Full Judgment Text
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PETITIONER:
SANJAY GANDHI
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT14/02/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1978 AIR 514 1978 SCR (2) 861
1978 SCC (2) 39
CITATOR INFO :
RF 1978 SC1568 (11)
RF 1979 SC 478 (93)
ACT:
Criminal Procedure Code (Act 11 of 1974), 1973 Ss. 193, 208,
209, 226 and 227--Duties of the Committal Court under the
new code when offence is--triable exclusively by the Court
of Sessions, clarified.
HEADNOTE:
A time schedule for the committal proceedings in RC 2/1977-
CIA-1 on the file of the Chief Metropolitan Magistrate Delhi
was-fixed by this Court on 2-2-1978. On the refusal by
Committal Court to grant him further time to inspect the
records u/s 208 of the Crl.P.C., the petitioner, a co-
accused, moved an application for modification of this
Court’s order dated 2-2-78 on the ground that he was not a
party before this Court in the earlier proceedings.
Rejecting the petition, the Court
HELD : 1. Where the offence is triable exclusively by the
Court of Session, the, Committing Magistrate has no power to
discharge the accused. Nor has he power to take oral
evidence save where a specific provision like S. 306
enjoins. Hence cross examination by the accused out
provisionfor the Magistrate save in the case of approvers.
No Examination-in-Chief,no cross examination. [862 F]
2. It is not open to the Committal Court to launch on a
processof satisfying itself that a prima facie case has
been made lout on the merits.The jurisdiction once vested
in the Committing Magistrate under the earlier Code having
been eliminated now under the present code, to hold that he
can go into the merits even for a prima facie satisfaction
is to frustrate Parliament’s purpose in re-moulding S. 207-A
(old code) into its present non-discretionary shape.
Expedition intended by this change will be-defeated
successfully, if interpretatively it is held that a dress
rehearsal of a trial before the Magistrate is in order. The
narrow inspection hole through which the Committee
Magistrate has to look at the case limits him merely to
ascertain whether the case, as disclosed by the police-
report, appears to him to show an offence triable solely by
the Court of Session. If, by error, a wrong section of the
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Penal Code is quoted be may look into that aspect. [862 G-H,
863 A-B]
If made-up facts unsupported by any material are reported by
the police and a Sessions offence is made to appear, it is
perfectly open to the Sessions Court u/s 227 Crl.P.C. to
discharge the accused. That provision takes care of
grievance that the prosecution may stick a label mentioning
a Sessions offence and the accused will then be denied a
valuable opportunity to prove his ex-facto innocence. [863
B-C]
JUDGMENT:
ORIGINAL JURISDICTION : Civil Miscellaneous Petition Nos.
31853188 of 1978.
A. N.Mulla and D. Goburdhan for the Petitioner.
R. Jethamlani, S. B. Jaishinghant’ and R. N. Sachthey for
the Union of India.
Parveen Kumar for Respondent No. 2.
862
The Order of the Court was delivered by
KRISHNA IYER, J. No party to a criminal trial has a vested
right in slow motion justice since the soul of social
justice in this area of law is prompt trial followed by
verdict of innocence or sentence. Since a fair trial is not
a limping hearing, we view with grave concern any judicial
insouciance which lengthens litigation to limits of
exasperation. This key thought prompted us on an earlier
occasion to fix a reasonable, yet not hasty, time schedule
for the committal proceedings in R.C.2 977-CIA-f ’on the
file of the Chief Metropolitan Magistrate, Delhi, and this
was done viably and with consent of the parties then before
us (one of whom is a principal accused represented by Senior
Counsel). We are satisfied that the Magistrate has acted in
the spirit of this Court’s order as indeed he was bound to,
in refusing time. Now, another accused, who was not a
party. to the earlier proceeding in this Court, has come up
with a petition praying for modification of the order fixing
the time-table for, and injecting a sense of tempo into, the
hearing process and committal, on the score that it hurts
him by denying sufficient scope to examine the allegedly
voluminous records produced by the police running into
around 20,000 pages. He further urges, through Shri A. R.
