1. HAMOODUR RAHMAN, C. J. --This appeal, by special leave, is directed against the judgment of a Division Bench of the High Court of East Pakistan, dismissing a criminal application filed under section 215 read with sections 435 and 439, Cr. P. C. for the quashment of an order of Mr. M. S. Uddin, Magistrate 1st Class, Noakhali, committing the appellant to stand his trial in the Court of Session on charges under section 406/408/467 of the Pakistan Penal Code.
2. The appellant is the managing director of a private limited company, called Delta Agency Ltd., which has its office at Chowmohani. This company has 21 shareholders, of whom the complainant is one. Its share capital of Rs, 5 lacs divided into 5 thousand ordinary shares of rupess one hundred each. By a resolution dated the 19th of May 1963, this company appointed the appellant to be its managing director.
3. One of the objects for which this company was formed was to establish, erect and maintain a jute mill. In fulfilment of this object the same shareholders constituted another company, called the Delta Jute Mills Ltd., on the 27th of May 1965. Its share capital was Rs, one crore and fifty lacs. One crore was to be raised by the issue of debentures in favour of the Industrial Development Bank of Pakistan and the balance of Rs, 50 lacs was divided into 5 lacs ordinary shares of Rs, 10 each. Of this company also the appellant was appointed the managing director by a resolution passed on the 15th of June 1965.
4. The Delta Agency Ltd., spent, it is said, a sum of Rs, 65 thousand in meeting the preliminary expenses of establishing the Delta Jute Mills. On the insistence of the respondent No, 1, the directors of the Delta Jute Mills on the 28th of February 1966, sanctioned repayment of a sum of Rs, 50 thousand to Delta Agency Ltd. In compliance with this resolution on the 7th of March 1966, a cheque (Exh. 5) was drawn in favour of Delta Agency Ltd. for Rs, 50,000. It was signed by the appellant as managing director and by one, Ghulam Qadir, the accountant-incharge of the Delta Jute Mills Ltd., in accordance with the requirements of the articles of association. It was also specially crossed and made payable to account payee only.
5. It is alleged that after the cheque was so drawn the appellant without reference to the accountant-in-charge cancelled the special endorsement, converted the cheque into a bearer cheque, withdrew the entire amount in cash and instead of crediting the amount in the account of the Delta Agency Ltd. utilised it for his own purposes.
6. The respondent No. 1 in October 1966, accordingly, lodged a complaint with the Sub-Divisional Officer, Noakhali alleging that the appellant had not only fabricated a valuable security but also misappropriated the proceeds of the said security, namely, the cheque, and thereby committed offences under sections 467 and 408 of the Pakistan Penal Code as also section 282-A of the Companies Act.
7. On the 6th of October 1966, the complainant was examined on oath and processes were issued against the appellant along with a bailable warrant in the sum of Rs. 1,000 and a ward's. warrant under section 96 of the Criminal Procedure Code. We are not concerned here with the intermediate proceedings but it appears that on the 27th of April 1967, all the prosecution witnesses were examined in full and then the appellant himself was examined under section 209 of the Criminal Procedure Code. In this examination he was also asked the following question : "Will you adduce any defence?"
8. His answer was, "Yes".
9. In view of this answer the Magistrate recorded the following order in the order-sheet : "27th April 1967. The accused present, examined P.W. 4 on recall by cross-examiner and fully examined two more P. Ws. The prosecution is closed. The accused is also examined under section 209, Cr. P. C. To 18-5-67 for hearing and defence, if any. Accused as before. (Sd.) M. S. Uddin."
10. No defence was, however, produced on the 18th of May 1967, hence the prosecution arguments were heard and the case was adjourned to 8.6-67 for defence arguments.
11. In the meantime the appellant absented himself and further proceedings had to be taken to secure his attendance by directing his sureties to produce him and issuing a warrant for his arrest.
