Legal Significance of Public Purpose

(By K.S. Raju, Principal Sub Judge, Kozhikode)

It is quite fashionable to link any matter with public purpose. In common conversations, the term is liberally used by politicians, lawyers, social workers and litigants. But the jurisprudential significance of the tennis irrefragable. The expression public purpose in Art. 31(2) of the Constitution is of very wide import and has to be construed in the light of the Directive Principles of State Policy. Under Art. 39(a) and (b) it is the duty of the State to direct its policy towards securing that the ownership and control of material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. In State of Bihar v. Kameswar Singh AIR 1952 SC 259 Mahajan J. observed:

'The expression public purpose is not capable of precise definition and has no rigid meaning. It can only be defined by a process of judicial inclusion and exclusion. In other words, the definition of the expression is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society mid its needs".

Das J. observed:

"We must regard as public purpose all that will be calculated to promote the welfare of the people as envisaged in the Directive Principles of State Policy whatever else that expression may mean".

The concept of public purpose was enunciated and discussed in extenso in the leading case Munn v. Illinois 94 US 113 L-Ed 77 (1877) under the American Constitutional Law. The doctrine declared is that property becomes clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large and from such clothing the right of the Legislature is deduced to control the use of the property and to determine the compensation which the owner may receive for it. Field J. observed as follows:

"The declaration of the Constitution 1870, that private buildings used for public purposes shall be deemed public institutions, does not make them so. The receipt and storage of grain in a building erected by private means for that purpose does not constitute the building a public warehouse. There is no magic in the language though used in a constitutional convention, which can change a private business into a public one or alter the character of the building in which the business is transacted, and it was a strange notion that by calling them so they would be brought under legislative control".

Under the American Constitution the power to acquire private property for public purpose is called Eminent domain. The purposes for which the right of appropriation may be exercised must be determined by the needs of the Governemnf and must be declared by law. No Government can under any circumstance divert one citizen of his estate for the benefit of another, if in no way the public interest is involved. It is nor indispensably necessary that it be made for the State or the Nation itself. What is necessary is that the appropriation must be made for some public use.

In India, Kameswar Singh case (supra), the Bihar Land Reforms Act, 1950 was impugned at first on the ground of colourable exercise of power and when the Constitution First Amendment Act 1951 was passed, this ground disappeared. Then it was contended that the Act was not enacted for a public purpose. The Court held that the requirement of public purpose was involved in the very concept of acquisition. Mahajan, J. reiterated that the Bihar Land Reforms Act, 1950 intended to bring about a reform in the arena of land distribution system of Bihar for the general benefit of the community and hence, Act was passed for a public purpose.

The vague phrase 'public-purpose' cannot be defined better than in the words of Mr. Justice Batchelor which has become the Locus-Classicus on the subject. In Hamabai v. Secretary of State 1911 BLR 1097 it was held that the phrase public purpose whatever else it may mean must include a purpose, that is an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and virtually concerned. In Haidaibax Razyi v. State of Gujarat AIR 1971 Guj. 158 at 160 the view taken is that the basic concept underlying the expression public purpose is general interest of the community. But in Alagappa Chettiar v. Revenue Divisional Officer AIR 1969 Mad. 183 at 186 it was held that the expression public purpose may include a purpose in which the general interest of the community as opposed to the particular interest of the individuals, is directly and virtually concerned. This decision was based on the dictum in Somawanti v. State of Punjab & Ors. AIR 1963 SC 151 wherein Madholkar, J. observed as follows:

"The term 'public purpose' is an inclusive and not a compendious one and therefore, does not assist us very much in ascertaining the ambit of the expression "public purpose'. Broadly speaking the expression public purpose would however include a purpose in which the general interest of the community as opposed to the particular interest of the individuals is directly and virtually concerned".

Before the 44th Amendment of the Constitution, it was a violation of the fundamental right, if the land had not been acquired for a public purpose. The 44th Amendment removed tire right to property from the Chapter on Fundamental Rights (It is to be noted that the 44th amendment was without eliciting public opinion and without scrutiny by the Select Committee). After deleting Arts. 19(1)(f) and 31, the property right was inserted in Part XII Chap. TV (Art. 300 A - No person shall be deprived of his property save by authority of law). After the 44th Amendment, the first question which arose for consideration was whether the property amendment would violate the basic structure enunciated in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.

