ORDER OF REFERENCE TO FULL BENCH.

Abdur Rahim, J. — In this case the question of law raised before us is whether proviso (a) to Sect 350 (1) of the Code of Criminal Procedure applies to a proceeding under Sect. 107.

The petitioners were bound down to keep the peace by a Magistrate who did not hear the evidence the evidence having been recorded by another Magistrate who has been subsequently transferred. An application was made for recalling the witnesses and for the evidence being taken de novo. That application was refused. We are asked to consider whether the petitioners were not entitled under proviso (a) to Sect. 350 (1) to have the witnesses resummoned and reheard.

It is not disputed that the main part of Sect. 350 does apply to this case. But what is contended is that its application to a proceeding under Sect. 107 is by virtue of the word “enquiry” used in Sect. 350 and that proviso (a) does not apply because it cannot be said that in a case like this any accused person is tried. The contention of the Public Prosecutor is that this is an enquiry and not trial within the meaning of Sect. 350.

There is no direct ruling on the point under Sect. 350 of the present Code of Criminal Procedure though under the old Code, it was held that such a proceeding was a trial in the present connection. There are rulings to the effect that a person who is proceeded against under Chapter VIII is an accused person within the meaning of the Code of Criminal Procedure. For instance Jhoja Singh v. Queen Empress(1) (Ghose and Rampini, JJ.); Queen-Empress v. Mutasaddi Lal*(3) in Hopcroft v. Emperor(4). There is also a decision of this Court that the words “order in a criminal trial” in Cl. 15 of the Letters Patent comprehends an order passed by a single Judge of this Court in a proceeding under the provisions of Chapter VIII. See In the matter of Ramasamy Chetty(5). There can be no doubt that in Sect. 350 and in other sections of that chapter and several of the succeeding, chapters the words ‘enquiry or trial’ when used in juxta position to each other are intended to mean two different things. Nor can there be any doubt that the word ‘enquiry’ is often used in several places in the general popular sense of investigation into the truth of any matter; see, for instance, Sect. 177 where it is said “Every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed.” There are also many other sections in which the word ‘enquiry’ is used in that popular sense. ‘Inquiry’ is defined in Sect. 4 (ft) as including every inquiry other than a trial conducted under this code by a Magistrate or Court; but ‘a trial’ is not defined. The question in this connection would be whether a proceeding under Sect. 107 of the Code of Criminal Procedure cannot properly be called ‘a trial’ within the meaning of Sect. 350 (a). This very definition shows that the word ‘inquiry’ has a wider significance which would ordinarily include trials but when used in a technical sense it is to be taken to exclude “trials.”

If we examine the scheme of the Code of Criminal Procedure it seems to me to be apparent that wherever the words ‘enquiry’ and ‘trial’ are used in two distinct senses, by ‘enquiry’ the legislature mostly refers to enquiry into cases, ‘triable by the Court of Session or the High Court and some times also enquiries such as under Chapter XII (enquiry into disputes as to immoveable properties) which cannot be called ‘trials’. Chapter XVIII is the chapter which deals with ‘enquiries’ into cases triable by a Court of Sessions or High Court. Chapter XIX deals with the form of charges, Chapter XX with the trial of Summons Cases by Magistrate, and XXI with the trial of Warrant Cases. Chapter XXII deals with summary trials and XXIII deals with trials before High Courts and Courts of Session. Then we come to Chapter XXIV which contains Sect. 350. That chapter is headed “General provisions as to enquiries and trials”. Chapter XXV deals with the mode of taking and recording evidence in enquiries and trials. We find in Sect. 35.3 that “all evidence taken down under chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader”. That does not go beyond Chapter XVIII which deals with enquiries in cases triable by the Court of Sessions or High Court. Sect. 356 throws considerable light on the question. It says that ‘in all other trials’ before Courts of Session and Magistrates, other than Presidency Magistrates, and all in enquiries under Chapters XII (disputes as to immoveable properties) and XVIII (cases triable by the Court of Session or High Court) the evidence of witnesses shall be recorded in a particular manner. If this section applies to proceedings under Chapter VIII—and there can be no doubt that it does—then a proceeding under Sect. 107 is a trial within the meaning of the Code. Chapter XXVI deals with judgments. As regards Chapter VIII, it is in part IV which deals with prevention of offences; and I do not find that in that chapter the word ‘enquiry’ is used in any technical sense as contradistinguished from trial. In fact, as I have already pointed out, it is in Chapter XVIII that the word “enquiry” is used in a strictly technical sense as distinguished from trial, that is to say, the Magistrate is to enquire into the cases dealt with there but is not empowered to dispose of them finally; he has to record the evidence and if he thinks there is a prima facie case he is to commit it to the Court of Session or High Court for trial. It seems to me therefore that there is no warrant for holding that the word ‘trial’ as used in Sect. 350 (a) is not intended to cover cases under Sect. 107.

