{"id":143435,"date":"1967-02-23T00:00:00","date_gmt":"1967-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shivangouda-malliangouda-and-vs-the-state-of-mysore-on-23-february-1967"},"modified":"2015-10-23T23:09:25","modified_gmt":"2015-10-23T17:39:25","slug":"shivangouda-malliangouda-and-vs-the-state-of-mysore-on-23-february-1967","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shivangouda-malliangouda-and-vs-the-state-of-mysore-on-23-february-1967","title":{"rendered":"Shivangouda Malliangouda And … vs The State Of Mysore on 23 February, 1967"},"content":{"rendered":"
Karnataka High Court<\/div>\n
Shivangouda Malliangouda And … vs The State Of Mysore on 23 February, 1967<\/div>\n
Equivalent citations: AIR 1967 Mys 199, 1967 CriLJ 1534<\/div>\n
Author: H H Gowda<\/div>\n
Bench: H H Gowda, M Santhosh<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 H. Hombe Gowda, C.J.  <\/p>\n
 1. This revision petition is filed under Sections 215 and 561-A of the Code of Criminal Procedure (Section 215 of the Code of Criminal Procedure is obviously a mistake and<\/p>\n
it is not applicable) for (finishing of the order, dated 10-1-1967, passed by the Additional Sessions Judge, Dharwar, Ex. 6, in Sessions Case No. 63 of 1966 dismissing the application filed by the petitioners (accused) to quash the committal order, dated 18-11-1966, passed by the Judicial Magistrate, First Class. Ranebennur, in C. C. No. 630 of 1966   <\/p>\n
 2. A charge-sheet for offences punishable under Sections 147, 148 and 326 read with Section 149 of the Indian Penal Code was placed against the petitioners accused in the Court of the Judicial Magistrate, First Class, Ranebennur, in C. C. No. 630 of 1966. The learned Magistrate proceeded to deal with the case under Chapter XXI of the Code of Criminal Procedure When the learned Magistrate, was considering the papers filed under Section 173, Cr. P. C. a memo was filed by the Prosecuting Inspector to the effect that the allegations in the charge sheet clearly indicated that the accused were also guilty of an offence punishable under Section 307 of the Indian Penal Code and that the accused should be committed in take their trial in the Court of Sessions for all the offences.\n<\/p>\n
 At that stage the accused made an application before the learned Magistrate to examine the witnesses before he made up his mind in this regard The learned Magistrate framed a charge for offences punishable under Sections 147, 148 and 307 read with Section 149 of the Indian Penal Code and committed the accused to take their trial in the Court of Sessions. He did not adopt the procedure prescribed under Chapter XVIII of the Code of Criminal Procedure. When the case was transferred to the file of the Additional Sessions Judge. Dharwar. The accused filed an application for recommending the case for quashing of the order of committal to this Court on the ground that the procedure adopted by the learned Magistrate is illegal and has resulted in the miscarriage of justice. The learned Judge heard the arguments addressed on behalf of the accused and the prosecution and dismissed the application. After all these the accused have made this application to this Court to invoke our inherent jurisdiction to quash the order of committal   <\/p>\n
 3. It cannot be disputed that the order passed by the learned Magistrate committing the accused straightway without adopting the procedure prescribed under Section 207(A) of the Code of Criminal Procedure is illegal. The charge-sheet against the accused, as already stated was for offences punishable under Sections 147, 148 and 326 read with Section 149 of the Indian Penal Code which are all triable by the learned Magistrate himself under Chapter XXI of the Code of Criminal Procedure As a matter of fact the learned Magistrate proceeded to consider the papers treating them as a case instituted under Chapter XXI and not under Section 207-A of the Code of Criminal Procedure. It is only after the Prosecuting Inspector filed a memo and prayed the learned Magistrate to commit the accused to<\/p>\n
lake their trial before the Court of Sessions, the learned Magistrate thought it fit to commit the accused to take their trial in the Court of Sessions at Dharwar after rejecting the application made on behalf of the accused to examine the witnesses before he decided as to whether it was a fit case to commit the accused to take their trial before the Court of Sessions or not. The learned Magistrate in the circumstances should have conducted a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure and in accordance with Section 207-A of the Code of Criminal Procedure
\nMr. G. Shankara Chetty, the learned State Public Prosecutor, does not dispute this proposition, but he contends that the learned Magistrate who was dealing with the case under Chapter XXI of the Code of Criminal Procedure was entitled at any stage to commit the accused to take their trial under Section 347 of the Code of Criminal Procedure. We are afraid that the provisions of Section 347 of the Code of Criminal Procedure are not at all attracted in this case inasmuch as the proceedings had just then been initiated and had not at all been started immediately after the Prosecuting Inspector brought it to the notice of the learned Magistrate that the allegations made in the charge-sheet indicated that the accused had also committed an offence or offences triable exclusively by a Court of Session, it was his duty to hold an inquiry under Chapter XVII of the Code of Criminal Procedure There was absolutely no impediment for the learned Magistrate to have done so in the circumstances of the case.\n<\/p>\n
 4. It is urged by Mr. Shankara Chetty, the learned State Public Prosecutor, that while he has no objection for the order of committal being quashed and the case remitted back to the learned Magistrate to conduct a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure, we should not indicate in our order that he should examine all the witnesses for the incident before he makes up his mind to commit or discharge the accused. We are afraid we cannot accept this contention of Mr. Shankara Chetty. It should he noted that the accused had made an application to the learned Magistrate requesting him to summon and examine all the eve witnesses before he passed any final order in the case. At that stage no witnesses had been examined by the Prosecuting Inspector. The learned Magistrate, as already stated, rejected the prayer made by the accused to examine the witnesses. In a case like this one before us, we are of the opinion, that it is necessary that the witnesses for the incident should he examined by the Prosecutor before any order under Sub-section (6) of Section 207-A of the Code of Criminal Procedure is passed. That It is the correct procedure is made clear by their Lordships of the Supreme Court in Kirpal Singh v. State of Uttar Pradesh, . Their Lordships in paragraph (7) of the judgment have observed as follows:–\n<\/p>\n
