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Criminal Revision Case No. 63 of 1967, decided on 11th July 1968.

S. 211 --Non‑compliance with provisions of section‑Whether vitiates commitment and trial‑Depends upon circumstances of particular case‑Accused not availing of opportunity of producing defence witnesses under S. 208, Cr. P. C. or even thereafter before framing of charges‑Accused forthwith claiming to be tried by Sessions Court, after seeing charges‑ Non‑compliance with provisions of S. 211, in circumstances, held, did not vitiate commitment or trial.

The question of non‑compliance of provision of section 211 of the Criminal Procedure Code in each case shall be decided by its own factors.

The main purpose of asking the accused under section 211 of the Cr. P. C. to forthwith furnish a list of defence witnesses is to obtain cancellation of the charges framed by the Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused under section 212 of the Criminal Procedure Code. But in a case where the accused did not avail of the benefit of section 208 of the Code nor adduced any evidence subsequently on a date fixed for the purpose and ultimately, on perusal of the charges, claimed to be tried by the Court of Sessions or in other words where the accused was all through reluctant to adduce defence witness and he prepared himself mentally to go before the Court of Session to face the charges prepared by the Magistrate, the question of cancellation of the charges on taking a list of defence witnesses and examin ing some of them at the discretion of the Magistrate, in such circumstances, is immaterial.

Moonda and others v. The State P L D 1958 S C (Pak.) 275 and Ibrahim and others v. The State P L D 1961 S C 200 fol.

, S. 3 (ii)‑Managing Director of Private Limited Company‑Not a "public servant"‑Penal Code (XLV of 1860), S. 21.

Syed Azizul Huq and Sultan Hossain Khan for Petitioner.

Md. Ismail and Aminul Huq for the Opposite‑Parties.

This revisional application is directed against an order of commitment passed by Mr. M. S. Uddin, Magistrate, 1st Class, Noakhali.

2. The short facts of the case are that the Delta Agency Ltd. of Choumuhani, a private limited company in a meeting decided to establish the Delta Jute Mills in the same locality and spent a sum of Rs. 65,000, towards that scheme. The share holders of the Delta Agency including the complainant opposite -party put forward a pressing demand for a refund of their share money and the Board of Directors of the Delta Jute Mills Ltd. by a resolution dated 28‑2‑66 sanctioned a sum of Rs. 50,1.00, in this behalf. The accused‑petitioner Alhaj Abdur Rab was the Managing Director of both the Delta Agency and the Delta Jute Mills. Pursuant to the resolution dated 28‑2‑66 a Cheque "Account payee" for a sum of Rs. 50,000, was issued for payment to the shareholders. The Cheque was signed by the petitioner as the Managing Director of the Delta Jute Mills and also by the Accountant of the firm according to rules. But soon after the endorsement "Account payee" on the Cheque was penned through by the petitioner and having converted the cross‑cheque into a bearer cheque by the said method, the petitioner himself withdrew the sum of Rs. 50,000, in cash and converted the same to his own use. The shareholders including the complainant for whom this amount was sanctioned did not receive any money as a result thereof. A complaint having been lodged with the Sub‑Divisional Magistrate, Sadar, Noakhali charging misappropriation against the accused, the said Sub Divisional Magistrate issued process against the accused and subsequently transferred the case to the file of Mr. M. S. Uddin, Magistrate, 1st Class for inquiry under Chapter XVIII of the Code of Criminal Procedure. The learned Magistrate examined six wit nesses and found a prima facie case against the accused‑petitioner under sections 406/408 and 467 of the Penal Code and accordingly committed him to the Court of Session to meet those charges.

3. On behalf of the accused‑petitioner, it was urged that the allegations were false and the case was brought at the instiga tion of others, just to harass him.

4. The petitioner thereafter moved the learned Sessions Judge, Noakhali under sections 435 and 438 of the Code of Criminal Procedure with a prayer to refer the matter to the High Court for quashing of the said order of commitment. The learned Sessions Judge after hearing the parties and considering all aspects of the case rejected the petition. Hence the present petition before us.

5. Mr. Syed Azizul Huq, the learned Advocate appearing for the petitioner has firstly contended that the charge against the accused‑petitioner has been framed in this case on 22‑7‑67 after the order of commitment made on 20‑7‑67 and this procedural defect has seriously prejudiced the accused‑petitioner and affected the commitment itself.

6. This grievance of the learned Advocate does not appear to be correct. The order‑sheet of the case shows quite the reverse. It is true that the order of commitment bears the date 20‑7‑67 but turning to the order‑sheet we find that the order of commitment was actually made on 22‑7‑67. The order dated 22‑7‑67 in the order‑sheet clearly shows that the charges were first framed and then the commitment order was passed. The date, given in the commitment order thus appears to be an apparent mistake and might have been put due to inadvertence. The petitioner cannot take advantage of this bona fide clerical mistake. At the same time we cannot also appreciate the carelessness of the Magistrate concerned. This technical point in our opinion has no merit.

