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SUPREME COURT OF INDIA
1st June 1951
FAZL ALI, PATANJALI SASTRI, S.R. DAS AND VIVIAN BOSE JJ.
Tara Singh - Petitioner
Versus
The State.
Criminal Appeal No. 14 of 1951.
Advocates appeared
Shri Hardayal Harde Advocate, Instructed by Shri Ganpat Rai, Agent-for Appellant; Shri S.L. Chibber Advocate Instructed by Shri P.A. Mehta, Agent- for Respondent.
Held: "All that S. 173 (1) (a) requires is that as soon as the police investigation under Chap. 14 of the Code is complete, there should be forwarded to the Magistrate a report in the prescribed form:
"setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case."
All that appears to have been done in the report of 2nd October which the police called their incomplete challan. The witnesses named in the second challan of 5th October were not witnesses who were acquainted with the circumstances of the case. They were merely formal witnesses on other matters. So also in the supplementary challan of the 19th. The witnesses named are the 1st Class Magistrate, Amritsar, who recorded the dying declaration, and the Assistant Civil Surgeon. They are not witnesses who were acquainted with the circumstances of the case. Accordingly, the challan which the police called an incomplete challan was in fact a completed report of the kind which S. 173 (1) (a) of the Code contemplates. There is no force in this argument and we hold that the Magistrate took proper cognizance of the matter." (per Bose J.)
Section 288 - "Subject to provisions of Evidence Act" , whether excludes S. 145, Evidence Act.
Held: There is no reason why S. 145, Evidence Act, should be excluded when S. 288 states that the previous statements are to be" subject to the provisions of the Indian Evidence Act. " Section 145 falls fairly and squarely within the plain meaning of these words. More than that. This is a fair and proper provision and is in accordance with the sense of fair play, to which Courts are accustomed. Giving effect to the plain meaning of the words Subject to the provisions of the Indian Evidence Act" as they stand, the -evidence in the Committal Court cannot be used in the Sessions Court unless the witness if confronted with his previous statement as required by S. 145, Evidence Act. Of course, the witness can be across-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that seems the purpose of the prosecution, then nothing more is required but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must confront the witness with those parts of it which are to be used for the purpose of contradicting him. Then only can the matter be brought in as substantive evidence under S. 288.
Section 340 (I)-Nature of right of accused.
Held: The right conferred by S. 340 (1) does not extend to a right in an accused• person to be provided with It lawyer-by the state or by the police or by the Magistrate. That is privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity.
Section 340 (I)-Nature of right of accused.
Held: The right conferred by S. 340 (1) does not extend to a right in an accused• person to be provided with It lawyer-by the state or by the police or by the Magistrate. That is privilege given to him and it is his duty to ask for a lawyer if he wants to engage one and to engage one himself or get his relations to engage one for him. The only duty cast on the Magistrate is to afford him the necessary opportunity.
Section 342 (I)-Meaning of "appearing in the evidence against him.
Held: "Section 342 requires the accused to be examined for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Now it is evident that when the Sessions Court is required to make the examination under this section the evidence referred to is the evidence in the Sessions Court and the circumstances which appear against the accused in that Court. It is not therefore enough to read over the qUl1~tions and answers put in the Committing Magistrates Court and ask the accused whether he has anything to say about them. In the present case, there was not even that. The appellant was not asked to explain the circumstances appearing in the evidence against him but was asked whether the Statement made before the Committing Magistrate and his answers give there correctly recorded. That does not comply with the requirements of the section. There is also more than that in this case. The evidence recorded in the Committal Magistrates court is as full and as complete as the evidence recorded in the trial before the Sessions Judge. Accordingly, it often happens that evidence is given in the Sessions Court and facts are disclosed which do not appear on the record of the Committing Magistrate. If the Judge intends to use these against the accused, it is clearly not enough to question him about matters which occurred in the Committal Court, for material of this kind will not be found on the sessions record in these circumstances.
