JUDGMENT Suhrawardy, J.
1. This rule is directed against an order of the Chief Presidency Magistrate of Calcutta committing the accused to the sessions. The ground on which we are invited to quash the commitment is that the petitioners were not given an opportunity to cross-examine the witnesses for the prosecution. In order to understand the ground upon which this revision application is based, it is necessary to state the facts. The accused were charged under Sections 420 and 120-B, I.P.C. The case against one of the persons who were originally placed on trial was withdrawn under Section 494, Criminal P.C., end he was examined as the first witness in the case. In the course of the examination of this witness the learned Magistrate intimated that on the completion of the evidence he would commit the accused to the sessions. The learned Counsel appearing for the accused then asked for permission to reserve cross-examination at that stage and to cross-examine at a later stage. The petitioners in their petition say that on such request being made the learned Magistrate remarked that he would consider the application later. But the Magistrate in his explanation says that he refused to grant the prayer. We take it that that was so and the prayer for reserving cross-examination was refused. It appears from an examination of the record that after each witness was examined the defence was asked to cross-examine him and on their declining to do so, there is a note made by the Magistrate at the end of the examination of each witness that cross-examination was declined. The examination of the witnesses went over several days the last batch of 25 witnesses having been examined on 4th February 1929. Thereafter the accused were examined under Section 342 and charge was framed. On that day the Magistrate passed the following order:
Four accused are discharged. Remainder will be committed to the High Court Sessions under Sections 420, 120-B and 511, I.P.C. tomorrow.
2. On the following day the order of commitment was formally passed. On 4th February an application was made on behalf of the accused for permission to cross-examine the approver namely, the first witness and some other witnesses before commitment. This application was rejected by the Magistrate with the following order:
The correct time to cross-examine has passed. I do not think it necessary at this stage to allow the prayer.
3. The accused were committed to take their trial at the High Court Sessions which is now sitting and their case appears in the list for the present Sessions. On 8th February this rule was obtained from us for setting' aside the commitment on the ground stated above. It is contended on behalf of the petitioners that the Magistrate was wrong in rejecting their application on 4th February, and refusing to grant them permission to cross-examine some of the witnesses for the prosecution before committing them to the Sessions.
4. In considering the point raised before us I should like first to refer to the law as embodied in the Criminal Procedure Code before commenting on the case law on the subject. It may safely be assumed that Chap. 18, Criminal P.C., dealing with enquiry into casestriable by Court of Session is complete in itself and lays down the procedure to be followed in such an enquiry as do chapters relating to trials of summons cases and warrant cases. It cannot be argued that the provisions of these chapters are interchangeable and that the provisions appearing in a particular chapter relating to " trial " can be imported safely into that relating to "enquiry." The only section which deals with examination of witnesses in an enquiry into cases triable by the Court of Sessions is Section 208. Clause1 of that section says:
When the accused appears or is brought before the Magistrate he shall proceed to hear the complainant, if any, and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused or as may be called by the Magistrate.
5. The course to be followed by the Magistrate in recording the evidence under that clause is what is indicated afterwards in the sections under that chapter. The second clause says that the accused shall be at liberty to cross-examine the witnesses for the prosecution and in such case the prosecutor may re-examine them. Clause 3 is to the effect that if the complainant or the accused applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing the Magistrate shall issue such process unless he deems it unnecessary to do so. Section 209 indicates that when the evidence has been recorded in accordance with Clauses (1) and (3), Section 208, the Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself. This section enables the Magistrate to discharge the accused after recording evidence for the parties under Section 208(1) and the evidence of witnesses called under Clause (3) if he is not satisfied that there are sufficient grounds for committing him to the Sessions. But if the Magistrate is satisfied that there are sufficient grounds for committing the accused he shall frame a charge under Section 210. Under Section 211 the accused shall be required to give a list of witnesses whom he wishes to be summoned to give evidence at his trial before the Sessions Court. The Magistrate may in his discretion summon any witness named in the list under Section 212.
6. Under Section 213, the Magistrate may make an order after all the preliminaries have been observed committing the accused to the Sessions or if after hearing the witnesses for the defence he is satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. This is all the procedure laid down in Chap. 18 for the examination of the witnesses and the conduct of the proceedings before commitment. We are asked in this case to quash the commitment in the exercise of our power under Section 439 read with Section 435, Criminal P.C., and this power in a case like the present should be exercised in accordance with the provisions of Section 215, Criminal P.C., which enables the High Court to quash a conviction only on a point of law. If the Magistrate has contravened any provision of law we are certainly entitled and we ought to set aside the commitment on the ground. But if on the other hand he has not violated any provision of the law and has only erred in the exercise of the discretion vested in him the High Court will seldom interfere in such a ease.