In a catena of decisions namely Indira Nehru Gandhi v. Raj Narain - AIR 1975 SC 2299, Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, Waman Rao v. Union of India AIR 1981 SC 271, the doctrine of basic structure was upheld. It was also held that Art.19(1)(f) and Art.31(2) were mutually exclusive. Formerly Entry 36 in List I dealt with acquisition or requisitioning of property for the public purpose of the Union. Entry 36 List II dealt with acquisition or requisitioning of property, except for the purposes of the Union subject to the provisions of Entry 42 of List III and Entry 42 List III dealt with principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined and given. These entries were deleted by the 7th Amendment which came into force from 1.11.1956 and new Entry 42 was substituted in List III - Acquisition and Requisitioning of property. Thus, it can be seen that public purpose is the touchstone of both acquisition and requisitioning of property.

The scope and ambit of public purpose cannot be put in water tight compartments. When public purpose is to be seemed through private agency then there is nothing to prevent the government from acquiring it and direct (he private agency to pay the compensation. If the Legislature by a statute declares a particular purpose to be a public purpose, men out of respect of the Legislature, the courts of law may accept it. In acquisition cases, what is the public purpose has to be decided by the Government and the courts of law have no say in this matter.

In Ram Narain Singh & Ors. v. The State of Bihar and Ors. AIR 1978 Pat. 136 relying on the rule in AIR 1963 SC 151 it was held that even though the acquisition of land is for a private concern whose sole aim may be to make profit, if the intended acquisition of land could materially help the national economy or the promotion of public health or the furtherance of the general welfare of the community or something of the like, the acquisition will be deemed to be for a public purpose. In Forane Church v. State of Kerala & Ors. AIR 1971 Ker. 143 the view taken was that if the individuals are benefitted not as individuals but in furtherance of a scheme of public utility, the purpose is a public purpose.

In State of Bombay v. All Gulshan 1955 Bom. 810 the dictum is that acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a public purpose, though it will not be strictly be a State or Union purpose.

In the State of Kerala the past and prospective (rends in the concept of public purpose was discussed in extenso in Mohammed Noohu v. State of Kerala 1952 KLT 498. The observations run as follows:

"There was the older and stricter view that unless the property acquired was dedicated for the use of the public at large or a considerable section thereof, it would be a public use (Vide Nichols in Eminent Domain 1950 Vol. Ill P. 430). But the modern and more liberal view is that it is not an essential condition of public use that the property should be transferred to public ownership or for public uses and that it would be sufficient if the public desires advantage from the scheme. According to the latter view it is no objection to the validity of an acquisition that it is in favour of a private corporation or of individual provided the acquisition results in public advantage. Thus, the acquisition of land to meet the requirement of the school for a larger site area in view of its expanding activities to meet the growing educational needs of the locality was for a public purpose.

In Khandelwal v. U.P. AIR 1955 All. 12, it was held that in India the concept of public purpose is understood as a purpose useful to the public rather than a purpose used by the public. The rationes of the decisions reported in State of Bihar v. Kameswar Singh AIR 1952SC 252, Surya Pal Singh v. State of U.P. 1952 SCR 1056. Thambiran Padayachi v. State of Madras AIR 1952 Mad. 756, State of Bombay v. Bhanji Munji 1955 SLR 777, Moosa v. State of Kerala AIR 1960 Ker. 355 and Safi v. State of West Bengal AIR 1951 Cal. 97 are to the effect that Laws carrying out general scheme of social reform are for public purpose.

The dominant question which arises for consideration is whether the power of the State to decide public purpose can be so rigid so as to exclude judicial review. In Renjith Thakur v. Union of India AIR 1987 SC 2386, the Court observed:

"The doctrine of proportionality as part of the concept of judicial review would ensure that even on an aspect, which is the exclusive province of the Court Martial ...irrationality and perversity are recognised grounds of judicial review".

