Gokulananda Mohanty and Others vs Muralidhar Mallik

R.N. Misra, J.—This application u/s 482 of the Code of Criminal Procedure of 1973 seeks to quash the proceeding in a complaint case from the stage of issue of process on 1-10-1977 and asks for a direction to the trial Court to proceed with the matter from the stage of holding an enquiry as contemplated by the proviso to Section 202(2) of the Code.

The short facts are these: The opposite party filed a petition of complaint in the Court of the learned Sub-Divisional Judicial Magistrate of Cuttack on 1-10-1977 alleging commission of offences punishable under Sections 147, 323, 379 and 504 of the Indian Penal Code. The learned Magistrate took cognisance of the offences, examined the complainant as provided u/s 200 of the Code and recorded the following order:

... Heard learned advocates. They submit that it is properly a case u/s 395, Indian Penal Code as the congregation was for purposes of snatching away the money and wrist-watch. Considered.

Cognisance under Sections 395, 323 and 504, Indian Penal Code taken against accused persons.

Case to Sri B.B. Mohanty, M. F. C. for committal enquiry and disposal as per Hon''ble High Court''s letter No. 903 dated 31-5-1975. Complainant to appear there.

On the same day, the transferee Magistrate made the following order:

Case is received on transfer and taken to my file. Complainant is present. Issue N. B. W. against the accused persons fixing 4-1l-1977 for appearance.

On 2-11-1977, the accused persons except accused Kalandi surrendered in Court and applied for bail. On 4-11-1977, an application on their behalf was made for their discharge contending that before process was issued against them, the proviso to Section 202(2) of the Code of Criminal Procedure should have been complied with and as long as there was no such compliance, process could not have been ordered to issue. They, therefore, required the learned Magistrate to recall the order of Issue of non-bailable warrant against them and to examine the complainant''s witnesses as required by the proviso. The learned Magistrate by a reasoned order and relying on some observations of this Court in the case of The State v. Kastu Behera 41 (1975) C.L.T. 487 came to reject the application. This revision petition has been carried against that order.

When the application was listed for admission and hearing before a learned Single Judge, on behalf of the Petitioners it was contended that the observations of this Court in the decision relied upon by the learned Magistrate require reconsideration and the matter was, therefore, directed to be heard by a Division Bench where the correctness of the decision of the Single Judge could be considered. That is how the revision application has been placed before us for hearing. .

Mr. Patnaik for the Petitioners contends that the learned Sub-Divisional Judicial Magistrate having been empowered by the Chief Judicial Magistrate as provided in Section 192(2) of the Code on was certainly entitled to take cognisance of the offences and though in the petition of complaint it has been alleged that offences triable by a competent Magistrate had been committed, on application of his judicial mind, the learned Sub-Divisional Judicial Magistrate was of opinion that an offence triable exclusively by the Court of Sessions had been committed. Therefore, he was required to comply with the requirements of Section 202(2), proviso and until the said mandatory provision had been satisfied, no process u/s 204 of the Code could issue. It is further contended that the learned Sub-Divisional Judicial Magistrate clearly went wrong in directing a committal enquiry, inasmuch as such enquiries had been abolished under the new Code. There is no dispute that committal enquiry has been done away with and the direction given on 1-10-1977 while transferring the case to another Magistrate to hold committal enquiry was incompetent.

The main question for consideration in the revision application is as to whether it was obligatory on the part of the learned Magistrate to call upon the complainant to produce all his witnesses and examine them on oath when it appeared to him that the offence complained of was triable exclusively by the Court of Sessions before he could direct issue of process u/s 204, Code of Criminal Procedure. We think it convenient to extract the relevant provisions of the Code at this stage:

Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specifically empowered in this behalf under Sub-section (2), may take cognizance of any offence.

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own know ledge, that such offence has been committed.

Making over of cases to Magistrates.

(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

(2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.

Examination of complainant. -

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) ... ... ... ..

(b) if the Magistrate makes over the case for Inquiry or trial to another Magistrate u/s 192:

Provided ....

Postponement of issue of process. -

(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the Issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by 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 Sessions; or

(b) ...

(2) In an inquiry under Sub-section (1), the 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 Sessions, he shall call upon the Complainant to produce all his witnesses and examine them on oath.

(3) ...

Dismissal of complaint. -

If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry of investigation (If any) u/s 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Issue of process. -

(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) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

Supply of copies of statements and documents to accused in other cases triable by Court of Session.

Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process u/s 204 that the offence is triable exclusively by the Court of Session: the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) the statements recorded u/s 200 or Section 202, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded u/s 161 of Section 161 ;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:

Provided....

The entire scheme beginning with taking of cognizance and ending up with issue of process, both in cases triable by Magistrates as also triable by the Court of Session is contained in the provisions extracted above. Section 200 obliges the Magistrate to examine the complainant and such witnesses as may be present once he decides to take cognizance of the offence except in the cases indicated in the proviso to that section. It is open to the Magistrate without holding an inquiry either to dismiss the complainant or direct issue of process. Otherwise stated, after cognizance of the offence is taken and the complainant and such witnesses as may be present are examined, the learned Magistrate may dismiss the complaint when not satisfied that there is sufficient ground for proceeding, or proceed to take action u/s 204 and issue summons or warrant depending upon the nature of the offence disclosed. There may be cases where after complying with the requirements of Section 200, the learned Magistrate thinks it fit to postpone the issue of process and require an enquiry to be held. That enquiry may be conducted by himself or investigation may be caused by a police officer or by any other person as may be decided by the Magistrate and the purpose of enquiry is for deciding whether or not there is sufficient ground for proceeding. The first part of the proviso to Section 202(1) required that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he would not order investigation but would have the enquiry made by himself. The proviso to Sub-section (2) is relatable to cases exclusively triable by the Court of Session and that proviso requires that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he has to call upon the complainant to produce all his witnesses and examine them on oath. Clause (a) of the proviso to Sub-section (1) and the proviso in Sub-section (2) may be read together as they intend to cover a common class of cases, namely offences exclusively triable by the Court of Session. To repeat for clarity, it would mean that in cases which appear to be triable exclusively by the Court of Session, the Magistrate has to make an enquiry himself and in such enquiry, the complainant has to produce all his witnesses who are to be examined on oath. On the basis of the result of enquiry, in cases where enquiry has been considered necessary, the learned Magistrate has to decide whether there is sufficient ground to proceed and on reaching his judicial conclusion, proceed to take action u/s 204 of the Code. Section 204 is the common provision for issue of process covering cases where there is enquiry, or investigation, or where there is none. In Section 208 of the Code dealing with trial by Court of Session in cases of private complaints, provision has been made requiring the Magistrate while issuing process u/s 204 tu ensure that the accused is furnished with the documents indicated in the three clauses appearing therein.

Clause (a) to the proviso in Sub-section (1) and the proviso in Sub-section (2) of Section 20 of the Code are for the first time incorporated in the new Code of 1973. The Law Commission in its 41st Report dealt with the new Code of Criminal Procedure, 1973. Its recommendation to abolish committal enquiries was accepted by Parliament. In its Report in paragraph-16.1l in Chapter XVI relating to complaints of offences triable exclusively by the ''Court of Session, the Law Commission stated:

We are recommending in a subsequent chapter the abolition of commitment inquiries. This necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Session. We recommend that the Magistrate who takes cognizance of such offence on complaint must himself cognizance of such offence on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. Further, in such cases the Magistrate should not direct an investigation by a police officer, or other person. For this purpose, we propose two amendments of Section 202 in the form of another proviso to Sub-section (1) and a proviso to Sub-section (2).

and in paragraph 16.12, the proposed Section 202 which finds place in the Code now was indicated. Again, in paragraph 18.29 (Chapter XVIII) dealing with ''Procedure in complaint cases'', the Commission recommended:

As regards the small number of sessions cases that may be instituted on complaint, it would obviously be convenient if they were also brought before a Magistrate in the first instance but we do not consider it necessary to retain the elaborate provisions contained in Sections 208 to 220 which lay down the procedure for committing such cases to the Court of Session. The object of this procedure is to get all prosecution witnesses examined by the Magistrate in the presence of the accused in order that the accused may have a full idea of the case which is brought against him. We propose that in such cases it will be sufficient if the Magistrate taking cognizance of the offence on complaint holds an inquiry under- Section 202 and examines the complainant and all his witnesses on oath, but not in the presence of the accused. If on the basis of such sworn statements he finds that there is ''sufficient ground for proceeding'' he should issue process to the accused as provided in Section 204. He should then grant to the accused copies of the statements of all persons examined by'' the Magistrate and other material on which the prosecution relies in order that the accused may get adequate information about the charge against him and prepare for his defence.