7. Section 208 does not say of reservation of cross-examination of witnesses for the prosecution till a future occasion. The ordinary rule of examination of witnesses in Courts is that after a witness is examinated he is cross-examined and if necessary, re-e0xamined (S. 138, Evidence Act). In civil Courts there is no departure from this rule. But in the administration of criminal law it has been relaxed in the trial of warrant cases where under Section 256, Criminal P.C., the accused after the charge has been framed against him shall be asked if he wishes to cross-examine any witness for the prosecution and if he says that he so wishes the witnesses named by him shall be recalled. This procedure has not been incorporated in Chap. 18 relating to enquiry into eases triable by the Court of Sessions. Clause (2), Section 208 does no more than indicate the ordinary rule as to how examination of witnesses should be conducted. After witnesses for the prosecution have been examined the accused shall be at liberty to cross-examine them and the prosecutor to re-examine them. The wording of that clause does not lend support to the view that it assumes that the accused shall be at liberty to cross-examine the witnesses for the prosecution after all the witnesses have been examined in chief. Clause (1), Section 208, refers to the examination of witnesses produced by the prosecution without the processes of the Court; and Clause (3) refers to compelling the attendance of witnesses under process from Court; otherwise there is no difference between the two clauses as regards the procedure to be followed under either of them. If it was the intention of the legislature to insert in Chap. 18, a provision similar to what is contained in Section 256, Chap. 21, the several clauses of Section 208 would have been differently worded. In the absence of any such enactment in Chap. 18 and in view of the express enactment to that effect in Chap. 21 relating to trial of warrant cases, it will not be wrong to assume that the legislature did not intend to give the accused the right to reserve cross-examination in a case triable by a Court of Sessions. I should not like to lay down that a Magistrate is not justified in allowing the accused even in a trial under Chap. 18 to reserve cross-examination for a future occasion except in the special circumstances of a case and in the interest of justice. That will not be under any express enactment but in the exercise of the inherent power of the Court in administering justice.
8. In the present case the Magistrate asked the accused to cross-examine each witness before he left the box and they persistently refused to cross-examine the witnesses. At the end of the examination of all the witnesses they wanted to cross-examine some of them but the Magistrate refused their prayer. I invited Mr. Chatterjee who conducted the case on behalf of the petitioners to point out any express provision of law which gives him the right to demand cross-examination of witnesses in an enquiry under Chap. 18 after all the witnesses have been examined. He pointed out Clause (2), Section 213, which says that if the Magistrate, after hearing the witnesses for the defence is satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. The learned Counsel's contention is that the expression "witnesses for defence" includes not only the witnesses who are examined as defence witnesses but also the witnesses for the prosecution who are cross-examined. This seems to me to be a forced construction of the plain words of the section. Beading Sections 211, 212, 213 together it would be clear beyond any possibility of doubt that the witnesses for the defence referred to in Clause (2) Section 213, are witnesses whom the Court may in its discretion summon and examine under Section 212 out of the list of witnesses given by the accused under Section 211 to be examined on his behalf at the trial in the Court of Sessions. There being 'no express provision of the law entitling the accused to reserve cross-examination till after the examination of all the witnesses under Chapter 18 has been completed, the learned Chief Presidency Magistrate in my judgment has committed no error of law.
9. In this connexion several cases have been referred to at the Bar which in the view of the law I have taken does not seem necessary to examine minutely, but as they have laid down certain generalizations I should like to say a few words with regard to them. The point that has now been raised before us did not come up directly for examination in any of the cases of this Court except in Phanindar Nath Mitra v. Emperor [1909] 36 Cal. 48. There witnesses for the prosecution were examined but no attempt was made by the accused to cross-examine them. But an application to cross-examine the witnesses was made to the Magistrate after the prosecution had closed its case and the Magistrate had decided to commit them to the High Court. It seems that in that case the Magistrate had originally proceeded with the trial of the case as before himself. But at a certain stage he decided to commit the accused to the Court of Sessions. As the application was made after he had so decided, the learned Judges were of opinion that Section 347, Criminal P.C. applied and under that section if it appeared to the Magistrate at any stage of the proceedings that the case was one which ought to be tried by the Court of Sessions he should commit the accused under the provisions relating to commitment. The learned Judges seem to be of opinion that as soon as the Magistrate has decided that the case should be committed to the sessions he shall stop further proceedings and commit the accused to the sessions at once. The learned Judges laid some stress upon the words "he shall stop further proceedings" which appeared in the Code but which have now been omitted by the Amending Act of 1923. In that view they held that the Magistrate need not therefore follow the procedure laid down in Section 208. I am unable to agree in this construction of Section 347. It is possible, and it generally so happens, that the Magistrate starts a ease before him with a view to try it himself; but in the midst of the trial when certain facts have been disclosed he makes up his mind to commit the accused to the sessions. When the trial was commenced before him he treated it as one of a warrant case and the accused exercised the right to reserve cross-examination after charge. If in the midst of the trial or immediately after finishing the evidence for the prosecution the Magistrate decides to commit the accused to the sessions it does not seem just to the accused that he should at that stage, because the Magistrate has come to a certain decision, lose the right which he had before such decision. In such a case Section 347 should not be held as compelling the Magistrate to refuse to allow the accused to cross-examine the witnesses and to commit at once the case to the sessions. This view has been taken in a recent case to which I will presently refer. Phanindra's case does not help either party; but it lends some support to the view that the Magistrate is not bound to give facilities to the accused for cross examination after the witnesses for the prosecution have been examined and no attempt is made by the accused to cross examine them earlier. This case has been disapproved and in my opinion rightly, in The Sessions Judge of Coimbatore v. Irumuddi Kumara Kangaya Mantridiyad [1913] 36 Mad. 321.
