Ishan Chandra Samanta v. Hridoy Krishna Bose Opposite Party.

The dissentient Judgments of Suhrawardy and Cuming, JJ., were as follows:—

Suhrawardy, J.:— I have the misfortune to differ from my learned brother in the interpretation of sec. 360, Cr. P. Code and its applicability to proceedings under Chap. XII of the Code. Sec. 356 provides that in all trials and in enquiries under Chaps. XII and XVIII the evidence of each witness shall be taken down in writing in the language of the Court. Sec. 360 says that as the evidence of each witness taken under sec. 356 is completed it shall be read over to him in the presence of the “accused” or his pleader. No exception is made in the section in the case of proceedings under Chap. XII which could easily have been made if the legislature intended to exclude them bus it is argued that the use of the word “accused” limits the applicability of sec. 360 to cases where a person is charged with the commission of any offence for which he is liable to be punished, and excludes Chap. XII. The whole controversy therefore hinges on the meaning of the word “accused” which has not been defined in the Code or any other enactment.

There is ample authority for the view that the term “accused” means any person over whom the Criminal Court exercises jurisdiction. See Jhojha Singh v. Queen-Empress(1), Lalit Mohon Maitra v. Surja Kanta Acharjee(2), Hopcroft v. Emperor(3), Queen-Empress v. Mona Puna(4) and Queen-Empress v. Mutusaddi Lal(5). I must demand very cogent reasons to make me deviate from an unchanging current of decisions. I am not impressed by the argument that a witness in a criminal case is a person over whom the Criminal Court assumes jurisdiction as it can summon him and even issue warrant to enforce his attendance. It is not assuming jurisdiction as a Criminal Court but as a Court, in the same way as a Civil Court, doing a guasi-ministerial act, as a preliminary to exercising its criminal jurisdiction over some other person. Nor am I persuaded by the circumstance that there may be more parties than one in a 145 case and all of them should not be called accused or that the order under that section may be passed in the absence of a party. A Criminal Court does pass orders against an absconding accused. The view which my learned brother entertains in this matter has led him to hold in Benod Behari Nath v. Emperor(6), that a person against whom proceedings under Chap. VIII have been taken is not an accused person though he may be punished with imprisonment on failure to give security. I am unable to agree in the view that sec. 360 does not apply to proceedings under Chap. XII and adhere to the decision in Aswini Kumar Dutt v. Puti*(7) to which I was a party. My opinion is that in all criminal cases where evidence is taken down under the provisions of sec. 356, the requirements of sec. 360 must be complied with. Otherwise there is no sense in taking down evidence verbatim or in extenso, as distinguished from a mere memorandum of it, unless its correctness is checked in the manner provided in sec. 360.

The second ground on which this Rule was granted is that the Magistrate should have given some reasons for his decision. Here also I am not in agreement with my learned brother that it is not absolutely necessary for the Magistrate to do so and I follow the decision in the case of Bhuban Chandra Hazra v. Nibaran Chandra Santra(8) to which I was a party. But it is not necessary to pursue this point as I am of opinion that the judgment of the Magistrate does not offend in that respect. Considering the state of the record, the judgment is unassailable on this ground.

It remains now to consider what order I should like to pass in this case. In view of the evidence adduced in the case, I am of opinion that the decision of the Magistrate is correct on the merits. I am also of opinion that though there has been an infringement of the law in defiance of a mandatory provision in this case, my discretion under sec. 439, Cr. P.C, not to interfere with the order of the Magistrate remains unaffected. But considering that in many instances this Court declined to look into the merits on the ground that the entire trial was illegal and that this case raises a point which ought to be settled, for the guidance of the subordinate Courts, I have decided to differ from my learned brother in the result and would make the Rule absolute on the first ground on which it was issued.

As we are unable to agree and divided in opinion the case should be laid before another Judge under sec. 439 read with sec. 429, Cr. P. Code and the papers should be placed before the Chief Justice for necessary orders.

Cuming, J.:— This Rule was granted on two grounds:

(1) That the learned District Judge was wrong in holding that a party to a proceeding under sec. 145, Cr. P.C, was not an accused person within the meaning of sec. 360, Cr. P.C

(2) That the learned District Judge should have held that the judgment of the trial Court was not in accordance with law inasmuch as the findings were not supported by sufficient reasons.

The form of the petition is perhaps open to objection because the Petitioner should not have moved against the order of the District Judge which was simply an order refusing to refer the case to the High Court but against the order of the Magistrate which is really the order we are now asked to revise.

The District Judge, or to be more correct, the Sessions Judge, had no power to deal with the mutter beyond referring it to the High Court.