The combined effect of these two provisions will be to place a person accused of a grave offence by a private complainant in a some-what better position than one charged with a similar offence on the basis of a police investigation. In the former case, a preliminary inquiry by a Magistrate into the truth of the complaint is made mandatory and takes the place of an investigation by the police. The accused gets copies of the statements of an prosecution witnesses recorded by the Magistrate in the former case and the statements recorded by the police u/s 161(3) in the latter case, With these safeguards; which appear to us to be sufficient, we consider that committal proceedings could be dispensed with for complaint cases also.

The recommendations of the Law Commission were duly considered by the Parliamentary Joint Select Committee and in due course by the Parliament itself. With reference to Clause 214 of the Bill, the following note appeared in the Statement of Objects and Reasons:

Preliminary inquiries by Magistrate in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for by the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session. However, to perform certain preliminary functions like granting copies, preparing the records notifying the Public Prosecutor, etc., provision'' is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session, the inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of a preliminary scrutiny.

Ultimately, Section 202, as redrafted by the Law Commission, was incorporated in the new Code.

There is no dispute that where the provision of la w is clear and there is no ambiguity in the matter of interpretation, the plain meaning of the provision has to be adopted. On a bare analysis of the sections which we have extracted above, there is room for the contention that holding of an enquiry u/s 202 being discretionary with the Magistrate, unless in his discretion the Magistrate decides to hold an enquiry, the proviso in Sub-section (2) of Section 202 does not arise for compliance. It is contended that if the legislative intention was what the Law Commission 10 ''its Report had indicated, a clear provision making it obligatory for the Magistrate to hold enquiry satisfying the requirements of Clause (a) of the proviso in Sub-section (1) as also the proviso in Sub-section (2) of Section 202, could have been made and there was no justification to put these requirements as provisos to Section 202 dealing with an enquiry depending upon the judicial choice of the Magistrate.

It is again contended by counsel for the opposite party that where the language of the statute is dear, there is no scope to refer to other materials like the Reports of the Law Commission ; the Statement of Objects at Reasons-and/or Parliamentary proceedings. To meet this submission of Mr. Rath for the opposite party, Mr. Patnaik has relied upon the decision of the Supreme Court in the case of State of Mysore Vs. R.V. Bidap, , where the Constitution Bench observed:

Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions....

and referred to series of authorities. The following passage from Crawford on Statutory Construction was extracted with approval by the Court:

The judicial opinion on this point is certainly not quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading up to ,an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt; but they hold definitely that the legislative history is inadmissible when there is no obscurity in the meaning of the statute....

The Court further stated:

Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had, to these sources with great caution and only when incongruities and ambiguities are to be resolved. (A.I.R. 1960 S.C. 27). There is a strong case for whittling down the Rule of Exclusion followed in the British Courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matters....

Mr. Patnaik has also relied upon a recent decision of the Supreme Court in the case of Udayan Chinubhai v. R.C. Bali AIR 1977 S.C. 2319, where reliance was placed on the Report of the Law Commission in interpreting a provision of the new Limitation Act of 1963. On this occasion, In paragraph 25 of the Judgment, the Court referred sumptuously to the Report of the Law Commission and ultimately observed:

In interpreting the provisions of a statute the Courts have to give effect to the actual words used whether couched in the positive or in the negative. It is not permissible to alter the cohesive underlying thought process of the legislature by reading in positive Sense what has been set out in negative terms. The Courts will try to discover the real intent by keeping the diction of the statute intact. This is another cardinal rule of construction.

Mr. Patnaik has again contended that the procedure relating to sessions trials in the unamended statute provided a guarantee for the defence, inasmuch as in cases upon police report, there was investigation u/s 161 of the Code of Criminal Procedure followed by a magisterial enquiry for commitment. In similar cases instituted on private complaints a committal enquiry was a condition precedent. After commitment has been abolished, the investigation by the police so far as cases instituted on police report are concerned provides the safeguard. The Law Commission in clear terms recommended and Parliament accepted that a judicial enquiry where all the witnesses for the complainant would be examined would provide the substitute in regard to complaint cases. If we interpret it otherwise, the benefit intended to be conferred on the accused to support his defence would be lost.