7. It has next been contended that the learned Magistrate has failed to comply with the mandatory provisions of section 211 of the Coda of Criminal Procedure and as such the order of commitment is liable to be quashed. The learned Advocate has in this connection referred to the case of Moonda and others v. The State (P L D 1958 S C (Pak.) 294):

Section 211 (1) of Criminal Procedure Code provides that after the framing of the charge the Magistrate must at once require the accused to give a list of his witnesses whom he wishes to be summoned to give evidence on his trial.

Section 211(2) of the said Code gives the Magistrate a discretion to allow the accused to put in a further list of wit nesses at subsequent stage and the accused a right to put in a further list of witnesses at any time before his trial to the clerk of the Court.

8. In this context the Supreme Court of Pakistan in the above case Moonda and others v. The State observed as follows :‑

"The production and examination of witness under section 208, Cr. P. Code, does by no means constitute compliance with the duty imposed upon the Committing Magistrate by section 211 of the Code, which duty must be interpreted as a concomitant of a 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 persons under section 212 of the Code."

9. The Supreme Court, as it appears from the above observation held there that the Magistrate has a duty under section 211, Cr. P. C. to ask the accused to give a list of his witnesses to obtain cancellation of the charge framed against him but the Supreme Court in the said case, if we are permitted to say so, did not say anything about the effect of non‑compliance of section 211, Cr. P. C. Nothing has been said in that case as to whether such failure is an irregularity of curable nature or illegality vitiating the commitment. As a matter of fact the Supreme Court did not also quash the commitment in that case on the ground of failure of the Magistrate to comply with the provision of section 211 of the Code. The case of Moonda and others v. The State referred to above does not, therefore, help the petitioner.

10. The records of the instant case show that the accused did not at all avail of the provision of section 208, Cr. P. C. He did not examine any witness under that section during the enquiry. The accused while examined under section 209 of the Criminal Procedure Code on 27‑4‑67 was specifically asked as he replied in the affirmative. The learned Magistrate then fixed the case for hearing and defence on 18‑5‑67, but the accused did not adduce any defence witness. Thereafter the arguments for the prosecution as well as for the defence were heard on 18‑5‑67, 8‑6‑67 and 20‑6‑67 and the case was fixed for orders and framing of charges on 12‑7‑67. At that stage the accused‑petitioner filed a petition for adjournment on the ground of illness and in the meantime moved the Sub -Divisional Magistrate for transfer of the case. The prayer for transfer having been rejected the case was taken up by the learned Inquiring Magistrate on 22‑7‑67. On that date the charges were framed against the accused and read over and explained to him. On hearing the charges the accused pleaded not guilty and claimed to be tried in the Court of Session and then the commitment order was passed. The question raised above shall have to be judged in the light of facts and circum stances of the case stated herein.

11. A careful perusal of sections 212 and 213 of the Criminal Procedure Code will show that the main purpose of asking the accused under section 411 of the Code to forthwith furnish a list of defence witnesses is to obtain cancellation of the charges framed by the Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused under section 212 of the Criminal Procedure Code. But in a case where the accused did not avail of the benefit of section 208 of the Code nor adduced any evidence consequently on a date fixed for the purpose and ultimately, on perusal of the charges, claimed to be tried by the Court of Session or in other words where the accused was all-through reluctant to adduce defence witnesses and he prepared himself mentally to go before the Court of Session to face the charges prepared by the Magistrate, the question of cancellation of the charges on taking a list of defence witnesses and examining some of them at the discretion of the Magistrate, in such circumstances, is immaterial. The plea of the accused claiming right to obtain cancellation of the charges by the Committing Magistrate himself, in the circumstances, does not arise.

12. The question of non‑compliance of provision of, section 211 of the Code in each case shall be decided by its own factors. The accused had ample opportunity to defend himself but he did not avail of the same. He claimed to be tried in the Court of Session. There were also attempts to delay the proceedings. So in the background of the facts, the failure on the part of the Committing Magistrate to put such a question after framing of the charges is not so material as the accused is not prejudiced thereby in any way and the irregularity, if any, does not cause any miscarriage of justice in the case. In this connection we may profitably refer to the case of Ibrahim and others v. The State (P L D 1961 S C 200) where the above case of Moonda and others v. The Stare has been discussed and distinguished. In that case on a question whether the failure on the part of the Committing Magistrate to ask the accused to give a list of defence witnesses after framing of the charges against them rendered the trial illegal, the Supreme Court observed as follows:‑

"The duty imposed upon the Committing Magistrate by section 211 of the Criminal Procedure Code, 1898, no doubt, must be interpreted as a concomitant of a 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 persons under section 212 of the Code, but here each of the accused persons when questioned before the charge had made it clear that he did not wish to produce any defence evidence at any stage earlier than the trial in the Sessions Court. In other words, each of the accused persons was prepared to trial on the charge which the Magistrate was proposing to frame, and there was, therefore, no question of his claiming a right to obtain cancellation of the charge by the Committing Magistrate himself."

13. We respectfully agree with the above observation. The Supreme Court in that case did not set aside the order of commitment or the order of conviction on trial. The effect there fore, is that in the given circumstances the commitment or the trial was not vitiated. Judging the facts of the present case, in the light of the above observation, we hold that the point raised by the learned Advocate has no force.

