RAMNARAYAN MOR AND ANOTHER v. STATE OF MAHARASHTRA
Citation: [1964] 5 S.C.R. 1064; 1963 INSC 257
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , K. SUBBA RAO, M. HIDAYATULLAH, J.C. SHAH, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1963 INSC 257. Supreme Court of India judgment dated 1963-12-16. RAMNARAYAN MOR AND ANOTHER v. STATE OF MAHARASHTRA. Read the judgment and case details on...
Judgment text
1963 December 16 1064 SUPREME COURT REPORTS (1964] RAMNARA YAN MOR AND ANOTHER v. STATE OF MAHARASHTRA (B. P. SINHA, C. J. , K. SUBBA RAO, M. HIDAYATULLAH, J. C. SHAH . AND N. RAJAGOPALA AYYANGAR JJ. ) Code of Criminal Procedure (Act V of 1898), ss. 173(4) and 207A(6)-"Evidence", meaning of--lf includes documents under s. 173(4). ' I On the receipt of a police report, the Magistrate First Class Akola took cognizance of offences under ss. 406, 408, 409, 120B and 477A Indian Penal Code against the appellants. The Investi- gating Officer furnished the accused persons with copies of docu- ments which are required by s. 173(4) of the Code of Criminal Pro- cedure to be furnished. At the commencement of the enquiry under Ch. XVIII of the Code of Criminal Procedure, the Public Prosecutor informed the Court that the evidence in the case being "mainly documentary" the prosecution did not desire to examine any witnesses at the stage of the committal proceeding.
After the arguments on behalf of the State and the accused were heard, an application was submitted by. the Prosecutor that the accused be examined by 'the Magistrate under s. 207-A(6) of the Code of Criminal Procedure. The application was granted by the Magistrate after rejecting the objections raised by some of the accused and the accused were ordered to remain present in court for examination under s. 207-A sub-ss. (6) and (7). Against that order the appellants· moved the High Court in rnvision but without success. It was urged on behalf of the appellant that in an enquiry for commitment to the Court of Session the accused person can be asked to explain circumstances appearing against him only from the oral evidence recorded under s. 207-A(4), and not from circumstances appearing from the documents furnished under s. 173(4) of the Code. Held (per B. P. Sinha, C. J. K. Subba Rao and J. C. Shah, JJ. ) (I) that the legislature has used the expression "evidence" at three places in cl.
(6) of s. 207A of the Code of Criminal Pro- cedure. In the first clause of sub-s. (6) the evidence is, as the statute expressly enacts "the evidence referred to in sub-s. (4)" and the expression "that such evidence and documents disclose no grounds for committing" indicates, having regard to the context that the evidence referred to in sub-s. (4) alone is comprehended thereby. But in the context of the explanation of the accused for the purpose of enabling him to explain any circumstances appearing again:st him, the legislature has ·used the expression "in the evidence against him", which is not expressly qualified by reference ' \~ - • ' rd 'evidence' occurs in the sub-section is the passage reading 'such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for commit- ting the accused person fo~ trial'. It is clear here the word 'documents' denotes the documents referred to earlier, namely those in s.
173 and these are again distinguished from 'evidenee'. Here also there cannot be any doubt that the word 'evidence' is a · refe- rence to the evidence recorded under sub-s. · (4)-· and which has already been referred to in the opening words of the sub-section and this also we might say was not disputed by Mr. Setalvad. Pausing here and taking up sub-s. (7) the distinc- tion between "evidence" in the sense of oral evidence recorded under sub-s. (4) and the documents under s. 173 is again seen to be maintained with ri- gour for the phraseology adopted in that sub-section is "upon such evidence being taken, and such documents being considered". With the phraseology em- ployed in sub-section( 4), two out of three places in sub-ss.