10. A strong case in favour of the petitioners is the case of Jogendra Nath v. Moti Lal [1912] 39 Cal. 885, which is a reverse case to the present. In that case the Magistrate after drawing up the charge in a case triable by the Court of Sessions allowed the accused to cross-examine the prosecution witnesses and thereafter acquitted him. Against the order of acquittal or discharge the prosecutor moved this Court. The learned Judges discharged the rule holding that the Magistrate had the right to allow the accused to cross-examine the witnesses for the prosecution even after charge under Section 213(2), Criminal P.C. Their Lordships observed:
No doubt the Sub-section refers to witnesses for the defence; but in our opinion these words are wide enough to cover evidence extracted by cross-exaiaination from the witnesses for the prosecution.
11. For the reasons given above, with great respect I am unable to adopt the construction put by the learned Judges on Section 213(2), Criminal P.C. In that case the question as to whether the Magistrate is bound to give opportunity to the accused to cross-examine the witnesses for the prosecution after they have all been examined-in-chief, before or after charge, does not seem to have been raised and discussed. In fact the reliance put by the learned Judges upon Sub-section (2), Section 213 shows that they were of opinion that it was in the discretion of the Magistrate to give this opportunity to the accused, in view of the provisions of Section 212, Criminal P.C. In that case reference has been made to In the matter of Surya Narain Singh [1901] 5 C.W. N. 110. That was a case in which the application was made for the transfer of an enquiry from the Court of the Magistrate on the ground amongst others that the Magistrate had refused permission to the accused to cross-examine the witnesses for the prosecution.
12. The question as to whether the Magistrate is bound to do so was not raised or discussed. But it was assumed that the accused should have been given an opportunity of cross-examining the witnesses for the prosecution with a view to obtaining a cancellation of the charge. In that case the learned Judges expressed the view that after the drawing up of the charge the Magistrate is not bound to commit the accused but that he can also discharge him. The point before us was not there raised and as it has not been laid down that it is the duty of the Magistrate to allow an opportunity to the accused for cross-examining the witnesses for the prosecution, though he may do so, as reference in that case to Section 213(2) shows, I am not prepared to follow it as an authority on the question before us. A much recent case on this point is the case of Jyotsna Nath Sikdar v. Emperor . The decision in that case supports the view that I have ventured to take with regard to the duty and discretion of Magistrates in inquiries under Chap. 18. There the trial was proceeded with as in a warrant case and before charge was framed and the Magistrate decided to commit the accused to the Court of Sessions the accused applied to cross-examine the witnesses for the prosecution. This prayer was refused and the learned Judges held that in the circumstances of that particular case the Magistrate had no discretion in the matter having regard to the fact that the application to cross-examine was made:
before the charge was framed and before the Magistrate had decided to commit the accused to the Court of Sessions.
13. But he should have allowed the accused to cross-examine the prosecution witnesses. The learned Judges refused to follow the case of Phanindra Nath Hitter v. Emperor [1909] 36 Cal. 48, as also the case of Fazarali v. Mazaharulla [1912] 16 C.L.J. 45 on the construction of Section 347. The last mentioned case was also a case of transfer. There is an observation there of the learned Judges distinguishing Phanindra Nath Mitra's case [1909] 36 Cal. 48, that if the accused had applied after all the witnesses for the prosecution had been examined to cross-examine them he should have had no right under Section 347 but as in that case the application was made before the prosecution case was absolutely closed and all the witnesses had been examined, the accused should have been granted the indulgence of cross-examining the witnesses. The learned Judges cited no authority and did not discuss the several sections of the Code bearing upon this question. For my part I do not see any difference in the application of law between a case where the accused asked permission to cross-examine witnesses for the prosecution after they had all been examined and that in which he asks for such permission after some of them have been examined. It seems to me that decisions like these are only calculated to confuse as they seem to usurp the function of the legislature. The case of Jyotsna Nath Sikdar v. Emperor is not also relevant as in that case the application for cross-examination was made before the charge was framed and before the Magistrate had decided to commit the accused to the Court of Sessions. In the case before us the Magistrate had on the very first day declared that he would commit the accused to the sessions. The view that I have ventured to take finds support in a decision of the Patna High Court in the case of Sasdgt Mian v. Emperor A.I.R. 1927 Pat. 243 where it has been distinctly held that in an enquiries into oases triable by a Court of Session the accused has no right to reserve cross-examination. In that case too the defence counsel had declined to cross-examine the witnesses after each of them had been examined. I should like to quote that portion of the judgment with which I entirely agree:
The ordinary rule as laid down in the Evidence Act is that the witnesses will be examined-in-chief, cross-examined and reexamined. There is no express provision for postponing the cross-examination of witnesses till all prosecution witnesses are examined-in-chief. A special provision has been made under certain circumstances with respect to trials in warrant cases (Chap. 21) entitling the accused to postpone the cross-examination of the witnesses till a certain stage. No such provision has been made with respect to an enquiry into the cases triable by a Court of Sessions in Chap. 18 of the Code. The Magistrate, however, to my mind has the discretion to allow the accused to postpone the cross-examination of witnesses in suitable circumstances.