It cannot be refuted that the scope of judicial review is very wide, The three grounds justifying judicial review are illegality, irrationality and procedural irregularity. The Hon 'ble High Court of Kerala in Ramoo Ammal & Ors. v. State of Kerala & On. 1991 (1) KLJ 740 held that irrationality in public purpose is a ground for judicial review. So, it cannot be found that the power to decide public purpose by the State is an unfettered one.

In acquisition cases, in order to ascertain public purpose the proper approach is to take the scheme as a whole and then examine whether the entire scheme of acquisition is for a public purpose. In each case, all the facts and circumstances require to be closely examined in order to determine whether there is a public purpose. In each case, what is to be determined is whether the acquisition is in the general interest of the community as distinguished from the private interests of an individual. In State of Karnataka v. Renganatha Reddy AIR 1978 SC 215, the Supreme Court observed:

"The intention of the Legislature has to be gathered mainly from the statement of objects and reasons of the Act and its Preamble, The matter has to be examined with reference to the various provisions of the Act, its content and set up, the purpose of acquisition has to be called out therefrom and then it has to be judged whether it is for a public purpose within the meaning of Art. 31(2) and die Law providing for such acquisition".

The terms public purpose and public interst are rather confounding. Prima facie both terms look synonymous. In M/s. J. Mahopatra & Co. v. State of Orissa AIR 1984 SC 1572 it was held that in the case of public interest litigations it is not necessary that the petitioner should himself have a personal interest in the matter. In Bandhua Mukil Morcha v. Union of India AIR 1984 SC 802 at 811 the Hon'ble Supreme Court held that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community. So it can be seen that the term public purpose is based on the principle of public utility or usefulness but public interest in public interest litigations is based on the principle of dispensation of justice to the weaker or vulnerable section of the community.

More recently in Laxman Rao Bapurao Jadhava & Anr. v. State of Maharashtra & Ors. AIR 1997 SC 334 a Division Bench consisting of Their Lordships K. Ramaswamy & G.B. Pattanaik JJ. took the view that acquisition cannot be quashed on the ground that the authorised officer has not satisfied himself that land was needed for a public purpose. On a consideration and contemplation of the above dictum, I come to the conclusion that public purpose is a part and parcel of sovereignty and therefore, the State can acquire private property even without a public purpose.

In Defence of Lawyer Notice

Notice of demand under Section 138(b) of the Negotiable Instruments Act

given by Advocate is valid - Reply to the Journal 1997 (2) KLT- 28 to 30

(By S.K. Tampi, Advocate, Tripunithura)

The doubt and technical lacunae pointed out by Advocate Joseph Thattacherry, Changanacherry regarding the validity of notice served by Advocate on behalf of payee or holder in due course is not to be taken as a mandatory in law of notices. The argument advanced is that the omission of word anybody or on his behalf is a serious omission itself. With due respect to his view it can be opined it is not so. The omission has not defeated intention of the legislature in amending the Negotiable Instruments Act 1881 with insertion of Chapter XVII in the said Act. No doubt that notice is mandatory when there is dishonour of cheques due to insufficiency of funds or other reason mentioned in the Cheque Returned Memo, as provided in S.138(c) read along with S.142(b) of the Act, where as in Chapter VII of the Negotiable Instruments Act S.94 it is specifically stated that, notice of dishonour may be in oral or written be sent by post and may be in any form; but it must only inform the party to whom it is given either in express terms and reasonable intendment that the instrument is dishonoured. Therefore the intention of the legislature though not made clear in S.138 (c) and 142 (b) the word reasonable intendment is deliberately inserted by legislature in S.94 of the Negotiable Instruments Act to say that notice may be in any form and therefore subsequent omission of anybody or on his behalf had not defeated the purpose of legislature and it is not mandatory to do otherwise.

And in 1991 KLT 65 the interpretation of S.138 is Clearly deat, the object of the section is only to make the drawer of the subject to penalty when the cheque is bounced for reasons mentioned therein. And it has to be remembered till the cheque is returned unpaid no offence under S.138 is made out.

To conclude there is absolutely no reason as to why the advocate shall prepare a notice of demand in the name of the payee or holder-in-due course himself and ask him to sign and sent it, when the Advocate himself can use the word under instruction from, or on behalf of etc. without violating any of principles of law.