But even apart from that, I think that Sect. 117 makes it quite clear that Sect. 350 including Proviso (a)—I am somewhat doubtful about Proviso (6) because of the use of the word ‘conviction’ there—is made applicable to a proceeding under Sect. 107. Sect. 117 says that an enquiry as to the truth of the information—it is evident that the word ‘enquiry’ here is used in the popular sense—“shall be made as nearly as practicable, where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in Summons Cases; and where the order requires security for good behaviour, in the manner hereinafter prescribed for conducting trials and recording evidence in Warrant Cases, except that no charge need be framed”. It is argued by the learned Public Prosecutor that Sect. 117, clause (2) refers only to Chapters XX and XXI which are headed, “Trial of Summons Cases by Magistrates” and “Trial of Warrant Cases by Magistrates” and that none of the other succeeding chapters are referred to in Sect. 117. The argument in support of this contention is, I take it, that those chapters specifically refer to trials of Summons and Warrant cases. But I am unable to accept this argument. Those two chapters deal only with certain limited and special questions of procedure relating to Summons and Warrant Cases. There can be no doubt that many of the general provisions of Chapter XXIV would apply to proceedings under Sect. 107 and similar other proceedings under Chapter VIII. But it is said that this is so because both the words ‘enquiry’ and ‘trial’ are used and according to the contention for the prosecution a proceeding under Chapter VIII is an enquiry and therefore the provisions of Chapter XXIV are made applicable by force of that word. But it is difficult to see any force in this argument in the face of the express and clear language of Sect. 117.

Chapter XXIV contains many provisions which must necessarily apply to proceedings under Chapter VIII. For instance Sect. 344 which gives power to the Court to postpone or adjourn proceedings, Sect. 340 which says that “Every person accused before any Criminal Court may of right be defended by a pleader” and Sect. 341 which lays down the procedure to be observed in cases where the accused does not understand the proceedings. The Code of Criminal Procedure must be taken to be exhaustive so far as the procedure to be observed by the Magistrates and other Criminal Courts in the various proceedings under that Code is concerned and must be expected to provide for all cases in the proceedings under the Code where the evidence was heard and recorded by a Magistrate and that Magistrate is subsequently transferred. That is provided by Sect. 350 and there is the other provision for such contingencies.

Sect. 117 says that where a matter is inquired into under Chapter VIII the inquiry shall be made as nearly as may be practicable in the manner hereinafter prescribed for conducting trials (and not inquiries) and recording evidence in Summons cases. Sect. 350 proviso (a) lays down what is to happen when the Magistrate who recorded the evidence is no longer exercising jurisdiction in cases where an accused is under trial. That obviously applies both to Summons and Warrant cases. Sect. 117 thus by explicit language embodies the Proviso of Sect. 350 proviso (a).

