
under s. 208, an accused person is entitled to lead
evidence in defence and the Magistrate is bound to
allow such evidence to be led, except, of course, where
he comes to the conclusion that such evidence need
not be led in which case he has to record his reasons
for coming to that conclusion. When we consider the
relevant provisions of s. 207 A and contrast them
with the corresponding provisions of s. 208, it becomes
clear that an accused person has no right to lead
evidence in defence in proceedings governed
by
s. 207 A, whereas he has a right to call for such
evidence in proceedings governed by section 208.
This position, however, does not affect the question as to whether s. 540 applies even to the proceedings governed bys. 207A. Section 540 gives power
to the Court to summon material witness or examine
a person in attendance, though not summoned as a
witness, or recall and re-examine any person already
examined, and the section specifically provides that
the Court shall summon and examine or recall and
re-examine any such person if his evidence appears to
it essential to the just decision of the case. It would
be noticed that this section confers on criminal courts
very wide powers. It is no doubt for the court to
consider whether its power under this section should
be exercised or not. But if it is satisfied that the
evidence of any person not examined or further evidence of any person already examined is essential to
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1 S.C.R.
SUPREME COURT REPORTS
9
the just decision of the case, it is its duty to take such
evidence.
The exercise of the power conferred by
s. 540 is conditioned by the requirement that such
exercise would be essential to the just decision of the
case. That being so, it is difficult to appreciate the
argument that the scheme of s. 207 A excludes the
application of s. 5-10 to the proceedings governed by
the former section. It is true that s.:207 A does not
give an accused person a right to lead evidence in
defence, and so, he would not be entitled to make an
application in th;it behalf; but that is very different
from saying that in proceedings under s. 207 A the
Magistrate has no jurisdiction to examine a witness
by exercising his powers under s. 5-10.
The denial to
the accused person of the right to lead evidence in
defence has no material bearing on the question as to
whether the Magistrate can exercise his powers under
s. 5-10.
We do not think that the scheme of the
special provisions contained in s. 207 A legitimately
leads to the inference that the applicability of s. 5-10
is thereby excluded.
Sometimes, if a statute contains
a special or particular provision dealing with a special
or particular case or topic and also includes a general
provision dealing with the said special or particular
topic or case as well as others, the particular or the
special provision excludes the application of the
general provision in respect of the topic or case covered
by the former.
That, however, is not the position in
the present case, because section 207 A suggests, by
necessary implication, for the exclusion of the accused
person's right to lead evidence, whereas s. 540 does
not refer to the right of the accused person or the
prosecution to lead any evidence, but deals with the
court's power to examine witnesses as court witnesses
in the interest of justice. Section 540 in terms applies
at any stage of any enquiry, trial or other proceeding
under this Code. This section is wide enough to
include a proceeding under s. 207 A and so, it would
be unreasonable to contend that the scheme of s.207A
makes section 540 inapplicable to the proceedings
1962
State of Jt'est
Bengal
v.
Tulsidas Afandhra
Gaiendragadkar, J
1962
State of West
Bengal
v.
Tulsidas Mundhra
Gajendragadkar, J.
10
SUPREME COURT REPORTS [1963] SUPP.
governed bys. 207A. The power of the court under
s. 540 can be exercised as much in regard to cases
governed by s. 207 A as in regard to other proceedings
governed by the other relevant provisions of the Code.
Therefore, we are satisfied that Mr. Prem is not
justified in arguing that the Magistrate had no jurisdiction to examine witnesses as court witnesses even if
he had held that the examination of such
witnesses
would be essential to the just decision of the case.
The alternative argument urged by Mr. Prem
still remains to be considered. The High Court
seems to have thought that in rejecting the application
of the respondent for examining defence witnesses,
the Magistrate took the view that he had no power to
do so in the present proceedings because his jurisdiction was circumscribed by the provisions of s. 207 A.
That appears to he the sole basis of the decision of
the High Court in reversing the order of the
Magistrate and sending the proceedings back to his
court. In our opinion, the High Court was in error
in assuming that the Magistrate had not considered
the question on the basis of the applicability of s. 540.
In fact, as we have already pointed out, when the
•
Magistrate's attention was drawn to the decision of
'
the Bombay High Court in the case of Arunachalam,
Swami(') he observed that the case
was
distinguishable on facts; he did not say that the case was
irrelevant because s.540 was inapplicable to the
proceedings before him. If he had taken the view
that s.540 did not apply at all, the
~vFagistrate
would obviously have said that the Bombay decision
had no relevance. The reason given by the Magistrate
•
that the case was distinguishable on facts postulates
that s.540 was applicable, but in his opinion, the
particular decision was of no assistance to the respondent, having regard to the difference of facts between
the case before the Magistrate and the Bombay case.
Therefore, the order passed by the Magistrate cannot
be successfully challenged on the ground that the
(I) A.I.R. I956Bom.695.
)
1 S.C.R.
SUPREME COURT REPORTS
11
Magistrate did not consider the question under s. 540
of the Code.
It appears
from the order passed by the
learned Magistrate that
he took the view that
having regard to the voluminous evidence adduced
by the prosecution, there was no substance in the
allegation of the respondent that the evidence of the
witnesses whom he proposed to examine was material
or would be decisive.
He has observed that the
decumentary evidence adduced by the prosecution
was voluminous and it clearly showed a prirnll f acie
case against both the accused persons. · In that connection, he has also commented on the conduct of
the respondent. The photostat copies of the disputed
cheques had been given to both the accused persons
nearly nine months before the 6th July, 1961.
Arguments in respect of these documents were urged before
the Magistrate nearly two months before the said
date.
At no stage was it ever suggested to the
Magistrate that the respondent wanted to lead evidence to show that the writing~ on the cheques were not
in his handwriting and that the said fact, if proved
would materially affect the prosecution case. The
conclusion of the Magistrate was that the application
made by the respondent was vexatious and so, was
intended merely to delay the proceedings in his court.
In view of the. reasons given by the learned Magistrate
in rejecting the application of the respondent, it is
very difficult to sustain the view taken by the High
Court that the Magistrate was inclined to hold that
s.540 did not apply to the proceedings in the present
case.
The High Court has also referred to the fact
that the accused persons have not been examined
under s.342 of the Code, and it has apparently asked
the M.a~istrate ~o examine .the .accused persons under
that sect10n, without conindenng the question as to
whether it was necessary that the Magistrate should
1962
State of West
Bengal
v.
Tulsidas Mundhra
Gajendragadkar, J.
1962
State of 11'esl
Bengal
v.
Tulsidas Mundhra
Gajendragadkar, J,
12
SUPREME COURT REPORTS [1963]SUPP.
examine them at this stage. We have already referred
to the relevant provisions of s.207 A (6).
Sub-section
(6) provides that the Magistrate can examine the
accused if he thinks it necessary to do so.
Besides,.
even according to the judgment of the High Court,
the failure to examine the accused persons under
s.342 did not amount to a material irregularity and
could not by itself, therefore, justify the reversal of
the order passed by the learned Magistrate.
The result is, the appeal is allowed, the order
passed by the High Court is set aside and that passed
by the learned Magistrate on the 7th July, 1961, is
restored. It is to be regretted that the proceedings
taken by the respondent in the High Court and those
taken by the appellant after the decision of the High
Court have added to the length of the life of this
criminal case; and so, it is desirable that the Magistrate
should proceed to pronounce his final orders as expeditiously as possible and the case should thereafter be
tried by the Court of Session without unnecessary
delay.
Appeal allowed.
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