Abolish C.A.T. - Sooner the Better

(By K. Srinivasan Nair, Former Judicial Officer and Addl. Director of Public Prosecutions)

It was reported that recommendation have been made by a High Level Committee to abolish the Central Administrative Tribunal (C.A.T.). This is a realistic and most essential step, and the recommendations have not come a day too late.

The Tribunal which was established as an alternative forum of the High Court, to deliver speedy justice has not only defeated the purpose for which it was created, but has also turned counter productive, becoming a curse on the tax payer, and the litigant who comes before the Tribunal.

The High Courts with heavy work loads, took a very long time to adjudicate cases of Government employees, who were involved in the task of running the administration. Hence, the Tribunal was established to bring cheap and speedy justice to the employees. But it has miserably failed in this task, moving at snailspace. News papers report that there are about 48000 cases pending adjudication. Even for admitting cases many adjournments are made and final disposals are even slower. Thus the prime object of delivering quick justice has been defeated by the Tribunal itself. What is more, greater del ay is now caused in adjudication of cases by reason of the existence of the Tribunal, The Tribunals are now not substitutes, but subordinate to the High Courts and decisions of the Tribunals can, hence, be challenged before the High Courts. The decision in Chandrakumar case, AIR 1997 Supreme Court P.1125 makes this abundantly clear. Thus a case which will be finally decided by the High Court, say, in five years will now take ten years, as the Tribunal also may take another five years. By adding one more tyre to the system, more delay is caused, in addition to avoidable expenses to the litigant and the State. In these days, when cheap justice is aimed at, why should the poor litigant spend money in the Tribunal and later in the High Court? Why should the State exchequer be depleted by spending huge amounts for paying salaries and incurring other expenses like huge rents, maintenance of cars etc. for the sheer retention of C.A.T.s? It is believed that the Vice Chairman, who are now in the position of District Judges, are paid the salaries and perks of High Court Judges. This is a criminal waste of tax payers money, which can be spent more usefully in other ways. It will also demoralise regular District Judges, who do much more work, and are paid much less. This is a very unhealthy situation for the judiciary and State.

Qualitatively also, the performance of the Tribunals has come in for strong criticism of the Supreme Court in several reported cases, for example (1996) 3 SCC 158. The fact that many groups of employees like Bank employees. Insurance employees. Port Trust employees and other PSU employees have chosen not to go before the C.A.T. shows that even the aggrieved litigants would prefer to steer clear of the C.A.T.

It also appears that those on the top of the C.A.T. prefer to spend much time, travelling to different States in the country and hearing cases, while there is more than enough judicial and administrative work to do at the Head Quarters.

Unlike in the High Court, the functionaries are in three levels. The Chairman holds a high rank with no equal, Vice Chairman and members holding two different lower levels. But when a very important case like the Cabinet Secretary's case came up, was the Chairman available to hear it? We have seen the quality of the decision by the CAT.

The Government of India must take expeditious action to wind up this white elephant, and save the employees from delay, by leaving them to seek redress from the High Courts as before, also avoiding substantial expenses at the C.A.T.

A Note on 1995 (2) KLT 205 (Sc) And 1995 (2) KLT 794

(By John Mathew, Advocate, Trichur)

After a long lapse of over two decades the Hon'ble Supreme Court of India overruled 1973 KLT 138 (FB) in 1995 (2) KLT-205. The learned Judges have also affirmed AIR 1964 S.C. 1099 (Vide 1987 (1) KLT Journal page 22). Thus for Rent Control Appeals under Section 18 of Act 2/65, Section 5 of the Limitation Act ha& become applicable.

In this connection, I may mention two recent rulings of our Hon'ble High Court touching upon Section 5 of the Limitation Act. (1) 1993 (2) KLT 313 and (2) 1995 (2) KLT 794. In the former the learned Judges based their conclusions on Order XXII Rule 9(3) of the C.P.C. read with Section 22 of the Rent Control Act and the proviso to Rent Control Rules added by amendment. Though in the latter case reference has been made to Order 9 Rule 13 of the C.P.C. read with Section 23(1)(h) of the Rent Control Act, it was held that Rent Control Court has also got powers to condone delay.