It was suggested that the provision that an inquiry shall be made in the manner hereinafter prescribed etc., does not refer to a rule of procedure to be observed but to something else. I must say that I do not quite understand this contention but so far as I could follow it, it seems to be utterly untenable. Sect. 117 clearly refers to the procedure to be observed in cases under Sect. 107 and other similar Sections of Chapter VIII. Therefore even if it were granted—I have shown that this contention is not correct—that a proceeding under this chapter is an enquiry as contradistinguished from a trial, I should still hold without any hesitation that the procedure prescribed in Sect. 350 (a) is expressly adopted by the legislature for the purposes of proceedings under Chapter VIII as Sect. 117 says that the enquiry shall be made in the manner prescribed for conducting trials.

If we look at the provisions of Chapter XXV which refers to the mode of taking and recording evidence in inquiries and trials the position seems to be equally clear. Similarly the chapter relating to “judgment'’ shows that all the general provisions, as far as practicable, have to be applied in cases under Chapter VIII, I have, therefore, upon an examination of the Code arrived at the conclusion that Sect. 300, proviso (a) applies to a proceeding under Sect. 107.

A ruling of the Calcutta High Court was brought to our notice in which it was held with reference to Sect. 350 that a proceeding under Sect. 145 of the Code of Criminal Procedure is an enquiry and therefore Sect. 350 would apply. That is the case of Anu Sheik v. Emperor. Then.it must be pointed out that in that case no question arose of the application of cl. (a) of Sect. 145, and it could hardly be contended that in such a proceeding there is any person who can be called “accused” nor is there any provision like that of Sect. 117 in Chapter XII. I might also point out that Sect. 840 of the Code of Criminal Procedure has been applied to a proceeding under Chapter VIII; (see Jhoja Singh v. Queen Empress). Sect. 443 has been applied to such a proceeding in Hopcroft v. Emperor, and Sect. 437 in Queen Empress v. Mutasaddi Lal. I would hold, therefore, that the petitioners were entitled to ask in this case that the witnesses should be re-summoned and re-heard, and I would direct that the order of the Magistrate be set aside and the case be remitted to him for further enquiry, the petitioners being given an opportunity to have the witnesses re-summoned and re-heard before the trying Magistrate.

But my learned brother takes a different view. The question of law involved is however one of some importance and should be settled by a Full Bench. The question is ‘whether Sect. 350 (1) Proviso (a), Criminal Procedure Code, applies to a case under Sect. 107, Criminal Procedure Code.

Spencer, J.—This petition is to set aside an order made by the District Magistrate of Kurnool refusing to cancel the bonds taken from the petitioners by the Deputy Magistrate Markapur for security for keeping the peace. The Deputy Magistrate who held an enquiry under Chapter VIII of the Criminal Procedure Code passed an order requiring the petitioners to execute bonds to keep the peace upon evidence partly recorded by his predecessor. The question which has been argued before us is whether Sect. 350 of the Criminal Procedure Code gives a person against whom such proceedings are being taken a right to demand that the witnesses already examined should be resummoned and reheard when the Magistrate who first enquired into the case is transferred before the conclusion of the enquiry. Chapter XXIV of the Criminal Procedure Code deals with general provisions as to enquiries and trials, and Sect. 350 which occurs in this chapter, undoubtedly applies to proceedings for taking security to keep the peace as it in terms refers to ‘enquiries’ or trials. But proviso a) runs thus. “In any trial the accused may, when the second Magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard.” If it was intended that this provision should apply to enquiries also, one would expect that the words used would be 'In any enquiry or trial’, as those are the words used in the body of the section. It was held in Anu Sheikh v. Emperor*, that Sect. 350 would apply to enquiries under Sect. 145. But there is no authority for saying that the person called upon to show cause against giving security has an inherent right to insist under proviso (a) to that section on re-calling witnesses except the case of Buroda Kant Roy v. Korimuddi Moonshee, which is under the Code of 1872. The learned Judges therein observe that an order directing a person to give security is in substance a conviction. With great respect I am unable to agree with that proposition. According to the strict letter of the proviso to Sect. 350 it is only in trials that the accused can demand a re-hearing of witnesses. Although a trial is not defined in the Code there is a definition of an enquiry in Sect. 4 (k) which is said to include every enquiry other than a trial conducted under this Code. Wherever the word ‘trial’ occurs in the Code of Criminal Procedure it appears to refer to proceedings in which an accused person stands before a Judge or Magistrate who is empowered to convict him upon a charge of an offence committed by him and to sentence him to one of the punishments described in Chapter III of the Indian Penal Code. Schedule II of the Code of Criminal Procedure provides by what Magistrates offences may be tried and Schedule III empowers certain Magistrates to try offenders. But when the schedule speaks of enquiries under the preventive sections of the Code it refers to them as powers to require security for good behaviour or for keeping the peace. I therefore consider that the word ‘trial’ in proviso (a) to Sect. 350 does not include an enquiry with a view to requiring security to keep the peace. There is a decision of this High Court in Palaniandy Goundan v. Emperor, which I am prepared to follow, that proviso (a) to Sect. 350 applies only to trials and not to enquiries. The learned Judges were dealing there with a preliminary enquiry prior to commitment and not to an enquiry under any other chapter than Chapter XXIII. But ‘enquiry’ in the body of Sect. 850 is not limited to enquiries preliminary to commitment but also includes enquiries in miscellaneous matters under Chapters VIII, X, XI and XII, that is to proceedings regarding security to keep the peace or for good behaviour, to suppress public nuisances, to determine disputes regarding immoveable property likely to cause a breach of the peace, as well as to a preliminary enquiry under Sect. 476 before sending a case for enquiry or trial to a 1st Class Magistrate for an offence against the administration of justice. For this we have the high authority of Mr. Prinsep (see his commentary on the Code of Criminal Procedure), If it was intended that the provision should only apply to certain enquiries, and not to others, it would have been easy to specify the kind of enquiries intended to be covered by the words of the provision. On the other hand in proviso (a) the word ‘trial’ seems to be used in clear contradistinction to the words ‘an enquiry or a trial’ in the body of the section.