The Petitioner contends that the evidence of the witnesses was not read over to them as required by the provision of sec. 360 in view of the decision of this Court in the case of Hira Lal Ghosh v. The King-Emperor(9).

Sec. 360 is as follows:—“As the evidence of each witness taken under sec. 356 or 357 is completed it shall be read over to him in the presence of the accused if in attendance or of his pleader if he appears by pleader and shall, if necessary, be corrected.”

The first difficulty that presents itself in applying sec. 360 to proceedings under sec. 145 (Chap. XII of the Code) is that in a proceeding under Chap. XII there is no accused person. There are parties, always two, sometimes more. Each of these parties may consist of many persons. Sometimes there are several hundred persons party to such proceedings. The Petitioner contends that all the parties are accused persons. To support this argument he relies on the case of Jhojha Singh v. Queen-Empress in which it was held that “accused” means “a person over whom the Magistrate or other Court is exercising jurisdiction.” With great respect to the learned Judges the acceptance of this definition would lead to some somewhat startling results. For instance a Magistrate exercises jurisdiction over a witness for he issues a summon to the witness which witness is bound to obey and can enforce his attendance by a warrant. This seems to me to be exercising his jurisdiction over the witness. A witness would be therefore an accused and no oath could be administered to him (sec. 342, Cr. P.C). The same train of reasoning would apply to a juror. Again the parties being accused persons none of them could be examined on oath in the proceedings nor could they be cross-examined. I am not therefore prepared, with great respect to the learned Judges, to accept this definition of an accused. Moreover the learned Judges were deciding in that case the meaning of the term “accused” with regard to the provision of sec. 340 and therefore this definition can only be held good so far as sec. 340 is concerned. If I had to define the term “accused” which the Code has not defined I should define “an accused” as a person charged with an infringement of the law for which he is liable if convicted to be punished. Turning to Chap. XII itself it is significant that the word “accused” is nowhere found in the chapter. The persons concerned are described as parties and the sec. 145(7) even provides for the substitution of the legal representative of a party on his death. I am unaware if any provision of the law by which a legal representative of an “accused” can be substituted on his death. For instance, could the legal representative of a person accused of, say, theft, violence or murder be substituted on his death? In other part of the Code for instance Chaps. XVIII, XIX, XX, XXI, XXII, XXIII, which deal with trials and enquiries preliminary to commitment for trial, the expression “accused” is always used to denote the person proceeded against. In Chap. XII it cannot be strictly said that anyone is proceeded against.

The Magistrate draws up a proceeding stating that he is satisfied that a dispute likely to cause a breach of the peace exists and requires the parties to attend his Court to put in their statement as to their claims and then decides which party is entitled to possession. It is to be noted that the parties are not obliged to attend nor can they be compelled to do so. Admitting for the sake of argument that the expression “accused” applies to the parties in a proceeding under Chap. XII it must presumably apply to all the parties. It cannot be held that one party is complainant and another party accused. The evidence must be read over presumably in the presence of all the accused and so of all the parties. But it sometimes happens that some of the parties are not present and are not represented by a pleader. How could the evidence be read over in their presence? The fact that sec. 356 and sec. 357 are mentioned in sec. 360 does not necessarily show that the section refers to all evidence taken under those sections. Had it been so the legislature would probably have inserted the words “or parties” after the word “accused.” It has been argued that if the reading which I would put on the section is correct no one could be prosecuted for giving false evidence in such proceedings. I fail to see any substance in this objection. The false evidence that a person is prosecuted for giving is the actual statement he makes in Court. The record is only a piece of evidence to prove what statement he did make.

It is argued that sec. 80 of the Evidence Act would not apply to deposition so recorded and not read over. So long as the statement had been taken in accordance with law the presumption of correctness under sec. 80 applies. Sec. 80 is only a rule of evidence and if it did not apply it would still be possible to prove the correctness of the statement recorded by examining the person who heard and recorded it.

Then it has been contended that if the expression “accused” does not include parties sec. 526 has no application to proceedings under sec. 145.

I admit I do not follow this argument. There is nothing in this section which would lead to the conclusion that it applies only to matters in which there is an accused person. Sub-secs. (5) and (6) which are relied on to support this contention simply prescribe the procedure to be followed when an accused person makes the application. But it does not follow from this that no one else can make an application for transfer under this section. Complainants sometimes apply. Even if the contentions were correct this Court would still have the power of transfer under its general power of superintendence.

The conclusion to which I am bound to come is that sec. 360 has no application to proceedings under Chap. XII and in such proceedings it is not obligatory on the Court to read over the deposition to the witnesses. The reason of the distinction from veal criminal enquiries and trials is an obvious one. It has to be borne in mind that these proceedings under Chap. XII are summary proceedings of a quasi-civil nature, the object of them being to prevent breaches of the peace when a dispute about property arises. No right or title is decided and no one's life or liberty is in question.