12. The appellant also applied unsuccessfully for the transfer of the case to some other Magistrate.
13. Ultimately on 2-7-67 after the case had been returned to the Magistrate by the Sub-Divisional Officer refusing the application for transfer the Magistrate passed the order committing the appellant to stand his trial in the Court of Session and framed two charges, one under section 406, and the other under sections 467 and 408 of the Pakistan Penal Code. The charges were then read over and explained to the accused, who pleaded not guilty to the charge under section 406 of the Pakistan Penal Code and "claimed to be tried". In respect of the charges under sections 467 and 408 he also pleaded not guilty and "claimed to be tried in the Court of Session".
14. After framing the charges Magistrate concerned did not, however, as required by the provisions of section 211 of the Criminal Procedure Code, call upon the appellant to give his list of the witnesses whom he wished to be summoned to give evidence at the trial.
15. The appellant also did not furnish any such list on his own but went straight to the Sessions Judge of Noakhali under sections 435 and 438 of the Criminal Procedure Code to challenge the commitment order on the ground that no prima facie case had at all been made out and, therefore, the Magistrate had acted illegally and without jurisdiction in committing him to stand his trial. The Sessions Judge found "nothing illegal or manifestly improper in the impugned order" of the Magistrate and, accordingly, rejected the petition. It does not appear from the order of the learned Sessions Judge as to whether any objection was raised before him on the ground of non- compliance with the provisions of section 211, Cr. P. C.
16. Against this order the appellant moved the High Court on the 12th of September 1967, as already stated, by a combined application under sections 215 and 435 and 439 of the Cr. P. C. and in this petition a specific ground was taken to the effect that in so far as the Magistrate had failed to observe the mandatory provisions of section 211 of the Criminal Procedure Code, the order of commitment was liable to be quashed.
17. It appears that this was the main ground on which the application was pressed before the High Court. The junior member of the Bench, who wrote the main judgment, took the view that the failure to comply with the provisions of section 211, Cr. P. C. was not an "illegality vitiating the commitment" but only an irregularity of a curable nature. He found support for this view from the fact that this Court itself had not either in the case of Moonda and others v. The State or in the case of Ibrahim v.
18. The State set aside or quashed the commitment proceedings. The learned Judge was, accordingly, inclined to the view that since the appellant had not availed of the opportunity of prancing defence evidence either under section 208, Cr. P. C. or when he was examined under section 209, Cr. P. C., he could not claim that he had been denied an opportunity of leading defence evidence for quashing the charge. In any event, even after the charge was framed and read over to bim he clearly stated that he claimed to be tried in the Court of Session and, therefore, the objection now taken was an afterthought and an attempt merely to delay the proceedings. The learned Judge also found fault with the conduct of the appellant in absenting himself first and then trying to get the case tratisferied from the Magistrate even after two adjournments had been taken for defence arguments.
19. The senior member of the Bench wrote a separate order agreeing with the order proposed to be made by his colleague on the ground that the petitioner before them had been trying to delay the trial and that no prejudice had been caused to him. At the same time he did not support the other reasons given by his colleague and expressed himself to the following effect ;-- "On my part I was inclined to set aside the order of com- with a view to remedy the defect of non compliance with the provisions of section 211, Cr. P. C. since the Rahtam trial has not yet commenced and the matter has made no progress beyond the commitment."
20. Leave was, accordingly, granted in this case to consider whether the High Court had correctly interpreted the provisions 4 of section 211, Cr. P. C. and the decisions of this Court mentioned above.
21. Learned counsel appearing for the appellant has placed strong reliance on the observations of this Court in Moonda's case as to the mandatory nature of the provisions of section 211, Cr. P. C. and contended that the decision in Ibrahim's case can b distinguished on the ground that there the accused had allowed the trial to proceed without taking this objection. If, on the other hand, he argues, it is held that the Court took a different view in Ibrahim's case then that decision needs revision, for, the correct principle has been laid down in Moonda's case.