14. In the view that appeals to me as stated above this Rule fails and is discharged.
Graham, J.
15. The Rule in this case was issued to show cause why the petitioners should not be given an opportunity of cross-examining the witnesses for the prosecution before commitment to the sessions.
16. The facts are shortly these:
17. The petitioners were sent up for trial before the Chief Presidency Magistrate on charges under Sections 420 and 120-B, Penal Code. At the outset the learned Chief Presidency Magistrate intimated that he would upon the completion of the evidence commit the case to the High Court Sessions. Thereafter counsel for the accused is said to have verbally prayed for permission to cross-examine the witnesses for the prosecution, and it is said the learned Magistrate remarked that he would consider the application later. There appears to be some doubt about this, however, as the learned Magistrate says in his explanation that the application was refused, and we may proceed on that basis. The record shows that 10 Witnesses were examined for the prosecution on different dates from 20th December to 25th January, and on 4th February 1925 more prosecution witnesses were examined. In the case of each witness there is a note at the foot of the deposition that cross-examination was declined. On the last mentioned date, however, an application was made by the accused G.V. Raman praying for permission to cross-examine the approver and some other witnesses before commitment to the Sessions Court. That application was rejected by the Magistrate on the ground that the time for cross-examination had passed, and that he did not think it necessary at that stage to allow the prayer. It is this order which is now assailed on behalf of the petitioners, and the contention shortly is that the learned Magistrate had no option or discretion in the matter, and that he was bound to allow the accused to cross-examine the prosecution witnesses so as to give them an opportunity of breaking down the case against them and so obviating the necessity of their being committed to the Court of Sessions.
18. In my opinion this contention is without substance. An accused certainly has under Section 208(2), Criminal P.C., a right to cross-examine the witnesses for the prosecution, but he must exercise that right at the proper time, that is to say, after the close of the examination-in-chief. That is the ordinary construction to be put upon the section, and it finds support in Section 138, Evidence Act.
19. Mr. Chatterjee for the petitioner urged that inasmuch as Section 208, Criminal P.C. does not say when the right of cross-examination is to be exercised, it is open to the accused to exercise it at any time, and that he may, if he so desires, reserve it until after all the prosecution witnesses have been examined. There is nothing, however, in the section to Warrant this view. The right if exercised must be exercised in the normal manner.
20. It cannot be argued that because in the case of warrant trials an accused is allowed under Section 256, Criminal P.C., to reserve his cross-examination, he must necessarily have the same privilege when; an inquiry is held under Chap. 18. Indeed the very fact that that chapter contains no provision similar to that in Section 256(1) is an argument for holding that no such right exists. It may be inferred that the omission was intentional and not a mere accident. Moreover the record plainly shows that the accused declined to cross-examine, and they cannot afterwards revive that right and claim to exercise it at any time they please. The Magistrate might, if he considered it necessary or desirable, have allowed cross-examination, but it cannot be held that in refusing he committed any error of law.
21. It is to be borne in mind moreover that under Section 347, Criminal P.C., the Magistrate is empowered at any stage of the inquiry to commit for trial, which furnishes an additional reason for holding that the claim now preferred by the petitioners is not well founded. It seems to me that they are claiming a right which has not been given anywhere in the Code. Certain authorities were cited before us on their behalf and these have been dealt with by my learned brother. It is not therefore necessary for me to refer to them.
22. I agree that the Rule fails and should be discharged.
JUDGMENT Suhrawardy, J.
1. This rule is directed against an order of the Chief Presidency Magistrate of Calcutta committing the accused to the sessions. The ground on which we are invited to quash the commitment is that the petitioners were not given an opportunity to cross-examine the witnesses for the prosecution. In order to understand the ground upon which this revision application is based, it is necessary to state the facts. The accused were charged under Sections 420 and 120-B, I.P.C. The case against one of the persons who were originally placed on trial was withdrawn under Section 494, Criminal P.C., end he was examined as the first witness in the case. In the course of the examination of this witness the learned Magistrate intimated that on the completion of the evidence he would commit the accused to the sessions. The learned Counsel appearing for the accused then asked for permission to reserve cross-examination at that stage and to cross-examine at a later stage. The petitioners in their petition say that on such request being made the learned Magistrate remarked that he would consider the application later. But the Magistrate in his explanation says that he refused to grant the prayer. We take it that that was so and the prayer for reserving cross-examination was refused. It appears from an examination of the record that after each witness was examined the defence was asked to cross-examine him and on their declining to do so, there is a note made by the Magistrate at the end of the examination of each witness that cross-examination was declined. The examination of the witnesses went over several days the last batch of 25 witnesses having been examined on 4th February 1929. Thereafter the accused were examined under Section 342 and charge was framed. On that day the Magistrate passed the following order:
Four accused are discharged. Remainder will be committed to the High Court Sessions under Sections 420, 120-B and 511, I.P.C. tomorrow.