Practically they simply decide who is to be Plaintiff and who Defendant in the inevitable civil suit.

The next ground taken is that the judgment is not in accordance with law as the Magistrate does not support his decision with sufficient reasons.

Sub-sec. (4) provides that the Magistrate after hearing the parties and considering the evidence shall decide whether any or which party was in possession. The word “decide” does not necessarily include giving reasons for the decision; when the Code intends that reasons should be given, it says so. As an instance sec. 263(h) may be referred to. The Code clearly contemplates cases in which no reasons are to be given. See sec. 370(l) which makes it clear that only where a Presidency Magistrate inflicts a sentence of more than a certain amount is he obliged to give reasons.

See also sec. 213 which provides that the Magistrate shall give reason for committing an accused for trial. Sec. 366 and sec. 367 of the Code have no application, for these proceedings under Chap. XII are not trials.

The conclusion to which a careful consideration of the Criminal Procedure Code leads me is that the law does not require that the Court should give reasons for the decision in a proceeding under Chap. XII. The reason is obvious. These proceedings are summary proceedings to prevent breaches of the peace and nothing more.

I would discharge the Rule.

[Owing to this difference of opinion, the case was heard again before Buckland, J.]

Babu Dwijendra Krishna Dutta for the Petitioner.

Mr. Pugh, Counsel and Babus Satindra Nath Mukerjee and Profulln Chandra Chakraverty for the Opposite Party.

The Judgment of Buckland, J., was as follows:—

Buckland, J.:— This case has been referred to me under sec. 439/429 of the Code of Criminal Procedure. Two points arise for decision: Firstly, whether in proceedings under Chap. XII, Cr. P.C, the provisions of sec. 360(i) as to reading over the evidence to the witnesses in the presence of the accused have to be complied with, and secondly, whether under sec. 145(4) it is the duty of the Magistrate to state his reasons for his decision.

As to the first point, the case depends upon whether or not the parties are persons to whom the section refers by the words “the accused.” Several authorities have been cited in support of the contention that the parties to proceedings instituted under Chap. XII are persons to whom the section so refers.

A definition of an accused, person was formulated by the High Court of Bombay in Queen-Empress v. Mona Puna in which their Lordships held that an accused is a person over whom the Court is exercising jurisdiction. That definition has been adopted in other cases, both by this Court and at Queen-Empress v. Mutasaddi Lal*].

In my opinion that definition cannot be accepted as one of universal application, and I entertain considerable doubt whether any of the learned Judges intended that it should be so applied. The Court exercises jurisdiction over, for instance, witnesses, and a definition of an accused person so stated would be equally applicable to them. It may be that in a case or class of cases a party is subject to sanctions or entitled to rights similar to those to which an accused person is subject or entitled. In such circumstances the phrase used in the judgment of this Court in Hopcroft v. Emperor that a party “is in the position of an accused person” is to be preferred. But that is a very different thing to holding that such a party is an accused. Queen-Empress v. Mona Puna and Jhojha Singh v. Queen-Empress have been distinguished by this Court in Benod Behari Nath v. Emperor. I do not however, understand that the authorities have been cited in support of any argument by analogy, but solely as providing a definition applicable to this case.

I have been referred to a recent unreported decision precisely upon the point, Aswini Kumar Dutt v. Puti* in which my learned brothers Mr. Justice Suhrawardy and Mr. Justice Mukerji have held that sec. 360 is applicable to enquiries held under Chap. XII, and Mr. Justice Mukerji, in referring to the use of the word “accused,” said:—

“I am inclined to take the view that the word has been used in its wider significance as meaning a person over whom the Criminal Court is exercising jurisdiction.”

With all respect to the learned Judges who decided that case, I am unable to take the same view. The Code of Criminal Procedure provides for trials and inquiries. Accused persons have to be tried. They are charged or liable to be charged with having committed an offence. An offence is defined [sec. 4(o)] as an act or omission made punishable by any law for the time being in force.

Under Chap. XII the Magistrate holds an enquiry. An enquiry is not a trial [sec. 4(k)]. To such an enquiry there are parties. No one is charged with having committed an offence. The ultimate decision should be a finding as to possession. The parties to such enquiry are so referred to, and the word “accused” does not find a place in the chapter.

The foregoing reasons in themselves appear to be sufficient to decide the point, but sec. 340, as recently amended, is, to my mind, conclusive, and the attention of the learned Judges who heard the case with which I now have to deal and Aswini Kumar Dutt v. Putt does not appear to have been drawn to it.

Formerly the section ran:—“Every person accused before any Criminal Court may of right be defended by a pleader.” Now the section recognises persons (1) accused of an offence before a Criminal Court, and (2) against whom proceedings are instituted under the Code, that is to say, two classes of persons.