The Rent Control Act defines only "Rent Control Court" and not Appellate Authority or Revisional Authority or Court. The existence of the words "District Court" has been responsible for finding that the District Court is not a persona designata. But Notification S.R.O. No.1631/89 uses the words guardedly as "District Judge". So far a harmonious construction the District Judge, the Appellate Authority should also be considered as a persona designata. In S.R.O. No.390/73 "Munsiffs" are Rent Control Courts. In my humbly view at present there is no scope for drawing a distinction between "persona designata" and "Court". All the three Courts being creatures of the statute Section 5 of the Limitation Act should, it is submitted apply because it is not specifically excluded.

Commencement of Trial in Criminal Cases

(Agi Joseph, Advocate, Alappuzha)

When the trial commences in criminal cases? The Code of Criminal Procedure 1973 designs three types of trial (1) Sessions trial (2) Warrant trial (a) Warrant cases instituted on the basis of police report (b) Warrant cases instituted those other than a police report (3) Summary trial (a) Cases instituted on the basis of police report (b) cases instituted those other than a police report.

The term trial has not been defined in the Code. It means the judicial process in accordance with law where by the question of guilt or innocence of the person accused of any offence is determined. Therefore where a Magistrate or Court conducts an inquiry for deciding as to the guilt or innocence of any person accused of any offence, such an inquiry is not just an 'inquiry' but it is termed as trial. But where the inquiry relates to a matter other than the determination of guilt or innocence in respect of any alleged offence, such an inquiry is not a trial but a mere 'inquiry'. For instance, inquiry for determining the liability to pay maintenance to the wife, child or parent under S. 125 an enquiry for deciding as to the liability to furnish a bound for keeping peace and or being of good behaviour under S. 107,108,109,110 etc. (See Page 48 R.V. Kelkers Lectures on Cr. P.C. Second Edn.).

The word trial has been used in various sections of the Criminal Procedure old and new code in different contexts with different meanings. In certain sections this word has been used in a very general and wide sense while in certain other sections this has been used in the limited or strict legal sense. Therefore, this expression cannot be given a uniform or fixed meaning wherever this term appears its meaning has to be understood according to the context in which it has been used (Food Inspector Palghat Municipality v. Venkitachalam Chettiar 1979 KLT 750 (DB) Para. 18).

The words tried and trial appears to have no fixed or universal meaning. No doubt, in quite a number of Sections in the Code the words tried and trial have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in other context in the Code, they should necessarily be limited to their can notation and significance. They are words which must be considered with regard to the scheme and purpose of the provision under considerations (The State of Bihar v. Ram Naresh Pandey AIR 1957 SC 389 (3 Judges) See Bihar Coop. D & CM. Union v. Bank of Bihar AIR 1967 SC 389.

The word trial has its origin from French word 'trier' and Latin words 'trees, tria'. Generally trial means the determination of issues arising in a particular case. This is same in both civil and criminal cases.

Dictionary meaning of trial in various dictionaries are:

"The conclusion by a competent tribunal of questions in issue in legal proceedings whether civil or criminal".

                                                        - Strouds Judl. Dictionary 3rd Edn. Vol. 4 P. 3092.

"The hearing of a cause, Civil or Criminal before a Judge who has jurisdiction over it according to the laws of the land."

-Whartons Law Lexicon 14th Edn. P. 1011.

"A step in an action, prosecution or other judicial proceeding by which the question of fact in issue are decided."

                                                      -W.H. Byrne Dictionary of English Law (1923 Edn)

"A judicial examination in accordance with law of the land or a cause, either civil or criminal of the issues between the parties, whether of law or fact before a Court that has jurisdiction over it. It concludes all proceedings from time when issue is joined or more usually when parties called to try their case in court to the time of its final determination".

                                                                                - Blacks Law Dictionary (1968 Edn.)

"Trial means the mode of determining a question of fact in a Court of law, all proceedings from the time when the parties are called to try their cases".

                                                           -Websters Third New International Dictionary Vol.2.