Mr. Patnaik next contends that the proviso to Sub-section (2) of Section 202 is not only intended to make an exception to the main provision in Sub-section (2) but covers a wider field. Sub-section (2) makes it discretionary for a Magistrate making an enquiry under Sub-section (1) of Section 200 to take evidence of witnesses on oath. The proviso does not only take away the discretion vested in Sub-section (2) by making it obligatory for the Magistrate to take all the evidence that the complainant has to produce, but also make an enquiry in respect of that class of cases compulsory. As has been held in the case of Piper v. Harvey (1958) I.Q.B. 439, if the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect. Undoubtedly, the general rule is that a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule, as indicated by the Supreme Court in the case of Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subbash Chandra Yograj Sinha, . It has again been indicated in the case of The Commissioner of Income Tax, Mysore, Travancore-cochin and Coorg, Bangalore Vs. The Indo Mercantile Bank Limited, , that ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. But the setting in which the proviso to Sub-section (2) of Section 202 occurs, we are inclined to agree with the submission of Mr. Patnaik for the Petitioners that the legislative intent was to make a clear provision that in respect of cases exclusively triable by the Court of Session it was obligatory upon the Magistrate to proceed to enquire before issue of process. While in other cases enquiry would be discretionary, once the Magistrate was of the opinion that an offence exclusively triable by the Court of Session alleged to have been committed, the proviso obliged him to proceed to enquire and at such enquiry to call upon the complainant to produce his entire evidence.

A number of cases have been cited before us by both sides in support of their respective stands. Mr. Patnaik for the Petitioners has relied upon a Bench decision of the Calcutta High Court in the case of Kamal Krishna De Vs. State and Another, , where it has been observed:

Mr. Banerjee has submitted that the Magistrate has not done everything which is made by the status a condition precedent to the issue of process. This raises the question whether the learned Magistrate has complied with the provisions of Section 202, Code of Criminal Procedure. The proviso to Sub-section (2) of Section 202, Code of Criminal Procedure enjoins that a Magistrate who has taken cognizance of an offence triable exclusively by a Court of Session will himself make an inquiry into and in doing so call upon the complainant to produce all his witnesses and examine them on oath. In other words, he is to perform certain statutory functions before issuing processes in connection with offences triable by the Court of Session. Though the procedure under the old Code which enjoined commitment inquiry has been abolished, a special procedure has been provided in Section 202, Code of Criminal Procedure which serves the purpose of preliminary inquiry as was contemplated by the old Act. The examination of the witnesses as contemplated by the proviso to Section 202 (2) must be done before process is issued....

The Calcutta High Court did not agree with the view taken by a learned Single Judge of the Andhra Pradesh High Court 10 the case of Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another, , where it had been observed:

... Where a Magistrate proceeds to make such an enquiry he is required by the proviso to Section 202(2) if the offence complained of is triable exclusively by the Court of Session, to can upon the complainant to produce an his witnesses and examine them on oath. The proviso appears to be intended to provide against a Magistrate refusing to take cognizance and issue process without calling upon the complainant to produce all his witnesses and examining them on oath. In cases where the offences complained of are triable exclusively by the Court of Session, it is not intended to give a lever to the accused to complain that the Magistrate should not have taken cognizance of the case without Examining all the complainant''s witnesses. A complainant may complain against the refusal of a Magistrate to take cognizance of the case without examining all his witnesses. But, an accused cannot complain against a Magistrate taking cognizance of a case without examining all the witnesses. Sri Ayyappu Reddy urged that the proviso to Section 202(2) was intended to provide the accused with an opportunity to know the case against him and the witnesses who were going to depose against him. I do not think, that is the object of the proviso. The accused does not enter the picture at all at that stage. The enquiry by the Magistrate u/s 202 is only for the purpose of enabling him to decide whether or not there is sufficient ground for proceeding. In deciding that question the Magistrate is required to call upon the complainant to produce all his witnesses and examine them on oath in the case of offence exclusively triable by a Court of Session. The provision is clearly not meant to furnish any fodder to the accused.

A learning Single Judge of the Madras High Court in the case of P.R. Murugaiyan Vs. Jayaveera Pandia Nadar, , observed:

... However, I am of the view that it is always desirable in cases instituted on complaints that while the Magistrate takes cognizance of offences triable exclusively by the Court of Session, he should follow the procedure laid down u/s 202 of the Code, which serves the purpose of a preliminary enquiry, as that alone would be a sufficient safeguard to the accused before the Court resorts to Section 204, and as the Court, being the legal custodian and guardian of the rights of the citizens has a primary obligation to protect them from vindictive and vexatious prosecutions.