A suggestion has been made by my learned brother that by Sect. 117 of the Code of Criminal Procedure which directs that enquiries relating to security for keeping the peace should be made in the manner prescribed for conducting trials in summons cases, and proceedings in cases of requiring security for good behaviour should be conducted in the manner prescribed for conducting trials in Warrant Cases, all other provisions in the Code which apply to trials wherever they occur will be attracted to and will govern enquiries regarding security for keeping the peace or for good behaviour, as if they were trials. In my opinion the provision in Sect. 117(2) refers only to the procedure laid down in Chapters XX and XXI respectively for the trial of Summons and Warrant cases. The general provisions in Chapters XXIV and XXV no doubt apply to proceedings under Chapter VIII but they do so of their own force and not because they contain rules of procedure for the trial of Summons and Warrant Cases by virtue of Sect. 117, Cl. 2. This very Sect. 117 refers to proceedings for requiring security as enquiries, and thus observes the distinction between an enquiry and a trial. In In re Adur Desikachari, it has been observed that proceedings under this chapter fall within the scope of an enquiry rather than a trial. We held in that case that for the purpose of the Madras Letters Patent they would come under the description of a criminal trial. But that decision was independent of the words of definition in the Criminal Procedure Code and had only to do with the words that occur in the Madras Letters Patent.

I am therefore of opinion that the District Magistrate was right in holding that the petitioners had no inherent right to require a retrial of the case. I also think that we have no power to order a retrial under proviso (b) to Sect. 350 as there has been no conviction of an accused within the meaning of that proviso.

In my opinion, apart from the merits of the application into which we have not entered, the Criminal Revision Petition should be dismissed. I agree that the question of law may be referred to a Full Bench.

[This case came on for hearing before this Full Bench on the 5th February 1920, in pursuance of the above Order of Reference].

Mr. A. S. Viswanatha Aiyar for the Petitioner.

The Public Prosecutor for the Crown.