In State Bank of India v. Sundara Money AIR 1976 SC 1111, Krishna Iyer, J. speaking for the Court observed in this inimitable style that "dictionaries are not dictators of statutory construction where the benignant mood of a law may furnish a different denotation".

In Gramaphone Co. of India v. Birendra Bahadur AIR 1984 SC 667 Court observed that "the same word may mean different things in different enactments and in different contexts. It may even mean different things at different places in the same statute. It all depends on the sense of the provision where it occurs. Reference to dictionaries is hardly of any avail, particularly in the case of words of ordinary parlance with a variety of well known meanings such words take colour from the context".

The term TRIAL is not defined in the present Code of Criminal Procedure 1973. But the term inquiry is defined in S. 2(g) of the Code that 'inquiry means every inquiry, other than a trials conducted under this Code by a Magistrate or Court'. Thus, "the definition puts it beyond doubt that an inquiry is something different from trial and that inquiry stops when trial begins" (per Justice Krishna Rao in Kingam Savaranna v. State AIR 1957 AP 472). This same view was also expressed in 1975 KLT 703 (705), 1989 Crl. L J 600 (611) FB, AIR 1957 SC 503, AIR 1957 SC 389. Thus, when inquiry stops trial begins in cases where the Code is silent regarding the commencement of Trial.

In Asgarali Nazarali Singapore Walla v. State of Bombay (Justice Bhagavathi, Jagannadha Das, Imam JJ. Govindamenon and Kapur JJ.) AIR 1957 SC 503 Court observed that (1) A trial is the conclusion by a competent tribunal of questions in issue in legal proceedings whether Civil or Criminal (2) The trial is not complete until sentence has been passed or the offender has been ordered to be discharged (R Vs. Grant (1951) 1 KB 500).

In Hari Vishnu Kammath v. Election Tribunal, Jabalpur AIR 1958 MP 168, Justice Hidayathulla and B.K. Choudhuri J. observed that the trial has two meanings. It may mean (1) the trial of controversy that arises from an issue or (ii) trial of election petition or a complaint or an action from beginning to end.

The term trial is defined in the old Code of Criminal Procedure 1872 (Act X of 1872).

"Trial means the proceedings taken in Court after a charge has been drawn up and includes the punishment of the offender".

"Inquiry includes any inquiry which may be conducted by a Magistrate or Court under this Act."

The words inquiry and trial were both defined in the Code of 1872 but the definition of the word trial was omitted in the 1882 Code andlateroninthel898Code the definition of the word 'inquiry' was slightly altered by adding the phrase "other than a trial' leaving the term 'trial' undefined. But in the 1955 amendment the words 'Commencement of trial' were introduced in S.251A in the first time' which clearly denote that the trial starts in a warrant case instituted on a police report right from the stage when the accused appears or is brought before the Court.

Commence of trial in Sessions Cases

In A.R. Anthulay v. R.S. Nayak (Justice D.A. Desai, R.S. Pathak, O. Chinnappa Reddy JJ., A.P. Sen and Balakrishna Eradi JJ.) AIR 1984 SC 718 Court observed as follows:-

"Trial follows cognizance and cognizance is preceded by investigation. This is the scheme of the Code in respect of cognizable offence, the informant approaches an officer in charge of a Police Station when in the case of cognizable offence, a police officer on receipt of information of an offence proceeds under Chapter XII he starts with investigation and then submits his report called the Police Report upon which cognizance is taken and then follows trial" (See H.N. Rishbud and Inder Singh v. State of Delhi AIR 1955 SC 196 (203-204).

In Union of India v. Madan Lal Yadav AIR 1996 SC 1340 Justice K. Ramaswamy observed (Obiter Dicta) in para. 27 that "it is settled law that under the said Code trial commences the moment cognizance is taken and process is issued to the accused for his appearance".

The word cognizance has been used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. What is taking cognizance has not been defined in the Code. The word cognizance has no mysterious or esoteric meaning i n Criminal Procedure". It only means "became aware of and when used with reference to a Court or Judge to take notice judicially".