(6) & (7) it would require very strong and compelling reasons to hold that when words "the evidence" were used in the passage now in question they were employed in a different sense divorced from the dichotomy between 'evidence' and 'documents' I ) - ( • - • ...... 5S. C. R. SUPREME COURT REPORTS 1087 which runs throughout these provisions. In fact, even the judgment of the Bombay High Court on which the Magistrate and the learned Sessions Judge relied, proceeds on the acceptance of this construction of sub-s. (6). The learned Chief Justice after referring to the several sub-sections of s. 207-A observed: "The learned Assistant Government Pleader has urged that the word 'evidence' which follows with the words 'any circumstances' appearing in sub-s. (6) is used in a wider sense so as also to include the documents referred to in s. 173.
This argument cannot be accepted, in view of the latter part of the sub-section, which requires the Magistrate to form an opinion on 'such evidence and documents'. Here again the documents are referred to separately from evidence. It is, therefore, clear that 'evidence' does not include the documents, which are men- tioned separately in both sub-secs. (6) and (7). Consequently, 'evidence' in these provisions means evidence, if any, recorded under sub-s. (4). The section, therefore, contemplates an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, that is in the evidence, if any, recorded under sub-section (4).
" But the learned Chief Justice then proceeded to point out that there was an apparent lacuna in the sub- section which, however, he held was remedied by the later part of the sub-section directing the Magis- trate 'to give the accused an opportunity of being heard,' and that under this provision the Magistrate was vested with power to examine the accused for the purpose of explaining why he should not be com- mitted for trial before the Sessions. With great respect to the learned Judges we are unable to accept as correct the reasoning on which this conclusion is based. In the first place, it is not possible to accept the view that there is a lacuna m the sub-section arising out of the construction of 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1088 . SUPREME COURT REPORTS [1964] the word 'evidence' which the learned Judges accepted. The scheme of s.
207-A(6) & (7) is that there are two sets of materials on the basis of which the Magistrate is directed to make up his mind whether a prima facie case has been made out against an accused person justifying his being committed to take his trial, oral evidence recorded under sub-s. (4) and the documents referred to in s. 173 and filed before him. If on a proper construction of sub-s. (6), it is held that in the event of one type of material being placed before the Court viz. , oral evidence, the accused shall be questioned in order to explain the circumstances . appearing against him on that material-the provision discloses no lacuna. On such a construction it would mean that the accused is not to be questioned if no such evidence has been recorded in the case and is present before the Magistrate. Nor are the learned Judges right in saying that the words 'given the accused an opportunity to be heard' involve an examina- tion of the accused.
These are words of common , occurrence in the Code and elsewhere and mean an opportunity to submit reasons for the acceptance of the Court. They do not refer to questions and answers which must be recorded verbatim and made part of the record, and which could be used as evi- dence under s. 287 of the Code. In the context they are capable of meaning only hearing the arguments or submissions by the accused on the case or in re- gard to the documents where there has been no evi- dence of the type mentioned in sub-s. ( 4). In this connection it has to be pointed out that when the accused is examined, the statement recorded by the Magistrate may be used as evidence against the ac- cused under s. 287 of the Criminal Procedure Code and this sub-section merely speaks of an opportunity to be heard.
It is needless to point out that along with the accused the prosecution is also to be given "an opportunity to be heard" and in their case it is obvious that the relevant word cannot mean an examination by questions put and answers recorded. This is made more clear and this conclusion is re- inforced by the terms of sub-s. (7) which we have J / / - , - •• - 5 S. C. R. SUPREME COURT REPORTS 1089 extracted. If nothing more could be urged in support of the construction adopted by the courts below than the reasoning to be found in the judgment of the Bombay High Court, it is manifest that the order now under appeal cannot be sustained . Mr. Setalvad, however, did not rely on the judg- ment of the Bombay High Court, nor did he seek to support the reasoning on which it is based and, in fact, he conceded that the main reason given by the learned Judges based upon the words 'the accused being given an opportunity to be heard' could not be sustained.
We invited him to point out any other place where such words had the meaning attri- bwted by the High Court of Bombay but he could not. The points, however, urged by him were three. First the employment of the expression 'the evidence' as contrasted with 'the evidence referred to in sub- s. (4 )' or such evidence which were the expression used in the other two places where the word 'evidence' was used in sub-s. (6). Based on this the argument was that the words 'the evidence' were used in a comprehensive sense not confined to the oral evidence recorded under sub-s. ( 4) and extended to the entirety of the material on which the Magistrate was to de- termine the prima facie case against the accused. We feel unable to accept this argument. We have already analysed the terms of the sub-section. In the light of the phraseology employed in other sub- sections, particularly sub-ss.