22. The learned counsel has also argued with some force that the question of prejudice is immaterial, for, if it is an illegality, prejudice or no prejudice, the order must be set aside and the illegality corrected, particularly, since he has come to seek this remedy at the earliest opportunity available to him. He has also maintained that under section 215 of the Criminal Procedure Code it is not necessary for him to establish an illegality. To obtain relief under this section, it is contended, it is sufficient if the accused can show a defeat on a point of law and non-compliance with the provisions of section 211, Cr. P. C. is certainly non-compliance with a provision of law, and, therefore, a point of law.
23. Learned counsel further contends that he has, in any event, been seriously prejudiced, for, the question that was put to him in his examination under section 209 was ambiguous and misleading.
24. It was equally capable of being understood as an enquiry as to whether he had any witness ready1 2 in Court for examination. This could, however, in no circumstances amount to compliance with section 211, for, the question that was put to him was before the framing of the charge. Section 211 requires that the Magistrate should ask the accused to submit his list of witnesses immediately after the framing of the charge and this was clearly not done by the Magistrate in the present case.
25. Learned counsel for the respondent No. 1 and the State have, on the other hand, supported the High Court's order and its reasonings on the ground that neither in Moonda's case nor in Ibrahim's case this Court went to the extent of saying that non-compliance with the provisions of section 211, Cr. P.
26. C. constituted an illegality. In neither case was the commitment actually quashed or set asido, It is pointed out that even in Moonda's case the remand was to the Court of Session after setting aside the convictions but not to the Inquiring Magistrate.
27. Section 211 reads as follows : "211.--(1) The accused shall be required at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial.
(2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time ; and, where the accused is committed for trial before the High Court, nothing in this section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the State a further list of the persons whom he wishes to be summoned to give evidence on such trial."
28. The word employed in subsection (1) is "shall" which is normally mandatory and there are a number of decisions which have taken the view that the failure to ask an accused person to give his list of witnesses will vitiate the proceedings and render them liable to be quashed. This Court also in Moonda's case indicated that the duty cast on the Magistrate under the said section was of a "mandatory nature", because, it was designed to protect a substantial right "vested in the accused to obtain cancellation of a charge framed by a committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused person under section 211 of the Code."
29. On a more careful examination of the facts of Moonda's case, however, it appears that this was not the ground on which the convictions of the accused in that case were set aside. The order of this Court was based on other substantial grounds but in the course of arguments, after reference had been made to the original records, the attention of the Court was also drawn to the fact that the provisions of sections 210, 211, 212 and 213 had also not been complied with. The learned Advocate- General had there attempted to argue that the right of the accused under the Criminal Procedure Code had been substantially satisfied in so far as five defence witnesses had actually been examined by the Magistrate under subsection (3) of section 208, Cr. P. C. This Court did not accept this, because, "the production and examination of witnesses under section 208 does not, by any means, constitute compliance with a duty imposed upon the committing Magistrate by section 211 of the Code". But apart from pointing out the mandatory nature of the duty imposed by subsection
(1) of section 211 and the object intended to be secured thereby this Court did not go to the extent of saying that non-compliance with that duty would vitiate the entire proceedings from that stage.
30. Actually the convictions were set aside on the ground that the accused persons had been denied the opportunity to produce defence evidence at the trial stage and that their examination under section 342 of the Criminal Procedure Code had not been properly conducted, for, the trial Court had before such examination put a question to the Investigating Officer, who had appeared as a prosecution witness, and on the basis of his statement acquitted 9 out of fifteen accused persons.
31. There was an appeal against the acquittal of four persons to the High Court which reversed the order, as the same had been made more or less as a natural consequence of the Investigating Officer's answer, convicted these four persons and sentenced them to death.
32. This Court set aside the convictions and directed the case to be remitted to a Sessions Court to be selected by the High Court for retrial "from the point of conclusion of the prosecution evidence", because, the High Court had fallen into the error of convicting them without giving the accused the opportunity which the law gives them under section 342, Cr. P. C. to state their defence in full and to exercise the option whether or not to produce defence evidence.