OPINION

The Chief Justice. — I agree with the opinion of Ayling and Coutts Trotter, JJ., which I have had the advantage of reading, as to the effect of the proviso to Sect. 350 read with Sect. 117, and will only add that in my opinion trial generally means the determination of the issues arising the particular case. As pointed out in History of English Law, Pollock and Maitland, Vol. II, page 598, the word trial comes from the French trier, Latin tritare and was first used of the testing or trial of challenges to jurors. Triers of challenges are still appointed when necessary in English criminal trials. Though we talk of the trial of persons what are really tried both in civil and criminal cases are issues. An ordinary criminal trial in England is, in the language of the common law, a trial of the general issue joined between the Crown and the accused on the latter's plea of ‘not guilty’ of the charge preferred against him. See Archbold, Criminal pleading Cl. 4, Sect. 5 “The general issue” page 161, 25th Edition. On the other hand, the preliminary magisterial inquiry, which is of comparatively modern origin, forms no part of the trial. I think the framers of the Code had this distinction in mind when they framed the definition of ‘inquiry’ so as to exclude ‘trial.’ In the present case an issue undoubtedly arises between the Crown and the accused as to whether he should be dealt with under the sections, and I see no sufficient reason why the determination of that issue should not be regarded as a trial.

Ayling, J.—The question referred to us is as follows:—Whether Sect. 350 (1) proviso (a), Criminal Procedure Code, applies to a case under Sect. 107, Criminal Procedure Code.”

The proviso in question refers only to a “trial” smile the principal clause refers to “an inquiry or a trial.” The difference is significant; and points irresistibly to the conclusion that the legislature intended to distinguish between an inquiry and a trial and to direct that, while the principal clause should apply to both, the proviso should only apply to a “trial.” What, then, is a “trial”? It is curious that the phrase is not defined in the Code, although it is explained in Sect. 4 that the term “inquiry” includes every inquiry other than a trial conducted under this Code by a Magistrate or Court. It looks as if the framers of the Code regarded the word “trial” as of such obvious significance as to require no definition. At the same time it is noticeable that in many sections of the Code the words “inquiry” and “trial” are used in close juxtaposition, and apparent intended to signify two different things. I can find nothing to support the idea that either is ever used in any general or popular sense; for instance the words “inquired into” in Sect. 177, which has been referred to seem to me intended to direct that not only the trial of a Sessions Case, but the preliminary inquiry under Chapter XVIII. shall ordinarily take place before a Court having territorial jurisdiction. In the absence of express definition we can only look at the various sections of the Code in which the word “trial” is used; and I can find none in which it is not used in connection with proceedings in which a person stands before a Court empowered to convict him of some “offence” alleged against him. The word “trial” as used in the Criminal Procedure Code seems to presuppose the idea of an offence—a word defined in Sect. 4. No “offence” is involved in an inquiry under Chapter VIII of the Code; and in my opinion, inquiries under that Chapter are not trials. It follows that the proviso to Sect. 350 (1) does not apply “suo vigore” to such proceedings.

There remains, however, the argument that it nevertheless applies by virtue of the provisions of the second clause of Sect. 117, Criminal Procedure Code, which runs thus:—

“Sect. 117 (1) When an order under Sect. 112 has been read or explained under Sect. 113 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under Sect. 114, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary.

(2) Such inquiry shall be made as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases; and, where the order requires security for good behaviour, in the manner hereinafter prescribed for conducting trials and recording evidence, in warrant cases, except that no charge need be framed”.

It is argued on behalf of the crown that the effect of cl. (2) is merely to render applicable the provisions of Chapters XX and XXI of the Code which deal with the procedure in summons and warrant cases respectively, and those of Chapter XXV in so far as they deal with the mode of taking and recording evidence in such cases. On behalf of petitioner it is contended that the clause attracts the provisions of all sections of the Code, wherever found, which are applicable to summons and warrant cases: and in fact, places a person called on to show cause why he should not furnish security in exactly the same position (except as regards the framing of a charge) as a person tried in a summons or warrant case as regards the procedure to be followed and the privileges to be enjoyed by him in connection with the proceedings.