  “Before  parting  with the  case,  we  think it   necessary   to   observe   that   the     committing Magistrate   in   this  case   erred   in   committing the accused  to the Court of Sessions without recording the evidence of all the witnesses to the actual  commission of the offence.    Under the Code  of Criminal  Procedure  as  amended by Act 26 of 1955, the Magistrate holding committal proceedings is required to take the evidence of such persons, if any, as may he produced by the  prosecution  as  witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice  to take the evidence  of  any  one or more of the other witnesses   for   the  prosecution,  he   may   take  such evidence also. Section 207-A(4).    The Magistrate has in the inquiries relating to charges for serious offences   like   murder   the   power     and   indeed a duty in  the interest  of the accused  as well as in the larger interest of the public to record the   evidence   of   other   witnesses   who   throw light   on   the   case.   Examination   of   witnesses to the actual commission of the offence should in inquiries for committal on charges for such serious offences he the normal rule.    The prosecutor   is   expected   ordinarily   to   examine   in the   Court   of   the   committing   Magistrate     all witnesses   to   the   actual     commission   of     the offence:   if  without  adequate  reasons  he  falls to  do  so.  the  Magistrate  is   justified  and    in enquiries  on charges  for  serious  offences    if under  a  duty   to  call   witnesses  who     would throw light upon the prosecution case.  Before the Code was amended by Act  26 of  1955  it was  necessary for  the  Magistrate  holding the inquiry to record the evidence of all the important witnesses    With a view to shorten delays in  the  proceeding preliminary  to bringing the accused  to trial, the Legislature has by enacting Section 207-A  conferred  a discretion upon  the Magistrate  in   the  matter  of  examination    of witnesses   not     produced  by   the    prosecutor. Exercise of that discretion must be judicial; it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances  of   the  case.    The   Magistrate    is again not to be guided by the attitude of the prosecutor.    He must of course consider    the representation   relating  to  the  examination   of witnesses by the prosecutor, but in considering whether it is necessary in the interest of justice   to   take  evidence  of  any one  or   more  of the    other    witnesses for the    prosecution, he must have due   regard  to  the  nature and gravity of the offence, the interest of the accused and the larger interest of the public, and  the defence  if  any  disclosed  by  the  accused.    A Magistrate failing to examine witnesses to the actual commission of the offence because they are not  produced  without considering whether it is necessary in the interest of justice to examine   such   witnesses,   in   our   judgment,   fails in  the discharge of his duties.” The   above    observations     are     clear   and     in unmistakable  terms state that it is necessary that  the witnesses for the incident should  be examined      These   observations  apptly  apply  to the facts of this case.\n<\/p>\n
 5. It is urged by Mr. Shankara Chetty that their Lordship of the Supreme Court who dealt with the case , had not specifically overruled the observations made in Shri Ram v. State of Maha-rashtra, . and the observations in Shri Ram’s case , support his contention that it is not obligatory on the part of the Magistrate to examine all such witnesses. We are unable to accept this contention. This contention has been answered by their Lordships of the Supreme Court in AIR 1966 SC 712 in paragraph (8) of the judgment wherein they have observed as follows: –\n<\/p>\n
  “There is nothing in the decision of this Court in  which may support the view that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to he guided by the prosecutor. It is the duty of the Magistrate to examine all such witnesses as may he produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with such examination He must apply his mind to the documents referred to In Section 178 and the testimony of witnesses if any produced by the prosecutor and examine and consider whether in the interest of justice it is necessary to record the evidence of other witnesses In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the examination of the principal witnesses to the actual commission of the offence Failure to examine the witnesses, may be justified only in exceptional cases. This is so because the Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital Importance in the ultimate trial and a slipshod or mechanical dealing with the proceeding must be deprecated.” We are clearly of the opinion that the order of committal passed by the learned Magistrate is illegal and cannot be supported and should be set aside. We order accordingly. The records of the cases will now go back to the Judicial Magistrate. First Class. Ranebennur, to be dealt with In accordance with law in the light of the observations made above   <\/p>\n
 6. Petition   allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Karnataka High Court Shivangouda Malliangouda And … vs The State Of Mysore on 23 February, 1967 Equivalent citations: AIR 1967 Mys 199, 1967 CriLJ 1534 Author: H H Gowda Bench: H H Gowda, M Santhosh JUDGMENT H. Hombe Gowda, C.J. 1. This revision petition is filed under Sections 215 and 561-A of the Code of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,20],"tags":[],"class_list":["post-143435","post","type-post","status-publish","format-standard","hentry","category-high-court","category-karnataka-high-court"],"yoast_head":"\nShivangouda Malliangouda And ... vs The State Of Mysore on 23 February, 1967 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shivangouda-malliangouda-and-vs-the-state-of-mysore-on-23-february-1967\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shivangouda Malliangouda And ... vs The State Of Mysore on 23 February, 1967 - 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