2. On the following day the order of commitment was formally passed. On 4th February an application was made on behalf of the accused for permission to cross-examine the approver namely, the first witness and some other witnesses before commitment. This application was rejected by the Magistrate with the following order:
The correct time to cross-examine has passed. I do not think it necessary at this stage to allow the prayer.
3. The accused were committed to take their trial at the High Court Sessions which is now sitting and their case appears in the list for the present Sessions. On 8th February this rule was obtained from us for setting' aside the commitment on the ground stated above. It is contended on behalf of the petitioners that the Magistrate was wrong in rejecting their application on 4th February, and refusing to grant them permission to cross-examine some of the witnesses for the prosecution before committing them to the Sessions.
4. In considering the point raised before us I should like first to refer to the law as embodied in the Criminal Procedure Code before commenting on the case law on the subject. It may safely be assumed that Chap. 18, Criminal P.C., dealing with enquiry into casestriable by Court of Session is complete in itself and lays down the procedure to be followed in such an enquiry as do chapters relating to trials of summons cases and warrant cases. It cannot be argued that the provisions of these chapters are interchangeable and that the provisions appearing in a particular chapter relating to " trial " can be imported safely into that relating to "enquiry." The only section which deals with examination of witnesses in an enquiry into cases triable by the Court of Sessions is Section 208. Clause1 of that section says:
When the accused appears or is brought before the Magistrate he shall proceed to hear the complainant, if any, and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused or as may be called by the Magistrate.
5. The course to be followed by the Magistrate in recording the evidence under that clause is what is indicated afterwards in the sections under that chapter. The second clause says that the accused shall be at liberty to cross-examine the witnesses for the prosecution and in such case the prosecutor may re-examine them. Clause 3 is to the effect that if the complainant or the accused applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing the Magistrate shall issue such process unless he deems it unnecessary to do so. Section 209 indicates that when the evidence has been recorded in accordance with Clauses (1) and (3), Section 208, the Magistrate shall if he finds that there are not sufficient grounds for committing the accused person for trial record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself. This section enables the Magistrate to discharge the accused after recording evidence for the parties under Section 208(1) and the evidence of witnesses called under Clause (3) if he is not satisfied that there are sufficient grounds for committing him to the Sessions. But if the Magistrate is satisfied that there are sufficient grounds for committing the accused he shall frame a charge under Section 210. Under Section 211 the accused shall be required to give a list of witnesses whom he wishes to be summoned to give evidence at his trial before the Sessions Court. The Magistrate may in his discretion summon any witness named in the list under Section 212.
6. Under Section 213, the Magistrate may make an order after all the preliminaries have been observed committing the accused to the Sessions or if after hearing the witnesses for the defence he is satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. This is all the procedure laid down in Chap. 18 for the examination of the witnesses and the conduct of the proceedings before commitment. We are asked in this case to quash the commitment in the exercise of our power under Section 439 read with Section 435, Criminal P.C., and this power in a case like the present should be exercised in accordance with the provisions of Section 215, Criminal P.C., which enables the High Court to quash a conviction only on a point of law. If the Magistrate has contravened any provision of law we are certainly entitled and we ought to set aside the commitment on the ground. But if on the other hand he has not violated any provision of the law and has only erred in the exercise of the discretion vested in him the High Court will seldom interfere in such a ease.
7. Section 208 does not say of reservation of cross-examination of witnesses for the prosecution till a future occasion. The ordinary rule of examination of witnesses in Courts is that after a witness is examinated he is cross-examined and if necessary, re-e0xamined (S. 138, Evidence Act). In civil Courts there is no departure from this rule. But in the administration of criminal law it has been relaxed in the trial of warrant cases where under Section 256, Criminal P.C., the accused after the charge has been framed against him shall be asked if he wishes to cross-examine any witness for the prosecution and if he says that he so wishes the witnesses named by him shall be recalled. This procedure has not been incorporated in Chap. 18 relating to enquiry into eases triable by the Court of Sessions. Clause (2), Section 208 does no more than indicate the ordinary rule as to how examination of witnesses should be conducted. After witnesses for the prosecution have been examined the accused shall be at liberty to cross-examine them and the prosecutor to re-examine them. The wording of that clause does not lend support to the view that it assumes that the accused shall be at liberty to cross-examine the witnesses for the prosecution after all the witnesses have been examined in chief. Clause (1), Section 208, refers to the examination of witnesses produced by the prosecution without the processes of the Court; and Clause (3) refers to compelling the attendance of witnesses under process from Court; otherwise there is no difference between the two clauses as regards the procedure to be followed under either of them. If it was the intention of the legislature to insert in Chap. 18, a provision similar to what is contained in Section 256, Chap. 21, the several clauses of Section 208 would have been differently worded. In the absence of any such enactment in Chap. 18 and in view of the express enactment to that effect in Chap. 21 relating to trial of warrant cases, it will not be wrong to assume that the legislature did not intend to give the accused the right to reserve cross-examination in a case triable by a Court of Sessions. I should not like to lay down that a Magistrate is not justified in allowing the accused even in a trial under Chap. 18 to reserve cross-examination for a future occasion except in the special circumstances of a case and in the interest of justice. That will not be under any express enactment but in the exercise of the inherent power of the Court in administering justice.