I must confess to great difficulty in the interpretation of this clause. It is certainly true that if the intention of the legislature had been that ascribed to it on petitioner's behalf, after language might have been employed; and the specific reference to the mode of recording evidence is somewhat significant of a limitation of the attractive power of the section On the other hand it would have been perfectly easy to specify Chapters XX, XXL and XXV, if the framers of the Act had only these in mind. I am not much impressed with the argument based on the fact that certain other sections of the Code have been held applicable to inquiries under Sect. 117, e.g, Sects. 340, 341, 344, 443 and 437. Sects. 341 and 344 apply “propria vigore” to inquiries as welt as trials. Sects. 340, 443 and 437 have been held applicable in Jhoja Singh v. Queen-Empress. Hopcroft v. Emperor and Queen-Empress v. Mutasaddi Lal but on a totally different ground—the true meaning to be attached to the word “accused”—not by any reference to Sect. 117.

It seems to me that the words of the clause may be held to cover anything which has to do with the procedure in the Magistrate's Court, and that the right to have the witnesses resummoned and reheard conferred by Sect. 350 is as much a matter of procedure as the right to have prosecution witnesses recalled and cross-examined conferred by Sect. 256. On the other hand if they are to be given the narrow interpretation contended for by the Crown, such provisions as those in Chapter XXVI regarding judgments will not apply to security cases. That is to say, the Magistrate in ordering security under Sect. 118 either for good behaviour or keeping the peace would be under no legal obligation, inter alia to record a judgment setting forth his reasons (Sect. 367) or to give accused a copy of it without delay (Sect. 371). So far as I can see, apart from the operation of Sect. 117, the Magistrate might simply record an order requiring the execution of a bond, without recording any reasons or discussing the evidence. I do not think this could have been intended, especially as care has been taken to provide for an appeal against an order for security for good behaviour (Vide Sect. 406), and for the interference of the Chief Presidency or District Magistrate in either class of cases (Sect 125), for reasons to be recorded. The sections in Chapter XXVI certainly apply “Propria vigore” only to trials: but the words “offence (if any)” in clause (2) of Sect. 367 are very curious, and suggest that the framers of the section may have had in mind the fact that they were indirectly applicable to inquiries under Chapter VIII by reason of the clause under consideration.

After the best consideration I can give the matter, I am inclined to think that Sect. 117 (2), Criminal Procedure Code, does attract proviso (a), Sect. 350 (1); and would answer the reference in the affirmative.

Coutts Trotter, J.—The question referred to us is whether Sect. 350 (1), proviso (a), Criminal Procedure Code, applies to a case under Sect. 107, Criminal Procedure Code.

The petitioners in the case were bound over to keep the peace under Sect. 107, Criminal Procedure Code, by a Magistrate who did not hear the evidence which had been heard and recorded by his predecessor who was transferred before its final determination. The petitioners claimed under the proviso to Sect. 350 to have the witnesses resummoned and reheard by the Magistrate who passed the final orders and their application was refused. They applied in revision to the High Court and the learned Judges, Abdur Rahim and Spencer, JJ., differed. They referred the question to this Full Bench.

Sect. 350 provides for a Magistrate who takes up a part-heard case acting on the evidence when wholly or in part recorded by his predecessor and the general part of the section enables him to do so in an ‘inquiry’ or ‘trial’ but the proviso only enacts that in any ‘trial’ the accused may have the witnesses recalled. The contention on behalf of the crown is that the scheme of the Code is to divide magisterial proceedings into ‘inquiries’ and ‘trials’ and the latitude given to the accused is confined designedly to ‘trials’ and that ‘inquiries’ are excluded from its application. The next step in the argument is to show that proceedings under Sect. 107 and the following sections are inquiries and not trials. The sections undoubtedly speak of an ‘inquiry’—See Sects. 117, 118 and 119.