Mulla, his learned counsel, that he wishes to cross-examine
the witnesses for the prosecution and to argue that no prima
facie case has been made out for commitment. Admittedly,
one of the offences in the charge sheet is s. 201 I.P.C.
which is exclusively triable by a Sessions Court. Counsel
argued that under s. 306 Cr. P.C. approvers (there are two
in this case) shall be examined as witness in the court of
the Magistrate taking cognizance of the offence, and to
cross-examine them the accused needs to persue, scan and
scruitnise these 20,000 pages of files produced by the
Police which cannot be done without a few months of
inspection before examination of the witnesses.
We have heard counsel on both sides and proceed to elucidate
certain clear propositions under the new Code bearing upon
the committal of cases where the offence is triable
exclusively by the Court of Session. The Committing
Magistrate in such cases has no power to discharge the
accused. Nor has he power to take oral evidence save where
a specific provision like s. 306 enjoins. From this it
follows, that the argument that the accused has to cross-
examine is out of bounds for the Magistrate, save in the
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case of approvers. No examination-in-chief, no cross-
examination.
Secondly, it is not open to the committal court to launch on
a process of satisfy itself that a prima facie case has been
made out on the merits. The jurisdiction once vested in him
under the earlier Code has been eliminated now under the
present Code. Therefore, to hold that he can go into the
merits even for a prima facie satisfaction is to frustrate
the Parliament’s purpose in re-moulding s. 207-A (old Code)
into its present non-discretionary shape. Expedition was
intended by this change and this will be defeated
successfully if interpretatively we hold that a dress
rehearsal of a trial before the Magistrate is in order. In
our view, the narrow inspection hole through which the
committing Magistrate has to look at the case limits him
merely to
863
ascertain whether the case, as disclosed by the police
report, appears to the Magistrate to show an offence triable
solely by the Court of Session. Assuming the facts to be
correct as stated in the police report, if the offence is
plainly one under s. 201 I.P.C. the Magistrate has simply to
commit for trial ’before the Court of Sessions. if, by
error, a wrong section of the Penal Code is quoted, he may
look into that aspect. Shri Mulla submits if the
Magistrate’s jurisdiction were to be severely truncated like
this the prosecution may stick a label mentioning a sessions
offence (if we may use that expresson for brevity’s sake)
and the accused will be denied a valuable opportunity to
prove his ex facie innocence. There is no merit in this
contention. If made up facts unsupported by any material
are reported by the police and a Sessions offence is made to
appear, it is, perfectly open to the Sessions Court under s.
227 Cr.P.C. to discharge the accused. This provision takes
care of the alleged grievance of the accused.
Indeed, we are not at all satisfied that the Magistrate has
denied an opportunity for the petitioner to post himself
adequately with the police records adduced in the case.-
Sufficient adjournments, were granted; indefinite
postponements were accorded,-the presumed reason being time
for inspection and more inspection. After all, if the oral
testimony is to be confined to the two approvers, not all
the records put in by the police become necessary for the
accused to cross-examine them. The exaggeration implied in
the statement that 20,000 pages of voluminous record have
been filed by the police was brought out by the counsel for
the State, Shri Jethmalani. Supposing an entry in a
register is relied on by the police; the other pages in the
voluminous register being of no concern or pertinence to the
case, even remotely, there is no point in counting the total
number of pages of the register since the case is concerned
only with one entry. We are far from, satisfied about the
genuineness of the petitioner’s grievance, since we are
inclined to think that counting the number of pages of
irrelevant papers necessarily tied up with relevant ones
(being in the same book or file) is a farcical process. It
may be sheer waste of time for the accused to inspect
totally irrelevant material. We are convinced that the
Magistrate has afforded sufficient opportunity and he has
rightly put his foot down on further procrastination.
,We dismiss the petition generally speaking, but having
regard to the fact that the case begins tomorrow and the
party has perhaps pinned his hopes upon something happening
in this Court, and also because of the fact that the offence
is a serious one, we direct the Magistrate to start the
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hearing and examine the approvers from 20-2-1978 onwards.
We make it clear that the Committing Magistrate will take
zealous care to dispose of the committal proceedings with
despatch. We allow the Magistrate four, days more time,
beyond the date fixed by this Court in the earlier order for
the commitment of the case and a like extension in the rest
of the period fixed there.
S.R.
Petition rejected.
864