In Darshan Singh Ram Krishan v. The State of Maharashtra (3 Judges) AIR 1971 SC 2372 Para. 8 court observed that "Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint or on a police report or upon information of a person other than a police officer. Therefore, when a magistrate takes cognizance of an offence upon a Police Report prima facie he does so of the offence or offences disclosed in such Report."

S. 193 of the Cr. P.C. is as follows:-

"Except as otherwise expressly provided by this Code or by any other law for the time being in force no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code".

When an offence is exclusively triable by a Court of Session according to S. 26 read with the first schedule the magistrate taking cognizance of such offence is required to commit the case for trial to the Court of Session after completing certain preliminary formalities specified in Ss. 207 and 208. It will be noticed that both under S. 193 and 209, the commitment is 'of the case and not of the accused'. Taking cognizance is not an administrative act but it is a judicial act. Hence, according to Ss. 26,193 read with 209 and I Schedule Cr. P.C. Trial in a Sessions case start only when the cognizance was taken by the Session Court.

Trial in Warrant Cases

(a) Cases instituted on the basis of Police Report

Section 238 of the Cr. P.C. as follows:

'When, in any warrant case instituted on a Police Report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of S. 207'.

Before the amendment of 1955, there was no question of trial starting unless the charges were framed because under Ss. 252 when the accused appeared or was brought before the Magistrate, the magistrate had to hear the complainant and take evidence as may be produced by him. After summoning the witness under S. 252(2) the Magistrate had to take the evidence and after examining the same he had to determine whether a case was made out by the prosecution which if unrebutted would warrant the conviction of the accused. If the magistrate was of the opinion from the examination of the evidence taken at the earlier stage that the accused had committed an offence triable under the said chapter, then only charge was to be framed.

In Hari Dass Sanyal v. Sritulla ILR 15 Cal 608 (FB) Calcutta High Court opined that 'the trial will not begin until after the accused is called upon to meet the charge framed against him, that is to say trial is a proceeding which can end in conviction or acquittal and all proceedings anterior to it must be regarded as inquiry. "The same view was expressed in Hema Singh v. Emperor Air 1929 Pat 644 (DB), Emperor v. Mating Ba Thon AIR 1931 Rang 225 (FB), Narayanaswami Naidu In re ILR 32 Mad 220 (FB),Queen Empress v. Chotu ILR 9 All 52 (FB)

In Sarkar v. Madho Ram AIR 1950 Raj 34 Rajasthan High Court opined that "In warrant case, I am inclined to think that the trial can be said to begin only after the charge is framed. According to S. 256 which occurs in chapter as Trial of warrant cases' it is only after the framing of the charge that the accused can claim to be tried".

Even in that time also few courts had taken a contrary view. In a Division Bench of Calcutta High Court in Gomer Sirdha v. Queen Empress ILR 25 Cal 863 their Lordships observed that 'trial' commences when the case was called on with the Magistrate on the Bench and the accused in the dock.

In Dagdu Govlndset v. Punjaveduwani AIR 1937 Bombay 55 (ILR (1937) Bom. 211) Justice Boomfield observed as follows:-

"But according to my experience of the administration of Criminal justice in this Presidency which is not inconsiderable the Courts have always accepted the definition of trial which has been given in ILR 25 Cal 863, that is to say 'trial' has always been understood to mean the proceeding which commences when the case is called on with the Magistrate on the Bench, the accused in the dock and the representatives of the prosecution and defence if the • accused be defended present in Court for the hearing of the case".

The same view also expressed in Ramachandra Narhar v. Emperor AIR 1944Bom 14, Sahib Din v. Emperor ILR 3 Lah 115 (AIR 1922 Lah. 49) and the Court of Judicial Commission in Sind in Labh Singh v. Emperor AIR 1934 Sind 106.

By virtue of the amendment of 1955, the words "commencement of trial" were introduced for the first time which clearly denote that the trial starts in a warrant case right from the stage when the accused appears or is brought before the Court. This appears that the main intent and purpose of introducing the words 'commencement of trial' by the amendment Act of 1955 which has not appeared in the Code of 1898 or in the various amendments made before the Act of 1955 to the Code. Thus, if the trial begins at that stage, it cannot be said that the proceedings starting with S. 251A amount to an inquiry within the meaning of S. 2(j) of the Code. In other words, the simplified procedure introduced by the amendment of 1955 which is almost coincides with S. 238 of 1973 Code i.e. the trial starts when the magistrate satisfy himself that he has complied with the provisions of S. 207.