Sec. 340(2) then goes on to say:—“Any person against whom proceedings are instituted in such Court under sec. 107, Chap. X, Chap. XI, Chap. XII or Chap. XXXVI or under sec. 552 may offer himself as a witness in such proceedings.”

This provision is entirely new. Formerly, such persons were unable to offer themselves as witnesses. To that extent, they may then be said to have been in the position of persons accused of offences who neither then nor now may offer themselves as witnesses in proceedings in which they are charged with such offences. Sec. 342(4) provides that no oath shall be administered to the accused. Were it to be held that persons against whom proceedings are instituted under Chap. XII are accused persons, the result would be that though they might offer themselves as witnesses in such proceedings, no oath could be administered to them.

There is also another difficulty in the way of the Petitioners to which my attention has been drawn on behalf of the Opposite Party sec. 360 provides:—

“As the evidence of each witness taken under sec. 356 or 357 is completed, it shall be read over to him in the presence of the accused, if he is in attendance, or of his pleader, if he appears by pleader, and if necessary, shall be corrected.”

It has been decided by this Court in Kefatullah v. Feruzuddin Miah(10) that parties to an inquiry under Chap. XII cannot be compelled to attend by the issue of a warrant, in itself a material difference from the position of an accused person. Assuming, therefore, that the parties to such inquiry do not attend nor appear by pleaders, there are no means whereby sec. 360(1) can possibly be complied with, and if the view which I am invited on behalf of the Petitioners to take is the correct one, the result would be that in such circumstances there could not be any legal conclusion to an inquiry under Chap. XII.

In my judgment, the parties to proceedings under Chap. XII of the Code of Criminal Procedure are not persons referred to by the words “the accused” in sec. 360(1) of that Act.

The second point which has been argued is that the Magistrate has not given reasons for his order under sec. 145(4). I may say at once that reliance is not placed upon secs. 366 and 367 of the Criminal Procedure Code, to which reference was made in Bhuban Chandra Hazra v. Nibaran Chandra Santra. In that case, however, the learned Judges said:—

“Whether these sections did or did not apply to proceedings under sec. 145, they were entitled to require from the trial Magistrate a statement of the reasons for the decision sufficient to enable them to determine whether he has or has not complied with sub-sec. (4) of sec. 145 and directed his mind to the consideration of the effect of the evidence adduced before him.” With that judgment and also the judgment in Motaherili v. Ishaque(11). I am in entire accord. To what extent a Magistrate should give effect to what has been so decided one cannot lay down by general rule, but I may say that provided he complies with what learned Judges have said is necessary for the purpose of enabling this Court to appreciate and deal with the case in revision, a degree of brevity which would be out of place in a judgment to which sec. 367 applies would not necessarily be open to objection.

The learned Magistrate in this case has merely stated that one witness was examined on behalf of the first party and five were examined on behalf of the second, but there is nothing from which one can weigh his appreciation of the evidence beyond the bare statement of his finding.

The first question is as to the order which I ought to make. I observe that my, learned brother Mr. Justice Suhrawardy stated that in his opinion the decision of the Magistrate is correct on the merits. Though my learned brother Mr. Justice Cuming would have discharged the Rule he has not expressed an opinion as to the merits. Had he expressed a similar opinion even though I hold the view which I have stated as to the duty of a Magistrate under sec. 145(4), I should have discharged the Rule. As it is, the order I make is that the final order of the Magistrate, dated the 1st July 1924, be set aside, and I direct that the case be re-opened at the point reached on that date and that after hearing the parties afresh and after recording a statement of the reasons for his decision such as I have already indicated, the learned Magistrate do dispose of the matter in accordance with the law.

Before I part with this case I wish to refer to the position that arises by reason of my differing from the judgment in Aswini Kumar Dutt v. Puti*. Under sec. 429, Cr. P.C, the third Judge before whom the case is laid is required to deliver his opinion and the judgment or order shall follow such opinion. That does not enable me to refer the point to a Full Bench. References to a Full Bench are made under Chap. VII, rr. 1 and 5 of the Appellate Side Rules of this Court. The difficulty, however, is that sitting alone as a third Judge, to whom the case has been referred under sec. 429, Cr. P.C, I do not constitute a Division Bench within the meaning of the Rules and it is not therefore open to me to refer the point. Were I able to do so, I would refer it, but in the circumstances it appears to me that I have no option.

Learned Counsel asks that the case should go back to Mr. J. Dutt, who is now sitting at Alipore, though at the time when he made the order in question he was sitting at Sealdah. There is no question of jurisdiction and as he has concluded the inquiry the case should go back to him.

S.C.M