8. In the present case the Magistrate asked the accused to cross-examine each witness before he left the box and they persistently refused to cross-examine the witnesses. At the end of the examination of all the witnesses they wanted to cross-examine some of them but the Magistrate refused their prayer. I invited Mr. Chatterjee who conducted the case on behalf of the petitioners to point out any express provision of law which gives him the right to demand cross-examination of witnesses in an enquiry under Chap. 18 after all the witnesses have been examined. He pointed out Clause (2), Section 213, which says that if the Magistrate, after hearing the witnesses for the defence is satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused. The learned Counsel's contention is that the expression "witnesses for defence" includes not only the witnesses who are examined as defence witnesses but also the witnesses for the prosecution who are cross-examined. This seems to me to be a forced construction of the plain words of the section. Beading Sections 211, 212, 213 together it would be clear beyond any possibility of doubt that the witnesses for the defence referred to in Clause (2) Section 213, are witnesses whom the Court may in its discretion summon and examine under Section 212 out of the list of witnesses given by the accused under Section 211 to be examined on his behalf at the trial in the Court of Sessions. There being 'no express provision of the law entitling the accused to reserve cross-examination till after the examination of all the witnesses under Chapter 18 has been completed, the learned Chief Presidency Magistrate in my judgment has committed no error of law.
9. In this connexion several cases have been referred to at the Bar which in the view of the law I have taken does not seem necessary to examine minutely, but as they have laid down certain generalizations I should like to say a few words with regard to them. The point that has now been raised before us did not come up directly for examination in any of the cases of this Court except in Phanindar Nath Mitra v. Emperor [1909] 36 Cal. 48. There witnesses for the prosecution were examined but no attempt was made by the accused to cross-examine them. But an application to cross-examine the witnesses was made to the Magistrate after the prosecution had closed its case and the Magistrate had decided to commit them to the High Court. It seems that in that case the Magistrate had originally proceeded with the trial of the case as before himself. But at a certain stage he decided to commit the accused to the Court of Sessions. As the application was made after he had so decided, the learned Judges were of opinion that Section 347, Criminal P.C. applied and under that section if it appeared to the Magistrate at any stage of the proceedings that the case was one which ought to be tried by the Court of Sessions he should commit the accused under the provisions relating to commitment. The learned Judges seem to be of opinion that as soon as the Magistrate has decided that the case should be committed to the sessions he shall stop further proceedings and commit the accused to the sessions at once. The learned Judges laid some stress upon the words "he shall stop further proceedings" which appeared in the Code but which have now been omitted by the Amending Act of 1923. In that view they held that the Magistrate need not therefore follow the procedure laid down in Section 208. I am unable to agree in this construction of Section 347. It is possible, and it generally so happens, that the Magistrate starts a ease before him with a view to try it himself; but in the midst of the trial when certain facts have been disclosed he makes up his mind to commit the accused to the sessions. When the trial was commenced before him he treated it as one of a warrant case and the accused exercised the right to reserve cross-examination after charge. If in the midst of the trial or immediately after finishing the evidence for the prosecution the Magistrate decides to commit the accused to the sessions it does not seem just to the accused that he should at that stage, because the Magistrate has come to a certain decision, lose the right which he had before such decision. In such a case Section 347 should not be held as compelling the Magistrate to refuse to allow the accused to cross-examine the witnesses and to commit at once the case to the sessions. This view has been taken in a recent case to which I will presently refer. Phanindra's case does not help either party; but it lends some support to the view that the Magistrate is not bound to give facilities to the accused for cross examination after the witnesses for the prosecution have been examined and no attempt is made by the accused to cross examine them earlier. This case has been disapproved and in my opinion rightly, in The Sessions Judge of Coimbatore v. Irumuddi Kumara Kangaya Mantridiyad [1913] 36 Mad. 321.
10. A strong case in favour of the petitioners is the case of Jogendra Nath v. Moti Lal [1912] 39 Cal. 885, which is a reverse case to the present. In that case the Magistrate after drawing up the charge in a case triable by the Court of Sessions allowed the accused to cross-examine the prosecution witnesses and thereafter acquitted him. Against the order of acquittal or discharge the prosecutor moved this Court. The learned Judges discharged the rule holding that the Magistrate had the right to allow the accused to cross-examine the witnesses for the prosecution even after charge under Section 213(2), Criminal P.C. Their Lordships observed:
No doubt the Sub-section refers to witnesses for the defence; but in our opinion these words are wide enough to cover evidence extracted by cross-exaiaination from the witnesses for the prosecution.
