Aslhing Alias Lhingjanong Vs. L.S. John and ors. - Court Judgment

Excerpt:
- [ b.p. sinha, c.j.,; j.c. shah,; k. subba rao,; m. hidayatullah and; n. rajagopal, jj.] 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 investigating officer furnished the accused persons with copies of documents which are required by s. 173(4) of the code of criminal procedure 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 i 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 revision 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.) that the legislature has used the expression "evidence" at three places in cl. (6) of s. 207a of the code of criminal procedure. 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 against him, the legislature has used the expression "in the evidence against him", which is not expressly qualified by reference to sub-s. (4) nor does any implication arise from the context which would suggest that it has a limited content. (ii)the legislature did not intend by using the expression "examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him" that the opportunity to be given to the accused for explaining circumstances appearing from the oral evidence. such a construction of the clause, by putting a restricted interpretation upon the meaning of the word 'evidence' would in many cases involve great prejudice to the accused. the circumstances appearing against the accused would in a large majority of cases be from the statements recorded under s. 161(3) under s. 164 and other documentary evidence referred to in s. 173(4) and if the accused is not to be given an opportunity to explain those circumstances, to a large extent the judicial character of the proceeding would be impaired. the accused may have a complete answer to the documents on which the prosecution seeks to rely. but if by the words used in cl. (6) the magistrate is prohibited from examining him in respect of those documents the provision might frequently operate oppressively against the accused. the scheme of s. 251a of the code which was brought on the statute book simultaneously with s. 207-a by act 26 of 1955, also furnishes an indication that in the examination of the accused for enabling him to explain circumstances appearing in the evidence against him, documents referred to in s. 173(4) cannot he excluded. (iii)section 207a(6) contemplates examination only for the purpose of explaining any circumstances appearing against the accused. declining to avail himself of such an opportunity and reserving his right to make a defence at the trial do not amount to refusal to answer a question and no presumption can arise under illustration (h) to s. 114 of the evidence act against such refusal. the scheme of cl. (6) of s. 207a is not the same as the scheme of s. 342 of the code of criminal procedure for the reason that under the latter section the court can ask the accused any general question to explain any circumstances appearing against him. (iv)normally in a criminal trial, the court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended 'code the legislature has in s. 207-a prescribed a special procedure in proceedings for commitment of the accused. the record consists of the oral evidence recorded under sub-s. (4) of s. 173, and it would be difficult to regard only those documents which are duly proved or which are admissible without proof as "evidence" within the meaning of cl. (6) and not the rest. section 3 of the evidence act also supports that proposition. the expression "evidence" as defined in s. 3 of the evidence act means and includes all statements which the court permits or requires to be made before it by witnesses and all documents produced for the inspection of the court. there is no restriction in this definition to documents which are duly proved by evidence. (per ayyangar and hidayatullah jj. (dissenting): the word 'evidence, in sub-s. (6) of s. 207a of the code of criminal procedure is confined to the oral evidence of the prosecution witnesses. the word 'evidence' occurs three times in this sub-section. in the opening words of the sub- section where it occurs first referring, as they do, specifically to the evidence recorded under sub-s. (4) the word is obviously used only in the sense of oral evidence recorded under sub-s. (4) together with the cross- examination and reexamination permitted by sub-s.- (5). this is followed by the words 'the magistrate has considered all the documents referred to in s. 173'. documents therefore are treated here as a distinct category of material distinct from "evidence" and the sub-section proceeds on the existence of a dichotomy between these two species of material which the magistrate has to take into account before ordering committal. if this dichotomy and this distinction between 'evidence" and documents underlie the texture of the entire subsection, it could not be disputed that the word 'evidence' on the second occasion when it occurs in sub-s.(6) has to be read as meaning only the evidence of witnesses examined under sub-s. (4). the last place where the word '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 omitting the accused persons for trial'. it is clear that here the word 'documents' denotes the documents referred to earlier namely those in s. 173 and these are again distinguished from 'evidence'. here also there cannot be any doubt that the word 'evidence' is a reference to the evidence recorded under sub-s. (4). sub-sections (4), (6) and (7) draw a clear and sharp distinction between 'evidence' and 'the documents' referred to in s. 173 of the code of criminal procedure. no importance should be attached 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' already referred to in the opening words of the subsection, namely that recorded under sub-s. (4). ramdas kikabhai v. state of bombay, a.i.r. 1960 bom. 124, not relied on. re macmanaways, [1951] a.c. 161, referred to. (ii)the magistrate would have no jurisdiction to examine an accused under s. 342(1) of the code (a) either when no oral evidence for prosecution has been recorded or (b) in respect of matters about which there is no evidence adduced in the sense in which the 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. the same principle applies as to the circumstances in which an accused can be examined by the magistrate under s. 207-a(6). where there is no evidence recorded under sub-s.(4) of s. 207-a, the magistrate has no jurisdiction to examine an accused under s. 207-a(6). in the present case the magistrate has no jurisdiction to direct the accused to appear before him for examination. bachchan lai v. state, a.i.r. 1957 all. 184 and bahawala v. crow n, i.l.r. 6 lah. 183, relied on. (iii)the accused should be examined under s. 207a(6) 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. interpreted otherwise the section would give a good chance for fishing expedition and of modulating the prosecution case to destroy the accused's explanation at the appropriate stage. the accessed cannot be asked under sub- s. (6) with reference to documents mentioned in s. 173(4) of the code unless those are legally proved. 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 accessed being prejudiced and that might be the very reason why the sub-section has been framed in a manner to avoid the result. the position is, of course different under s. 251a(2) where the examination is by virtue of the statute and so it stands in a class apart. (iv)the magistrate has no jurisdiction to ask question under sub-s. (6) with the reference to documents mentioned in s. 173(4) of the code as they are not evidence under sub-s. (4) of s. 207-a of the code. the expression 'evidence' as defined in s. 3 of the evidence act gives merely the dictionary meaning of. the word and it has no application for interpreting the word 'evidence' in sub-s.(6). the expression 'evidence' is used throughout the criminal procedure as meaning judicial evidence i.e. oral evidence tested by cross-examination if any and documents which have been proved and which are relevant and admissible. the expression 'documents produced for inspection of the court' under s. 3 of the evidence act means merely "for inspection of the court" and the court cannot base its findings on the contents of such documents. (v)the court will be entitled under illustration (h) to s. 114 of the evidence act to draw adverse inference for refusal to answer question put under s. 207a(6) to the accused. (vi)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." re macmanaway in re, [1951] a.c. 161, relied on.  s. murtaza fazal ali, j.1. in this election appeal the only point for determination is whether at the time when respondent no. 1 filed his nomination paper he held a subsisting contract with the government for widening the plp road. while it is true that there was such a contract in existence prior to 30 .11.1979, respondent no. 1 wrote a letter on 30.11.1979 to the concerned executive engineer stating that he was closing the said contract. the last date for filing nomination was 10.12.1979. it is argued that the contents of the said letter does not have the effect of putting an end to the contract. after going through the contents of the letter it is absolutely clear that the contractor unilaterallyput an end to the contract and informed the department concerned accordingly and also he had resigned from the contractor's list of pwd manipur. thus after this letter the contract came to an end by breach and the contract was no longer subsisting. mr. rangarajan has submitted some very nice and delicate questions for consideration. one of them being that until and unless the letter is accepted by the authority the contract would continue and thus the respondent would suffer from the disqualification. in our opinion having regard to the contents of the letter it is not , possible to accept the argument of mr. rangarajan that the contract was subsisting. the acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages. no other point is raised before us. we do not find any merit in this appeal and it is dismissed without any order as to costs.