Victim at the Mercy of Witnesses

(By Justice B.N. Patnaik, Judge, High Court of Kerala)

At the bottom of every dossier of criminal trial instituted by the Police, there lies the statements of the witnesses given in answer to the relevant and admissible questions put by the counsel and the Presiding Judge of the Court. No amount of rhetoric or voluminous description of facts in any document can possibily diminish the importance of the oral testimony that constitutes die solid foundation of the court's verdict.

Examination of material witnesses who are essential to the unfolding of the narrative on which the prosecution is based is an integral part of investigation. A witness could be an attestor, or a corroborator, a deponent, a testifier of some fact or circumstances, or an expert on a subject. Ss. 160 to 163 of the Code of Criminal Procedure, 1973 which deal with the power and contraints of a Police Officer to examine witnesses during the investigation precisely lay down:

1. A Police Officer making an investigation may require the attendance before himself of any person who appears to be acquainted with the facts and circumstances of the case.

2. No male person under, the age of fifteen years or woman shall be required to attend at any place other than the place in which he or she resides.

3. Such person shall be bound to answer truly all questions relating to such case other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

4. The statement shall not be used for any purpose except to contradict him if called as the prosecution witness.

5. The statement shall not be signed by the person making it.

6. No Police Officer shall offer or make any inducement, threat or promise to a person in the course of any investigation.

In Smt. Nandini Satpathy v. P.L. Dani (AIR 1978 SC 1025) it is pointed out that-

"If there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, tiring interrogative prolixity, intimidating methods but sufficiently substantial, applied by the police-man for obtaining information becomes 'compelled testimony".

Section 179 of the IPC is one of the provisions to enforce compliance when a public servant legally demands truthful answer but is met with blank refusal or plain mendacity. But where there is no wilful refusal but only unwilling omission or innocent warding off, the offence is not made out.

Sections 3,4 and 8 of the Oaths Act, 1969 lay down inter alia that all courts having authority to receive evidence have power to administer oaths and affirmation to the witnesses; Oath or affirmation shall be made by all witnesses, who are required to give evidence before any court except a child under twelve years of age; and that every person giving evidence shall be bound to state the truth on the subject.

Sections 118 and 119 of the Indian Evidence Act, 1872 state that ail persons shall be competent to testify unless they are incapable of understanding the questions and giving rational answers owing to tender years, extreme old age and disease. A dumb witness may give his evidence in the manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in the open court.

Section 191 of the Indian Penal Code, 1860 contemplates punishment for giving prevaricating and false evidence in a court. Merely because a person makes two contradictory statements, one of which must be false, it does not make out a case of perjury unless the falsity of one of the two statements is positively proved to be so.

The credibility of the witnesses is decided by ascertaining, first, whether they have the means of gaining correct information; secondly, whether they have any interest in concealing truth; thirdly, whether they agree in their testimony. The first two of these tests are applicable to the witnesses individually, the third to the whole of the testimony together.

In order to secure the conviction of the accused, the prosecution should examine such witnesses who satisfy the above tests of being trustworthy persons. Victim is an interested witness and his testimony needs corroboration from independent source. Marshalling of evidence and collating the same are the functions of the Prosecutor and the Judge. But in a large number of cases the witnesses while being examined in the court turn hostile to the prosecution. A feeble minded witness is won over by the accused either by the offer of money or by acts of intimidation. On their own volition a relative of an accused may resile out of natural love and affection and an employee out of a sense of gratitude. (State v. Sanjay - AIR 1978 SC 961). The merit of a criminal case hinges mainly on the reliability of the oral testimony of the material witnesses. If they fail to support the prosecution, the culprit goes scot free.

Witnesses take oath to speak the truth for one of two reasons: they either love God or fear punishment. When both these break down, the result is a situation that breeds perjury, distortion of facts, erroneous view point and perverse judgment. The unfortunate victim receives the reward of ridicule from the offender and finally suffers in silence.

Victim's Plight

(By: Justice B.N. Patnaik, Judge, High Court of Kerala)

"Revenge" is the word that constantly reverberates in the mind of a victim of crime of violence immediately after being injured until the offender is suitably punished. If the offender escapes the punishment, the disgruntled victim suffers from mental depression and meloncholia. When the criminal goes unpunished, the criminals are encouraged and the society suffers. The victim or his kith and kin become frustrated and contempt for law develops. If the victim, however, manages to muster enough strength by some means later, there ensues a reaction in the form of internecine gang conflicts, remoreseless cruel behaviour and attempt to violate law to have the cynical satisfaction of retaliation.

Offences of murder, dowry death, grevious hurt and rape (Sections 299,300,304B, 320 and 375 of the Indian Penal Code, 1860) are some of the worst crimes of violence, that generate the intense desire in a victim to avenge the wrong doer. The outcome of all these crimes is torture to the victim invariably. "Torture of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering... .Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is desire to kill and destory including yourself." (Shri D.K. Basu v. State of West Bengal - JT1997 (1) SC 1). The aftermath of such crimes could be, (1) the dependents of the deceased being driven to a state of penury and destitution; (2) life-long mental agony of the parents and other near and dear ones of the victim of dowry death for no fault of theirs; (3) permanent or partial disability resulting in the loss of earning capacity of the victim of grievious hurt; and (4) remote chance of a victim of rape to lead a happy marital life owing to neurotic trauma and social stigma. The repressed emotion of wealth on account of the unfulfilled wish for retribution needs sublimation. This can be achieved either by leading a saintly life or by exacting due compensation and reparation.