(4) & (7), we have found that the sub-sections draw a clear and sharp distinc- tion between "evidence" and "the documents" re- feirred to in s. 173. Such a distinction is made in every part of sub-s. (6), as well as in sub-s. (7). In the circumstances we attach no importance to the absence of the word 'such' and the use instead of the word 'the' in the relevant clause. The definite article 'the' obviously in the context refers to the 'evidence' alrea- dy referred to in the opening words of the sub-section, namely that recorded under sub-s. (4). It is the same evidence which is again referred to in the third plaCC' 1/SCI/64-69 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1090 SUPREME COURT REPORTS [1964] where that word is used in the concluding part of that sub-section.
The rule of interpretation which is applicable was stated by Lord Radcliffe-"the meaning which these words ought to be understood to bear is not to be ascertained by any process akin to speculation. The primary duty of a Court of law is to find the natural meaning of the words in the context in which they occur, the context including any other phrases in the Act which may throw light on the sense in which the makers of the Act used the words in dispute. "(! ) Mr. Setalvad's next submission was based on a comparison of sub-s. (6) of s. 207-A with sub-s. (2) of s. 251-A. In this connection stress was laid. on the fact that both ss. 207-A and 251-A were in- troduced by the same enactment-Act XXVI of 1955, and both dealt with the procedure to be adopted in cases instituted on a police report. Sub-s. (2) of s. 251-A empowers the Magistrate to examine the accused, if necessary, in respect of matters appear- ing in the documents under s. 173(4).
Section 251-A (2) reads: "If, upon comideration of all the documents referred to in s. 173 and making such examina- tion, if any, of the accused as the Magistrate thinks necessar) and after giving the prosecu- tion and the a :cused an opportunity of being heard, the Magi. itrate considers the charge against t «i J the accused to oe groundless, he shall discharge 1 ""'. him. " This is preceded by sub-s. {I) which is an analogue of sub-s. (3) of s. 207-A and enacts: "When in any case instituted on a police report, the accused appears or is brought before a Magis- trate at the commencement of the trial, such Magistrate shall satisfy himself that the docu- ments referred to in section 173 have been fur- nished to the accused, and if he finds that the accused has not been furnished with such (1) Macmanaway In re [1951] A. C. 161 at p. 169. - - - 5 S. C. R. SUPREME COURT REPORTS 1091 documents or any of them, he shall cause them to be so furnished. " The argument based upon sub-s.
(2) was two fold: (1) There is no anomaly or injustice in empower- ing the Magistrate to examine an accused person in respect of the matters appearing in the documents under s. 173; for Parliament has in terms made pro- ' vision for such an examination. (2) Tn view of the terms of s. 251-A(2) which was enacted at the same time as s. 207-A, the word 'evidence' in sub-s. (6) is capable of being understood as meaning 'on the examination of the accused with reference to the material on which the Magistrate proceeds to act', for in both the cases the object of the examination is in the interests of the accused "' and in order to afford the accused an opportunity not to be committed or to have a charge framed against him as the case may be. We do not think that such a comparison is a sound rule of construe- ~ tion. Besides we feel unable to agree that a com- parison of the provisions of s. 251-A(2) affords the respondent any assistance.
On the other hand, the contrast in the language employed in the two pro- visions appears to us to favour the construction " that the expression 'evidence' in the relevant portion of s. 207-A(6) is a reference to the evidence recorded under sub-s. ( 4) which has been tested by cross- , examination, if any. It is to be noticed that when ""' the framers of Act 26 of 1955 referred to the documents under s. 173, they are both in s. 207-A, as well as in s. 251-A referred to as 'documents' . and not as evidence. Added to this is the circumstance that whens. 251-A(2) empowers the court to examine the accused it not merely does not use but scrupu- lously avoids the use of the expression 'evidence'. It does not make such examination compulsory- mark the words 'if any' -and does not even refer to the documents at all. In this connection it may be - • . pointed out that when the Bill 20-B of 1954 which later became Act 26 of 1955 emerged from the Select Committee, the relevant words in s.