Therefore, Lordships Justice S.M. Fazal Ali in V. C. Shukla v. State AIR 1980 SC 962 (S.M. Fazal Ali, P.N. Shingal, D.A. Desai and A.P. Sen JJ.) observed as follows:-"We are satisfied that the proceeding starting with S. 238 of the Code (1973) including any discharge or framing of charges under S. 239 or 240 amounts to trial".

Per his Lordships Justice Desai in the same Judgment that "the Trial cannot commence unless the accused is furnished with copies of requisite documents. And the duty is cast on the magistrate to ascertain at the commencement of the trial that S. 207 is complied with and if it is not done as part of trial furnish the requisite copies".

But in Nagarajan v. Khadar 1989 (1) KLT 644 Kerala High Court opined that "After referring the different provisions of the Code, the Supreme Court has held in V.C. Shukla v. State (AIR 1980 SC 962) that there is no question of starting the trial until charge is framed. What is the terminal point of trial, if its starting point is the framing of charge? All steps which a Criminal Court adopts subsequent to the framing of charge and until the pronouncement of judgment can be treated as trial proceedings".

With due respect to his Lordships, I am not able to agree with the said opinion because the ratio in V. C. Shukla v. State was not correct as quoted in the said decision. In AIR 1980 SC 962 Page 986-B Para. 38 line 4 quotes "This is therefore, is an additional reason to hold that the proceedings starting from S. 251A in the previous code and S. 238 i n the code of 1973 do not amount to an inquiry at all but amount to the starting of a trial straight away" (per Fazal Ali, J. for himself and on behalf of A P Sen J.) Thus, trial in a warrant case instituted on a police report, the date on which the documents under S. 207 of the Code are furnished to the accused and the Magistrate satisfies himself of the same under S. 238 of the Code.

Warrant cases instituted other than a Police Report and Summons Cases

Section 200 'A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses.

(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint or

(b) If the magistrate makes over the case for inquiry or trial to another magistrate under S. 192:

Provided further that if the Magistrate makes over the case to another Magistrate under S. 192 after examining the complainant and die witnesses the later Magistrate need not reexamine them.'

Section 202 "(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192, may, if thinks fit, postpone the issues of process against the accused and either inquire into the case himself or direct an investigation, to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.

Provided that no such direction for investigation shall be made:-

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under S 200.

(2) In an inquiry under Sub s. d). die Magistrate may, if he thinks fit take evidence of witnesses on oath.

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-s. (i) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code as an officer in charge of a police station except the power to arrest without warrant."

Section 204 " (1). If in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, and the case appears to be.

(a) Summons- case, he shall issue his summons for die attendance of accused-----".

As stated above, it is the settled position that 'when inquiry stops trial begins' in cases where the code is silent regarding commencement of trial. When a case is instituted on the basis of a complaint whether it is warrant or summons case cognizance is taken only after the inquiry by the Court as provided in S. 202 of the Cr. P.C. or on the basis of the result of investigation.

Patna High Court observed that the object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon, while the object of an investigation is to collect evidence (AIR 1920 Pat. 563 (565). An inquiry must be by a Magistrate or Court whereas an investigation is by a police officer or any person other than a Magistrate or Court (AIR 1954 Cal. 350 (351), AIR 1942 Bom. 42 (43)). Thus, in a case where a cognizance is taken after the inquiry by the Court as specified in S. 202(2) the trial starts the moment when inquiry stops.

But it is different in the case where a cognizance is taken o the basis of complaint of a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or on an investigation report (Summons case only). In such cases, trial starts only when the issue of process for the appearance of the accused (See S. 204 Cr. P.C.) and in the case of a cognizable offence (Summons case) that the informant approaches Police Station, the trial starts only when the cognizance is taken (See AIR 1984 SC 718).

Therefore note 3 to R. 132 of the Criminal Rules of Practice in Kerala have to be amenended except 3(b).