11. For the reasons given above, with great respect I am unable to adopt the construction put by the learned Judges on Section 213(2), Criminal P.C. In that case the question as to whether the Magistrate is bound to give opportunity to the accused to cross-examine the witnesses for the prosecution after they have all been examined-in-chief, before or after charge, does not seem to have been raised and discussed. In fact the reliance put by the learned Judges upon Sub-section (2), Section 213 shows that they were of opinion that it was in the discretion of the Magistrate to give this opportunity to the accused, in view of the provisions of Section 212, Criminal P.C. In that case reference has been made to In the matter of Surya Narain Singh [1901] 5 C.W. N. 110. That was a case in which the application was made for the transfer of an enquiry from the Court of the Magistrate on the ground amongst others that the Magistrate had refused permission to the accused to cross-examine the witnesses for the prosecution.
12. The question as to whether the Magistrate is bound to do so was not raised or discussed. But it was assumed that the accused should have been given an opportunity of cross-examining the witnesses for the prosecution with a view to obtaining a cancellation of the charge. In that case the learned Judges expressed the view that after the drawing up of the charge the Magistrate is not bound to commit the accused but that he can also discharge him. The point before us was not there raised and as it has not been laid down that it is the duty of the Magistrate to allow an opportunity to the accused for cross-examining the witnesses for the prosecution, though he may do so, as reference in that case to Section 213(2) shows, I am not prepared to follow it as an authority on the question before us. A much recent case on this point is the case of Jyotsna Nath Sikdar v. Emperor . The decision in that case supports the view that I have ventured to take with regard to the duty and discretion of Magistrates in inquiries under Chap. 18. There the trial was proceeded with as in a warrant case and before charge was framed and the Magistrate decided to commit the accused to the Court of Sessions the accused applied to cross-examine the witnesses for the prosecution. This prayer was refused and the learned Judges held that in the circumstances of that particular case the Magistrate had no discretion in the matter having regard to the fact that the application to cross-examine was made:
before the charge was framed and before the Magistrate had decided to commit the accused to the Court of Sessions.
13. But he should have allowed the accused to cross-examine the prosecution witnesses. The learned Judges refused to follow the case of Phanindra Nath Hitter v. Emperor [1909] 36 Cal. 48, as also the case of Fazarali v. Mazaharulla [1912] 16 C.L.J. 45 on the construction of Section 347. The last mentioned case was also a case of transfer. There is an observation there of the learned Judges distinguishing Phanindra Nath Mitra's case [1909] 36 Cal. 48, that if the accused had applied after all the witnesses for the prosecution had been examined to cross-examine them he should have had no right under Section 347 but as in that case the application was made before the prosecution case was absolutely closed and all the witnesses had been examined, the accused should have been granted the indulgence of cross-examining the witnesses. The learned Judges cited no authority and did not discuss the several sections of the Code bearing upon this question. For my part I do not see any difference in the application of law between a case where the accused asked permission to cross-examine witnesses for the prosecution after they had all been examined and that in which he asks for such permission after some of them have been examined. It seems to me that decisions like these are only calculated to confuse as they seem to usurp the function of the legislature. The case of Jyotsna Nath Sikdar v. Emperor is not also relevant as in that case the application for cross-examination was made before the charge was framed and before the Magistrate had decided to commit the accused to the Court of Sessions. In the case before us the Magistrate had on the very first day declared that he would commit the accused to the sessions. The view that I have ventured to take finds support in a decision of the Patna High Court in the case of Sasdgt Mian v. Emperor A.I.R. 1927 Pat. 243 where it has been distinctly held that in an enquiries into oases triable by a Court of Session the accused has no right to reserve cross-examination. In that case too the defence counsel had declined to cross-examine the witnesses after each of them had been examined. I should like to quote that portion of the judgment with which I entirely agree:
The ordinary rule as laid down in the Evidence Act is that the witnesses will be examined-in-chief, cross-examined and reexamined. There is no express provision for postponing the cross-examination of witnesses till all prosecution witnesses are examined-in-chief. A special provision has been made under certain circumstances with respect to trials in warrant cases (Chap. 21) entitling the accused to postpone the cross-examination of the witnesses till a certain stage. No such provision has been made with respect to an enquiry into the cases triable by a Court of Sessions in Chap. 18 of the Code. The Magistrate, however, to my mind has the discretion to allow the accused to postpone the cross-examination of witnesses in suitable circumstances.
14. In the view that appeals to me as stated above this Rule fails and is discharged.
Graham, J.
15. The Rule in this case was issued to show cause why the petitioners should not be given an opportunity of cross-examining the witnesses for the prosecution before commitment to the sessions.