"Again, if the appellant was not asked whether these witnesses were unfriendly or not, it is not fair to use the absence of such a suggestion as something which tells against the appellant. It is true the accused can cross-examine as to enmity but he is not confined to that. It may be that in a given case cross-examination would be futile, for, it would only elicit a denial, whereas a statement made by the accused which the Code directs should be used as evidence, for or against him, might be of great value. In any event the Code directs that the accused shall be afforded these opportunities and an omission to do so vitiates the trial if prejudice occurs or is likely to occur." (per Fazl Ali J.)
Judgment
Fazl Ali J.:- I agree and have nothing to add.
2. Patanjali Sastri J.- I agree and have nothing further to add.
3. Das J.- I agree to order proposed by my learned brother Bose.
4. Bose J.- This is an appeal under Art. 136 (1) of the Constitution. The appellant Tara Singh was convicted of murder by the Additional Sessions Judge of Amritsar and sentenced to death. On appeal the High Court upheld the conviction and confirmed the sentence. Tara Singh has made a further appeal to this Court.
5. As we intend to order a retrial, it will not be desirable to say anything about the merits of the case. The case for the prosecution is that two persons, Milkha Singh and Makam Singh, were murdered in the early hours of the morning of Friday, 30-9-1949. The former is the appellant s uncle. He died on the spot. The latter is the appellant s father. He was removed to the hospital and died there on Friday, 7-10-1949.
6. The murders are said to have been committed about three in the morning. The appellant s brother Narindar Singh reported the occurrence at the Police Station, about 7 miles distant, at 8-45 the same morning. According to this report, Narindar was present and he named the appellant as the assailant.
7. The prosecution alleges that there were three eye-witnesses to the assault on the father Hakam Singh, namely, the appellant s brother Narindar Singh, his mother Bibi Santi and his sister Bibi Jito, aged 14. They are said to have arrived on the scene while the appellant was still attacking the father with a Kripan. The prosecution version is that these three persons saw the uncle Milkha Singh lying dead on the scene of the occurrence with injuries on his person, and it is said that the appellant admitted to them that he had killed the uncle.
8. The appellant is also said to have made an extra- judicial confession to three persons, Ujagar Singh (P. W. 8), Fauja Singh (P. W. 9) and Gurbaksh Singh (P. W.10). The prosecution also adduced in evidence about three dying declarations made by the father Hakam Singh in each of which he implicated the appellant. Two of these were made to the police and the third was recorded by a Magistrate on 1st October.
9. The appellant was arrested between 4 and 5 P. M. on Friday, 30th September, the day of the occurrence, and was produced before a Magistrate on 1st October. The police asked for a remand to police custody till the 2nd as their enquiry was not complete. This was granted and the appellant was produced before another Magistrate on the 3rd.
10. When the appellant was produced on 3rd October, the police handed over to the Magistrate what they called an incomplete challan dated 2-10-1949 and also produced certain prosecution witnesses. It is not clear whether these witnesses were named in the challan of that date or not, but that is a matter which can be cleared up in the course of the retrial which we intend to order. Among the witnesess so produced were three who are said to have witnessed the occurrence. They were the appellant s brother Narindar, his mother Bibi Santi and his sister Bibi Jito. The Magistrate examined them straightaway and record their evidence. The appellant was not at the time represented by counsel.
11. On 5th October, the police put in what they called a complete challan and on, the 19th they put in a supplementary challan. The Magistrate committed the appellant for trial on 12-11l949.
12. The first objection taken to the trial is trial the Magistrate had no power to take cognizance of the case on 3rd October. Accordingly, the depositions of the three so-called eye-witnesses which he recorded on the 3rd cannot be received in evidence, and if they are excluded, then, for reasons which I shall set out hereafter, the whole case against the appellant collapses because, according to the learned counsel, there is no other evidence on which the conviction can properly be based.
13. This part of the argument is based on S. 190, Criminal P. C. It is contended that cognizan
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