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1957 Supreme(Cal) 210
HIGH COURT OF CALCUTTA
P. B. CHAKRAVARTTI, K. C. DAS GUPTA
A. ISHAQUE ALIAS MD. ASHFAQUE CHOWDHURY - Appellant
Versus
STATE - Respondent
Criminal Revn. 524 Of 1957
Decided On : NOVEMBER 28, 1957
AJIT KUMAR DUTT, NALIN CHANDRA BANERJI, S.H.Imam
Section 207A of the Criminal Procedure Code does not apply to cases instituted on a report made by the Calcutta Police.
Headnote:
CRIMINAL PROCEDURE CODE - Section 207A - Applicability - Calcutta Police - Investigation - Report - Section 173 - Extension - Scope - Discretion of Magistrate - Judicial exercise.
Fact of the Case:
The petitioner was charged with an offence under Section 302/34 of the Indian Penal Code for causing the death of Osman Kasai. The case was instituted on a report made by the Calcutta Police. The Magistrate proceeded under Section 207A of the Criminal Procedure Code and rejected the petitioner's application to direct the prosecution to produce all witnesses of the actual commission of the offence and to examine some witnesses on his own account in the interest of justice.
Finding of the Court:
The court held that Section 207A of the Criminal Procedure Code did not apply to the present case as the investigation was conducted by the Calcutta Police and Section 156 of the Code had not been extended to them. The court also held that the first part of Section 207A (4) did not make it compulsory for the prosecution to produce all their witnesses of the actual commission of the offence, nor did the second part make it compulsory for the Magistrate to examine for himself all such witnesses of the actual commission of the offence as the prosecution had not produced or even any of the other witnesses. However, the Magistrate must apply his mind to the question as to whether it is necessary in the interests of justice to examine for himself some witnesses other than those, if any, whom the prosecution have examined, whether they be eye-witnesses or not, and in doing so, must exercise his discretion judicially.
Issues: 1. Whether Section 207A of the Criminal Procedure Code applied to the present case. 2. Whether the prosecution was bound to produce all their witnesses of the actual commission of the offence. 3. Whether the Magistrate was bound to examine for himself all such witnesses of the actual commission of the offence as the prosecution had not produced or even any of the other witnesses.
Ratio Decidendi: 1. Section 207A of the Criminal Procedure Code did not apply to the present case as the investigation was conducted by the Calcutta Police and Section 156 of the Code had not been extended to them. 2. The first part of Section 207A (4) did not make it compulsory for the prosecution to produce all their witnesses of the actual commission of the offence. 3. The second part of Section 207A (4) did not make it compulsory for the Magistrate to examine for himself all such witnesses of the actual commission of the offence as the prosecution had not produced or even any of the other witnesses. However, the Magistrate must apply his mind to the question as to whether it is necessary in the interests of justice to examine for himself some witnesses other than those, if any, whom the prosecution have examined, whether they be eye-witnesses or not, and in doing so, must exercise his discretion judicially.
Final Decision: The Rule was made absolute. The proceedings by way of an enquiry had in the case on and after 21/1/1957 were quashed, and the learned Magistrate was directed to proceed with the enquiry in accordance with law, i.e. in accordance with Section 208 and subsequent sections in Chapter XVIII of the Code.
( 1 ) THIS is a Rule issued on the Chief Presidency Magistrate, Calcutta, requiring him to show cause why two orders, dated 30-4-1957 and 1-5-1957 respectively, passed by Shri F. M. Sanyal, Presidency Magistrate, in the course of a commitment proceeding against the petitioner should not be set aside or such other order or orders passed as this Court may deem fit and proper. By the impugned orders, the learned Magistrate rejected the Petitioner's prayer to direct the prosecution to produce more witnesses of the actual commission of the alleged offence and also to examine some witnesses on his own account in the interest of justice.
( 2 ) THE case arose out of an incident which took place on 4-10-1956 and in the course of Which one Osman Kasai received severe injuries, resulting ultimately in his death. At first, the Police started a case against Osman Kasai and 5 others on an information lodged by one Matilal Marwari at about 1-50 P. M. , but in the night two other informations were lodged by one Md. Farooque, a brother of Osman Kasai, accusing the Petitioner and certain other persons of an assault on Osman. Later in the same night, on receipt of the injury report of Osman from the Medical College Hospital and his statement made to the doctor in charge that he had been assaulted by unknown goondas, the Police started a case against unknown goondas under Section 325 of the Indian Penal Code and commenced investigation. Subsequently Osman died in the hospital.
( 3 ) ON the completion of their investigation, the Police submitted a challan on 4-1-1957, charging the Petitioner and six other persons-with an offence under Section 302/34 of the Indian Penal Code for having assaulted Osman Kasai on 4-10-1956, in furtherance of a common intention to cause his death and for having caused his death by the assault. The Petitioner and five of the other accused persons had previously been arrested by the Police, but the seventh accused was absconding.
( 4 ) ON 31-1-1957, the Chief Presidency Magistrate directed the case to proceed as against the six accused persons before the Court and transferred it to Shri F. M. Sanyal, Presidency Magistrate, for disposal.
( 5 ) SHRI Sanyal proceeded under Section 207a of the Criminal Procedure. He satisfied himself that copies of the papers to which the accused were entitled had
been supplied to them and then he examined the witnesses produced by the prosecution. In all, seven witnesses were, examined, the last of them on 1-5-1957. In the case of every witness, the defence declined to cross-examine.
( 6 ) ON 30-4-1957, before which six of the witnesses had been examined, an application was made by the Petitioner whereby it was prayed that the prosecution might be directed to produce all witnesses on whom they wished to rely as eye-witnesses and also to produce the medical witnesses. The learned Magistrate rejected the application. He said that the prosecution were examining all the eye-witnesses of the occurrence and having perused the records and documents filed in the case, he did not think that any useful purpose would be served by examining all the other witnesses and prolonging the enquiry thereby. On 1-5-1957, a further application was made by the Petitioner in which he referred to two decisions one of the Madhya Bharat High Court and another of the Travancore-Cochin High Court, in support of his contention that both parts of Section 207a (4) were mandatory and by which he prayed that the learned Magistrate might either make a reference to this Court under Section 432 of the Code or grant an adjournment of the case so that he might move it himself for a decision of the question of law raised by him. That application was also rejected. The learned Magistrate observed that the question had already been decided by this Court in the State v. Joydeb Chandra Das, 61 Cal WN 248 (A ). Thereafter, the Petitioner moved this Court and obtained the present Rule.
( 7 ) THE petition t