14. By referring to Pakistan Criminal Law Amendment (East Pakistan Amendment) Act (Act III of 1967), the learned Advocate has lastly contended that the accused being the Managing Director of the Delta Jute Mills is a public servant and the learned Magistrate has no jurisdic tion to enquire and hold the committal proceeding and the alleged offence being exclusively triable by the Special Judge appointed under Criminal Law (Amendment) Act, 1958, the commitment is bad in law.

15. This contention, is in our opinion based on misconcep tion, section 3 of the Pakistan Criminal Law Amendment (East Pakistan Amendment) Act, 1967, on which the learned Advocate relies, reads as follows:

(i) in clause (a), for the words and commas "by an organisa tion or body corporate notified by the Central Government, in pursuance of the next succeeding clause" the words and comma "by a corporation or other body or organisation" set up by the Central Government, shall be substituted ; and

(ii) in clause (b), the semi‑colon at the end shall be omitted and thereafter the words and semi‑colon "and includes a Chairman, Vice‑Chairman, Member, Officer or other employee of a Local Council, as defined in the Basic Democracies Order, 1959 or of a Municipal Committee, or a Chairman, Director, Managing Director, Trustee, Member, Officer or other employee of any corporation, or other body or organisation constituted or established under any law;" shall be added.

16. The petitioner as a Managing Director of the Delta Jute Mills does not fall within the ambit of section 3 quoted above and as such he is not a public servant within the meaning of section 21 of the Penal Code. The point raised above has, therefore, no substance. No other point of law was raised in the case.

17. The Committing Magistrate after considering the evidence and materials on record found a prima facie case and accordingly committed the accused to the Court of Session. The learned Sessions Judge on re‑assessment of the evidence affirmed the order of the learned Magistrate. A prima facie case having been established, we cannot take any exception to the order on merits.

18. The order of commitment was passed on 22‑7‑67, but the trial of the case could not proceed thereafter due to dilatory attitude of the petitioner.

19. Considering all aspects of the case we do not think it a fit case for our interference.

20. The Rule is accordingly discharged. It is directed that records of the case be sent down at once for expeditious disposal of the trial.

I have listened carefully to the judgment delivered by my learned brother Hakim just now. I would like to add a few observations of my own in regard to the two decisions of the Supreme Court of Pakistan referred to by my learned brother in his judgment and would also like to say something about section 215 of the Cr. P. C.

22. Non‑compliance with the provisions of section 211, Cr. P. C. came in for consideration before the Supreme Court on two occasions. On the first occasion the matter was considered in Moonda and others v. The State. It was observed by the Supreme Court that:‑

"The production and examination of witnesses under section 208, Cr. P. C. does not by any means Constitute com pliance with the duty imposed upon the Committing Magistrate by section 211 of the Code, which duty must be interpreted as a concomitant of a 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 persons under section 212, Cr. P. C.

This observation was repeated by the Supreme Court in the case of Ibrahim and others v. The State. The Supreme Court further made the following observations in the latter case.

"It may assist for the better understanding, in a general sense, of the observations made by this Court in the case of Moonda if we repeat what has often been said in regard to judgment of Superior Courts, namely, that every thing said in such a judgment is to be evaluated in relation to the particular facts and circumstances of the case thereby decided. The case of Moonda was of a wholly exceptional, not to say unique, character."

Finally their Lordships observed as follows towards the end of their judgment.

"An additional reason was found in the fact that the Committing Magistrate had failed to comply with the provisions of section 211, Cr. P. C. but nothing was said in that case as to whether such failure was an irregularity of curable nature or an illegality. We do not find it necessary in this case to say anything further on that point, since we find that it does not arise for discussion here."

In none of the two cases the Supreme Court, however, set aside the order of commitment. Nevertheless it is clear that their Lordships are of the opinion that section 211, Cr. P. C. gives a vested right to the accused to obtain cancellation of the charge framed against him by the Committing Magistrate and that this provision should therefore be complied with. In these circumstances it would be presumptuous on our part to pronounce a definite opinion in regard to the effect of the non‑compliance with the provisions of section 211, Cr. P. C.

23. Section 215, Cr. P. C. provides that commitment once made under section 213, Cr. P. C. by a competent Magistrate can be quashed by the High Court only on a point of law. Although the learned Advocate appearing on behalf of the petitioner has argued that the evidence in the case does not justify commitment of the petitioner to the Court of Session we have found on a perusal of the evidence that the learned Magistrate had not committed any illegality by making such commitment. The learned Advocate has not pointed out to us any illegality in this respect.

24. On my part I was inclined to set aside the order of commitment with a view to remedy the defect of non‑compliance with the provisions of section 211, Cr. P. C. since the trial has not commenced and the matter has made no progress beyond the commitment. In view, however, of the conduct of the petitioner referred to in my learned brother's judgment, and having regard to the fact that the petitioner has been trying to delay the trial, and also having regard to the fact that no act of prejudice has been caused to the petitioner I think the order passed by my learned brother is the only appropriate order in the case and I, therefore, agree with the order.

Rule discharged.

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