207-A(6) 1963 Ramnarayan Morand another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Morand another v. · Stateof Maharashtra Ayyangar J. 1092 SUPREME COURT REPORTS • [1964] I were identical with those which are now found in s. 251-A(2) i. e. , without the use of the word 'evidence' and without even an indication of the purpose for which the court was empowered to examine the accused. It was during passing of the Bill in Parliament that sub-s. (6) was amended so as to read as it does at present. This, in our opinion, is a circumstance which shows that the word 'evidence' was not used by error or inadvertently but that a deliberate change ) was intended from the provision contained ins. 251-A (2). That is an additional reason why we consider that the terms of s. 251-A(2) far from assisting the respondent in reality militate against the acceptance of the submission.
_, - We might, in this connection make a reference to another provision in the Code where the language now calling for construction has also been employed. "' Section 342(1) opens with the words 'For the pur- pose of enabling the accused to explain any circum- stances appearing in the evidence against him'. It is obvious that the Magistrate would have no jurisdic- ;" tion under · this provision to examine an accused (a) either when no oral evidence for the prosecution has been recorded or (b) in respect of matters about which there is no evidence adduced in the sense in which that expression is used in the Indian Evidence ~ Act for enabling the court to hold any fact in issue, - or a relevant fact to be proved. Speaking of this section, Raghu bar Dayal J. as he then was, observed 1. ,_. in Bachchan Lal v. The StateC 1 l. · "The object of the examination of the accused under s.
342, Criminal Procedure Code, is to afford him an opportunity to explain away the circumstances which go against him and is not to elicit matter on the record about which there is no evidence. The Court is not an investiga- ting agency whose duty is to find out facts which could be put before the Court at the trial"; and in another decision reported in Bahawala v. The ~ CrownC2) the Court held that an illegality was committed ... (! ) A. I. R 1957 Allahabad 184. (2) I. L. R. 6 Lah. 183. . - 5 S. C. R. SUPREME COURT REPORTS 1093 when the accused was examined before the evidence for the prosecution was recorded. The reasoning was that at that stage there was no evidence against him and consequently there were no circumstances in that evidence which he could be called upon to explain. We consider that the principle laid down by these decisions correctly explains the law as to the circumstances in which an accused could be exa- mined by the Magistrate under a provision worded like s.
207-A(6). The last submission of Mr. Setalvad was based on the definition of the expression 'evidence' in s. 3 of the Indian Evidence Act where evidence is defined thus: 'evidence' means and includes ............. . (I) oral evidence and (2) all documents produced for the inspection of the court; such documents "" are called documentary evidence. " Based on this definition, and taken in conjunction with the fact that under s. 207-A the documents referred to in s. 207-A(3) are treated as material upon which the ' court might arrive at the conclusion that a prima facie case has been made against the accused, it was sub- mitted that there was no impropriety in referring to these documents as 'evidence'. We are not im- pressed by this argument. Perhaps it might not "' be a great objection that the expressions are defined in s .. 3 only for the purpose of Indian Evidence Act and this, we would add, is merely the dictionary meaning of the word. The more serious objection '!!
' is th1: use of this definition for the purpose of importing probative value to the documentary evidence which might be inadmissible or irrelevant or prohibited by law and in any event not proved so as to permit a court to look into them for basing any judicial decision apart from any statutory provision to the contrary. If the expression 'evidence' is used through- out the Criminal Procedure Code as meaning judicial evidence i. e. , oral evidence tested by cross-examination, if any and documentary evidence which has been proved and which has been held to be relevant and admissible, it would, to say the least, be a strange use 1963 Ramnarayan Morand another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Mor and another v. ·State of Maharashtra Ayyangar J. 1094 SUPREME COURT REPORTS [ 1964] of that word in the provision now under consideration that it means documents produced for "the inspec- tion of the Court".