33. The order of commitment, it will thus be observed, was not set aside in spite of the observation of the Court that the duty laid down by section 211, Cr. P. C. was of a mandatory nature.
34. With regard to the other six persons whose convictions by the trial Court were upheld by the High Court, this Court took the view that their convictions too should be set aside and they should be treated in the same manner as the accused whose acquittal had been set aside by the High Court on the ground that the case against all the accused persons was a single case and, therefore, "any aspect of the evidence, whether for the prosecution or for the defence, which might go in favour of one or more of the accused persons, would necessarily have a bearing upon the question of guilt or innocence of each of the other accused persons".
35. It is for this reason that Cornelius, C. J., who wrote the judgment in both the cases, clarified in Ibrahitn's case that nothing was said in Moonda's case on the point as to whether the failure to comply with the provisions of section 211, Cr. P. C. "was an irregularity of curable nature or an illegality".
36. In Ibrahim's case the non-compliance with the provisions of section 211 was actually treated as an irregularity of a curable nature and was held not to have vitiated the proceedings, because, each of the accused persons had, in that case, before charge been asked by the committing Magistrate as to whether he would produce defence and each of the accused had answered "Yes, in the Sessions Court, if necessary". In view of these answers this Court took the view that "each of the accused persons was prepared to go to trial on the charge which the Magistrate was proposing to frame and there was no question of his claiming a right to obtain cancellation of the charge by the committing Magistrate himself".
37. Upon this analysis of the decisions in Moonda's case and Ibrahim's case I am of the view that this Court did not in either of the above cases lay down the principle that non-compliance with the provisions of section 211, Cr. P. C. is an illegality which cannot be cured. It appears to me that the learned counsel for the State has rightly contended that in both these cases the view taken was that although the duty cast by section 211, Cr. P. C. was of a mandatory nature and it was expected of the Magistrates to comply with that duty as strictly as possible, non-compliance with it would not vitiate the proceeding unless prejudice had been caused thereby to the accused.
38. In the present case, it is clear that at the time of examination under section 209, Cr. P. C. the appellant was asked if he wished to produce any defence evidence. He said "yes" but did not ultimately produce any such evidence. Then again after the charge was framed he "claimed to be tried". This could only mean "in the Court of Session" as has been specifically mentioned in the charge-sheet under sections 467 and 408, P. P. C. These latter answers have been recorded in the hand of the Magistrate himself, as I have verified from the original record, and is not a printed portion of the order.
39. I am also unable to accept the contention of the learned counsel for the appellant that the order recorded by the Magistrate on the 27th of April 1967, was an anti-dated order, for, it is written in the usual course between other orders, the authenticity and genuineness of which have not been questioned. The mere fact, therefore, that the appellant had applied for the quashment of the proceedings under section 215 of the Code of Criminal Procedure does not necessarily entitle him as of right to such quashment. Even when exercising the jurisdiction under section 215 of the Code of Criminal Procedure the High Court does not act in its original jurisdiction. It has of necessity, therefore, when exercising its discretion to keep in view the principles laid down in section 537 of the Code of Criminal Procedure and to treat them as guidelines for dealing with an application under section 215 of the Code of Criminal Procedure.
40. For these reasons I am of the view that non-compliance with the provisions of section 211 cannot be held to have vitiated the commitment in the present case, for, the appellant has not been prejudiced in any way by such non-compliance. In so holding, however, I must make it clear that this should not be taken as an encouragement by the Magistrates for disregarding the provisions of section 211, Cr. P. C. The duty is there and has to be discharged. If three and half years had not elapsed since the making of the impugned order I too would have been inclined like the Senior Judge in the High Court to quash the commitment. I only wish the High Court would have adopted that course but since the High Court exercised its discretion differently upon grounds which cannot be characterized as perverse I do not think that I would be justified in interfering with that order at this late stage.
41. This appeal is, accordingly dismissed. M. R. KHAN, J.--I agree.
42. WAHEEDUDDIN AHMAD, J.--I agree. PLD 1958 SC (Pak.) 275 PLD 1961 SC 200