In D.K. Basu's case, the Supreme Court found that there is ample justification in the award of compensation to a victim of custodial violence and death in the context of the fundamental rights guaranteed to a citizen under Articles 20(3), 21 and 22(2) of the Constitution of India. It said :

"In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma, a person experiences is beyond the purview of law."

"There is no wrong without a remedy (UBI JUS IBI REMEDIUM). The law wills that in every case where a man is wronged and endamaged he must have a remedy. A mere declaration of invalidity of an action or finding of custodial violence or death in lock-up, does not by itself provide any meaningful remedy to a person whose fundamental right to life has been infringed. Much more needs to be done.

Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalising the wrongdoer and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen.

It is now a well accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the State is vicariously liable for their acts, In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds."

The Supreme Court in Stare of Madhya Pradesh v. Shyamsunder Trivedi (JT1995 (4) SC 445) suggested :

"The Courts are also required to have a change in their outlook and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that so far as possible within their powers, the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the Majesty of Law has prevailed."

Do the other victims of crime of violence not deserve similar humane treatment? The answer perhaps is in the affirmative.

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Jottings

Some facts are of such common knowledge that they do not have to be proved. When they are such, it is said that the court will take judicial notice of them. The leading decision on the doctrine of judicial notice was rendered by Chief Justice White of the United States of America many years ago and came about in a somewhat unusual manner. It appeared that the Justices, in conferring or talking about the cases among themselves, had a habit of drinking mint juleps. Their custom became known to the good people of Washington Town, and a protest arose as to the propriety of the existing situation. Whereupon the Chief Justice told his brotheren that thereafter there would be no sipping of mint juleps except when it was raining. The following day at Conference, the Justices, appeared in a very glum attitude, and the Chief Justice requested that they disperse themselves to the various parts of the building and report concerning the condition of the weather. This was done, tfie Justices reporting that much to their regret, there was not a cloud in sight. Thereupon the Chief Justice, delivered himself of the following opinion :

'This is the Supreme Court of the United States of America. It has jurisdiction from ocean to ocean and from lakes to Gulf and also of the Islands of the sea and over. So broad an expense of territory the court must take judicial notice of the fact that it's raining somewhere in the United States today."

Uncertainties of the Law

Client        "'Now what do you think? Have I a case, and can you win it for me?"

Lawyer :"Ibelieveyouhaveacaseallrightandlcan winit, barring the uncertainties of the law."

Client        'What do you mean by uncertainties of law?"

Lawyer : "Well, I can best explain by citing my own experience. A few years ago my wife sued me for divorce on a charge of impotency. At the same time our maid sued me on a paternity charge. They both won".

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Tailpiece

Judge (To Counsel): You may go an addressing me for hours and hours. I am telling you point blank. I will hear it with one ear and it will go out of the other.

Embarrased Counsel: Your honour is right. There is nothing to prevent in between.

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).

A Note of Dissent on M/S. Bescot v. Union of India - 1998 (1) KLT 162

(By Shahul Hameed Moopan, Advocate, Ernakulam)

1. Central Excise duties form the single largest source of revenue for Central Government. The levy and collection of the duty is under the authority of Central Excise Act, 1944 and rules framed thereunder. The Act was originally referred to as Central Excise and S alt Act 1944, till the word' salt' was omitted, from the long title, by Finance Act, 1996 (33 of 1996). The Act is no longer Central Excise & Salt Act 1944, but Central Excise Act, 1944.

2. Chapter VIA of the Central Excise Act (hereinafter referred to as Act) deals with the Appellate and other specified remedies against the orders passed by various authorities constituted under the Act. Similar to Appellate Tribunal constituted under Income Tax Act, 1961, an Appellate Tribunal is constituted under the Act, viz., Customs Excise and Gold (Control), Appellate Tribunal, (in short CEGAT) headed by its President, appointed by the Central Government. S. 35D of the Act deals with the procedure to be followed by the Tribunal. Before the deletion of the relevant provision viz. S.35D (2) with effect from 26.5.1995, by Finance Act, 1995 (Act 22 of 1995), only special Benches of Tribunal, constituted by the President, were vested with jurisdiction to hear and dispose of the Appeals against the decision or order relating, among other things, to determination of any question having a relation to rate of duty of excise or to value of goods for the purpose of assessment. By the above referred to deletion/amendment, the concept of 'Special Bench' referred to in the Act is no longer in existence and all the Benches of CEGAT with a quorum of more than 1 member (subject to territorial jurisdiction) can hear and dispose of all the appeals c6ming before it, irrespective of the involvement of dispute regarding Rate of Duty of Excise or Valuation of Goods for the purpose of assessment, in the impugned order.

3. In M/s. Bescot v. Union of India (1998 (1) KLT 162), our Hon'ble High Court considered the ambit and scope of S. 35D of the Act. "While disposing of O.P. 8414 of 1997, in challenge of order dated 3.12.1996 passed by the 2 member bench of CEGAT in an appeal before it, our Hon'ble High Court is found to have failed to take note of the amendments/deletion referred to in para.1 and 2 above, thereby committing a serious error in quashing the impugned order of CEGAT and holding that Regional Benches of CEGAT has no jurisdiction to decide the appeals relating to rate of duty, but Only a Special Bench constituted under sub-s.2 to S.35D, which provision stood repealed with effect from 26.5.1995.

4. In short, M/s. Bescot v. Union of India (1998 (1) KLT 162), is not a good law and I feel that it requires reconsideration.