The first contention of the petitioners is that the word ‘inquiry’ is used in the Code in two senses, a narrower and technical sense and a more general one. The narrower one is defined in Sect. 4 (k) as follows:—

“‘Inquiry’ includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.” A typical instance of such an inquiry is the preliminary inquiry held by a Magistrate previous to committal for trial by a higher Court. It can hardly be contended that the right conferred by the proviso to Sect. 350 could be successfully claimed in that case. It is said that ‘inquiry’ is used in a more general sense,—investigation into the truth of any matter—in Sect. 177 and the following sections where the language used is “Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose ‘jurisdiction it was committed.” But those sections are not incapable of meaning that the preliminary inquiry before trial and the subsequent trial after committal should both be within the limits of jurisdiction of each Court in respect of it. It is further urged that the word ‘trial’ should be regarded as being used where the context requires it in a general and popular sense. It is quite true that the word ‘trial’ is not defined in the Code but it may not unreasonably be urged that the definition of ‘inquiry’ impliedly defines ‘trial’ as every proceeding which is not an inquiry.

The question is whether we are bound to confine ourselves to the four walls of the Code taking the nearest approach we can get to a definition, express or implied, and apply it rigidly, of whether we are at liberty to supplement the Code by an application of the principles that lie at the root of the administration of the criminal law. In interpreting an English criminal statute there would be no difficulty: it is always subject to the general principles of the common law unless they are excluded by the plain words of the statute. The history of the doctrine of mens rea and its application to various statutes is a familiar example. If we adopt such a procedure here, there could hardly be any doubt that the proceedings under Sect. 107 and the cognate sections have all the features of a trial. A person against whom they are taken has repeatedly been held to be an accused within the meaning of the Code though he is not expressly so described. He has been held to have the right to be professionally represented and if he cannot be said to be ‘charged’ with an offence, it is at least sought to be proved against him that he is a person with criminal or undesirable propensities. Finally the consequences to him, if he neglects or is unable to furnish security, are so serious as to entail loss of liberty for a very considerable period. On the other hand, the history of the various Codes and the circumstances of those Codes unquestionably show that the framers of them intended them to be complete in themselves.

Besides these general considerations it may be argued that the contrast between the body of Sect. 350 which expressly mentions both inquiry and trial and the proviso which speaks exclusively of trial is indicative of the intention to use trial as excluding inquiry which can properly be or is described as an enquiry within the meaning of the Code. This comes back to the original argument that inquiry must be construed as used in a nontechnical and popular sense in Sect. 107 following, because if “inquiry” there is used in the technical sense by Sect. 4 it excludes ex vi termini the idea of its being also a trial since an inquiry is in effect defined as that which is not a trial. No doubt if manifest absurdity or injustice ensued from treating ‘inquiry’ in any particular context as being used in the technical sense, the Court would feel itself at liberty to assume that the word is used in a looser and more popular sense. For reasons presently to be stated I am of opinion that it is not necessary to decide this question or to determine whether to deprive the accused of the right of having the evidence reheard by the Magistrate who is to determine his fate is so flagrantly oppressive as to call for the construction of the word ‘inquiry’ in the material sections in a different sense from that defined in the Code. For by Sect. 117 it is enacted that “such inquiry shall be made, as nearly as may be practicable where the order requires security for keeping the peace, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases; and, where the order requires security for good behaviour in the manner hereinafter prescribed for conducting trials and recording evidence in warrant cases, except that no charge need be framed.” It is argued that this only incorporates Chapters XX and XXI of the Code which contain specific provisions applicable only to summons and warrant cases respectively. But the Code contains many general provisions to be found outside these two chapters which regulate matters of procedure in summons and warrant cases alike, such as the directions as to the manner in which evidence shall be received and recorded, the right of the accused persons to be legally represented and the like. I think the true interpretation of Sect. 117 is that it requires the whole of the procedure in a summons or warrant case respectively to be adopted by the tribunal which inquires into a security case. It is an essential part of that procedure to make provision for the contingency, common to all, of a case coming in the first instance before one Magistrate and afterwards before its conclusion before another. I am of opinion, therefore, that the accused has the same right to have the witnesses recalled in a security as in a summons or warrant case; for that is not a substantive right but a right relating to the procedure to be adopted. Accordingly I answer the reference in the affirmative.

C. K.Question answered in the affirmative.