If it is used merely "for the inspection of the court", it is obvious that the court could not on its terms base any finding on the con- tents of such a document, and in· fact that would have been the position but for the special provision contained ins. 207-A ands. 251-A. We have, there- fore, no hesitation in rejecting this submission also. ' This argument was presented in a slightly modi- ! tied form by suggesting that even if the Magistrate could not examine the accused with reference to those parts of the documents which could be held not t0 be 'proved', still if among the documents referred to in s. 173 there were some which required no proof as being either public documents or in regard to which proof was dispensed with by any special law, the Magistrate could examine the accused with reference to those matters which appeared against him in such documents. The precise object of this submission was to make it out that besides oral evidence under sub-s.
t 4), there could be other species of evidence Y which would be evidence "strictly so called, and that it could not have been the intention of the legislature to exclude such "evidence" from the content of that word in sub-s. (6). This argument must fail in the face of the scheme of the section. The whole scheme of s. 207-A proceeds on drawing a clear and sharp line of distinction between the two terms 'evidence' and 'documents' the latter meaning the documents referred to in s. 173 and that dichotomy is maintained throughout, admittedly twice, in sub-s. (6) and in sub-s. (7). When therefore 'documents' are referred to in sub-ss. (6) & 0), it is a reference to them en masse i. e. , the entirety of the documents referred to in s. 173 and by no possible construction of s. 207(6) can a distinction be drawn between the documents which prove themselves and those which require to be proved by oral evidence. Lastly, it was submitted that the provision was { ..
in the interests of the accused and that consequently .. - ' 5 S. C. R. SllPREME COURT REPORTS 1095 the words must receive a liberal and not a literal construction so as to subserve the underlying purpose viz. , that the accused should be in a position to explain the circumstances appearing against him, whether the circumstances appear in the oral evidence or in the documents, since the Magistrate was empowered to take into consideration both these as affording material for committing the accused. If the text of the statute is clear there might be no escape from the duty of the court to give effect to it. But the word 'evidence' in the context and even otherwise is incapable of the construction for which the respondent contends. If so, this argument has no basis to support it. If, however, there were an .
ambiguity, and the word was reasonably capable both of a narrower and a wider construction, the court would, no doubt, be justified in adopting that construction which would further the purpose of the provision and promote the cause of justice. In order to attract the applica- tion of this rule of construction, the court would have to be satisfied that the words if so construed should always operate in favour of the accused. What we have said earlier about the effect of an examination of the accused without there being 'eviden- ce' against him with reference to s. 342ll) of the Code would be apposite in this connection. It is in this context that we have the situation in the present case where the accused do not desire to be examined and are resisting the questions being put to them on the ground that such questions would lead them to give ~ answers before they are fully aware of the details of the prosecution case and the manner in which it is proposed to use the documents under s.
173 or the precise construction which they place on the contents of the documents on which they propose to rely .. The prosecution insists that it is in the interests of the accused that they should be examined, and the accused are asserting that their 'examination' at this stage is calculated to trap them into making state- ment which might be used to destroy their defence 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J. 1096 SUPREME COURT REPORTS [ 1964] at the trial.
Undoubtedly we are concerned in this appeal not with the facts of this prosecution, for that would be a matter for the Magistrate to consider as to whether or not he would 'examine' the accused and on what points he would 'examine' them, keep- ing in mind the purpose of the examination specified in the sub-section, but with the larger question as to the jurisdiction of the Magistrate to 'examine' the accused with reference to what is disclosed against them by the documents under s. 173 of the Code. The documents mentioned in s. 173( 4) might include some which can never be evidence against the accused at the trial, and yet if the respondent is right, the accused might be called on to explain the circum- stances against them in such documents, and here it must be noted, the explanation or statement of the accused even in answer to such questions would be evidence against him under s. 287 of the Code.