16. The facts are shortly these:
17. The petitioners were sent up for trial before the Chief Presidency Magistrate on charges under Sections 420 and 120-B, Penal Code. At the outset the learned Chief Presidency Magistrate intimated that he would upon the completion of the evidence commit the case to the High Court Sessions. Thereafter counsel for the accused is said to have verbally prayed for permission to cross-examine the witnesses for the prosecution, and it is said the learned Magistrate remarked that he would consider the application later. There appears to be some doubt about this, however, as the learned Magistrate says in his explanation that the application was refused, and we may proceed on that basis. The record shows that 10 Witnesses were examined for the prosecution on different dates from 20th December to 25th January, and on 4th February 1925 more prosecution witnesses were examined. In the case of each witness there is a note at the foot of the deposition that cross-examination was declined. On the last mentioned date, however, an application was made by the accused G.V. Raman praying for permission to cross-examine the approver and some other witnesses before commitment to the Sessions Court. That application was rejected by the Magistrate on the ground that the time for cross-examination had passed, and that he did not think it necessary at that stage to allow the prayer. It is this order which is now assailed on behalf of the petitioners, and the contention shortly is that the learned Magistrate had no option or discretion in the matter, and that he was bound to allow the accused to cross-examine the prosecution witnesses so as to give them an opportunity of breaking down the case against them and so obviating the necessity of their being committed to the Court of Sessions.
18. In my opinion this contention is without substance. An accused certainly has under Section 208(2), Criminal P.C., a right to cross-examine the witnesses for the prosecution, but he must exercise that right at the proper time, that is to say, after the close of the examination-in-chief. That is the ordinary construction to be put upon the section, and it finds support in Section 138, Evidence Act.
19. Mr. Chatterjee for the petitioner urged that inasmuch as Section 208, Criminal P.C. does not say when the right of cross-examination is to be exercised, it is open to the accused to exercise it at any time, and that he may, if he so desires, reserve it until after all the prosecution witnesses have been examined. There is nothing, however, in the section to Warrant this view. The right if exercised must be exercised in the normal manner.
20. It cannot be argued that because in the case of warrant trials an accused is allowed under Section 256, Criminal P.C., to reserve his cross-examination, he must necessarily have the same privilege when; an inquiry is held under Chap. 18. Indeed the very fact that that chapter contains no provision similar to that in Section 256(1) is an argument for holding that no such right exists. It may be inferred that the omission was intentional and not a mere accident. Moreover the record plainly shows that the accused declined to cross-examine, and they cannot afterwards revive that right and claim to exercise it at any time they please. The Magistrate might, if he considered it necessary or desirable, have allowed cross-examination, but it cannot be held that in refusing he committed any error of law.
21. It is to be borne in mind moreover that under Section 347, Criminal P.C., the Magistrate is empowered at any stage of the inquiry to commit for trial, which furnishes an additional reason for holding that the claim now preferred by the petitioners is not well founded. It seems to me that they are claiming a right which has not been given anywhere in the Code. Certain authorities were cited before us on their behalf and these have been dealt with by my learned brother. It is not therefore necessary for me to refer to them.
22. I agree that the Rule fails and should be discharged.
Short Summary The Calcutta High Court addressed whether a Magistrate erred in refusing the accused the opportunity to reserve cross-examination of prosecution witnesses until after all witnesses had been examined in a case triable by the Court of Sessions. The Court held that the Magistrate did not violate any express provision of law and acted within his discretion.
Facts The accused were charged under Sections 420 and 120-B of the Indian Penal Code. During the trial before the Chief Presidency Magistrate of Calcutta, the accused requested to reserve their right to cross-examine prosecution witnesses until a later stage. The Magistrate initially refused this request and repeatedly asked the defense to cross-examine each witness after their examination-in-chief, which they declined. After all prosecution witnesses were examined, the accused applied for permission to cross-examine some of them, which the Magistrate rejected, leading to the commitment of the accused to the Sessions Court.
Issues Did the Magistrate err in refusing the accused permission to reserve cross-examination of prosecution witnesses until after all witnesses had been examined, and was the commitment therefore liable to be quashed?
Petitioner's Arguments The petitioners argued that the Magistrate wrongly rejected their application to cross-examine certain witnesses before commitment, violating their right to a fair trial. They contended that Section 213(2) CrPC, which refers to "witnesses for the defence," includes prosecution witnesses who are cross-examined.
Respondent's Arguments The respondent (the Emperor) likely argued that the Magistrate acted within his discretion and followed the correct procedure under Chapter 18 of the Criminal Procedure Code (CrPC). They likely emphasized that the accused were given ample opportunity to cross-examine witnesses after their examination-in-chief and voluntarily declined to do so.
Court's Reasoning The Court reasoned that Chapter 18 of the CrPC, dealing with inquiries into cases triable by the Court of Session, is complete in itself. Section 208(2) CrPC only indicates the ordinary rule that after a witness is examined, they should be cross-examined. The Court found no provision in Chapter 18 that explicitly grants the accused the right to reserve cross-examination until after all prosecution witnesses have been examined, unlike Section 256 CrPC for warrant cases. The court rejected the petitioner's interpretation of Section 213(2) CrPC, stating that "witnesses for the defence" clearly refers to witnesses presented by the defense, not prosecution witnesses under cross-examination. While the Court acknowledged that a Magistrate might allow reserved cross-examination in exceptional circumstances in the interest of justice, it found no legal violation in this case.
Conclusion The Calcutta High Court dismissed the rule, upholding the Magistrate's order of commitment. The Court found no violation of law in the Magistrate's refusal to allow the accused to reserve cross-examination, as they had been given the opportunity to cross-examine each witness after their examination-in-chief and had declined.
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