It would, in the circumstances, be manifest that the construction of the sub-section which the State urges for our acceptance is, to say the least, capable of prejudicing the accused, and consequently, even in y the event of there being an ambiguity in the meaning of the word 'evidence', is not one which the Court could accept. Nor are we satisfied that without such a power in the Magistrate to examine the accused, the accused would lose the chance of avoiding a committal by offering a reasonable explanation for the circumstances appearing in the documents.
After all, the Magi~trate is directed to look into the docu- ments in the light of the submissions made by the accused as regards their contents and it would not be unreasonable to hold that the intention of the legislature was that the accused should be examined with reference to what appears against him in evidence legally admissible before the court, while he is not to be required to commit himself by his answers in respect of matters which would be proved against him only at the trial and as regards which he would be examined later under s. 342(1) of the Code, and be examined about documents which may never be moved later. Interpreted otherwise the section - - 5 S. C. R. SUPREME COURT REPORTS 1097 would give a good chance for a fishing expedition and of modulating the prosecution case to destroy th~ accused's explanation at the appropriate stage.
It was however suggested that if an accused found it inconvenient "to answer any of the questions put to him, there being no legal obligation on the accused to do so, he might as well decline to answer them since he could not be held liable for refusing so to do. But this argument, however, ignores the fact that an inference adverse to the accused might be drawn from bis refusal to answer. Among the illustrations given in s. 114 of the Indian Evidence Act is one which reads: "The Court may presume- (h) "that, if a man refused to answer questions which he is not compelled to answer by law, the answer, if given, would be unfavourable to him·" , The court would, therefore, be justified in drawing this inference from his refusal to answer. Whether or not a Court would do so, it is certain that if the accused refuses to answer when examined by the Magis- trate at the committal stage, any explanation which he might offer at later stage could properly be charac- terised as an after-thought.
In the circumstances it would not be correct to assume that the exercise of the power at this stage by the Magistrate to question the accused might not result in serious prejudice to the accused. No doubt by the use of the expression 'if any' in the sub-clause the Magistrate is given a discretion to examine or not to examine the accused and the legislature may well have presumed that the discretion would be properly exercised, or could be the subject of complaint at a later stage if this were not done properly. Undoubtedly where the evidence is recorded under sub-s. (4) these considera- tions apply and establish the propriety and justice of the proceeding. But the question for co~sidera tion is that when the power is sought to be invoked where the Magistrate by virtue of the specific provi- sions of the statute is enabled to find a prirna facie case 1963 Ramnarayan Morand another v. State of Maharashtra Ayyangar J. 1963 Ramnarayan Mor and another v. State of Maharashtra Ayyangar J.
1963 December 16 1098 SUPREME COURT REPORTS [1964] by reference to unproved, untested and possibly inad- missible documents on which the prosecution proposes to rely, whether to such a case those considerations necessarily apply. If without evidence, properly so called, a Magistrate examines ·an accused, he would be converting himself into an investigating agency and there is therefore every possibility of the accused being prejudiced and that might be the very reason why the sub-section has been framed in a manner to avoid this result. The position is, of course, different under s. 251-A(2) where the examination is by virtue of the statute and so it stands in a class apart, and we are not concerned to consider whether an examination under that provision might prejudice the accused. We, therefore, hold that where there is no evi- dence recorded under sub-s. (4) of s. 207-A, the Ma- gistrate has no jurisdiction to examine an accused under s.
207-A(6) and consequently the Magistrate in the present case had no jurisdiction to direct the accused to appear before him for examination. We would accordingly allow the appeal and set aside the order of the Magistrate directing the accused to appear before him for being examined. ORDER Jn view of the Judgment of the majority, the appeal fails and is dismissed. THE STATE OF PUNJAB v. S. RATTAN SINGH (P. B. GAJENDRAGADKAR, K. SUBBA RAO, K. N. WANCHOO, J:C. SHAH AND RAGHUBAR DAYAL JJ. ) The Patiala Recovery of State Dues Act (Act IV of 2002 BK), ss. 4 and II-Scope of-Civil Court-Jurisdiction to decide if a person is defaulter. ~. / ' ' ! - ~ I Provincial Insolvency Act (5of1920), s. 4-Whether Insolvency . c.. 111·. Court can go behind decree. ...
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