The true meaning of the proviso came to be dealt with by a learned Single Judge of the Allahabad High Court in the case of Babu Ram and Anr. v. State of Uttar Pradesh 1978 Cri. L. J. 1430. Verma, J, observed:

... It a case triable exclusively by the Court of Session is instituted on a complaint, the law as contained in Section 202, Code of Criminal Procedure enjoins that the accused should be summoned only when the Magistrate has caned upon the complainant to produce all his witnesses and Examined them on oath. The case before us was undoubtedly a case triable exclusively by the Court of Sessions. It was, therefore, not at all proper on the part of the Magistrate to have examined some witnesses of the complainant only and then summoned the accused. I find that the Magistrate had examined some witnesses as Court witnesses also. This was not in accordance with law at the stage on which they were examined. The complainant should have been called upon the produce all his witnesses and then the Court should have found out whether a prima facie case against the accused was made out or not....

We may also refer to a Single Judge decision of the Madras High Court in the case of Paranjothi Udyar and Others Vs. State and Others, , where it has been observed:

A reading of the proviso to Clause (2) of Section 202 together with Section 208(i) would clearly show that on a complaint before the Magistrate where it appears that the offence committed is triable exclusively by a Court of Session, the statements of all the witnesses produced by the complainant must be recorded and the copies of such statements of all the witnesses so recorded shall be furnished to the accused free of cost.... Thus, it is seen that the recording of the statements of witnesses on oath as provided under the Proviso to Clause (2) of Section 202 and the furnishing of copies of such statements as provided u/s 208(i) are mandatory. In cases instituted on a police report, the accused will have the benefit of obtaining the copies of the statements of witnesses recorded by the police. In cases instituted other than on a police report, the Legislature in its wisdom has thought of providing the same facility and benefit to the accused and, therefore, the examination of the witnesses by the Magistrate in a case exclusively triable by a Court of Session, was made obligatory, so that the accused may have the copies of such statements and other documents, if any, mentioned in Clauses (ii) and (iii) of Section 208 furnished to him and have the benefit of preparing his defence as an accused in a police case will have.

On the other hand, there are also some cases taking a contrary view. We have already referred to the Single Judge decision of the Andhra Pradesh High Court referred to in the Bench decision of the Calcutta High Court; There is another decision of the same Court in the case of Boya Lakshmanna Vs. Boyachinna Narasappa and Another, , where it has been observed:

... The words in Sub-section (1) of Section 202. Code of Criminal Procedure make it abundantly clear that the proceedings under the section are to be instituted only when the Magistrate considers it necessary to postpone the issue of process against the accused and the purpose of the proceedings is just to decide whether or not there is sufficient ground for proceeding against " the accused. In the instant case after recording the sworn statement of the complainant u/s 200, Code of Criminal Procedure the Magistrate did not consider it necessary to postpone the issue of process. On the other hand he took the case on file, registered the same as P. R. C. 6/74 and passed an express order directing the issuance of a non-bailable warrant for the production of the Petitioner before him. The case passed the stage of Section 202, Code of Criminal Procedure and there can be no question of the Magistrate being required to follow the proviso to Sub-section (2) of Section 202, Code of Criminal Procedure ....

A learned Single Judge of the Kerala High Court in the case of Kochu Mohammed and Others Vs. State of Kerala and Another, , has also taken the same view. Reliance was placed by the learned Judge on an observation of the Supreme Court in the case of Nagawwav. Veerannau AIR 197 S.C. 1947, where It was stated:

In proceedings u/s 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether process should be issued against him or not.

We are inclined to take the view that the observations of the Supreme Court were not relevant to the question in issue. The Supreme Court was not dealing with the amended Code and the proviso in question was not under consideration.

We may now turn to the observations in the Single Judge decision of this Court (The State v. Kastu Behera. The facts of the case show that on 18-5-1974, a complaint was filed alleging commission of an offence punishable u/s 436, Indian Penal Code, which was triable exclusively by the court of Session. The learned Magistrate had examined the complainant alone and not his witnesses. In the Court of Session, a challenge was advanced against the order of commitment on the ground that the proviso to Section 202(2) of the Code had not been complied with by the committing Magistrate. After examining the scheme in Chapter XV of the Code, it was observed:

Under Chapter XV of the Code, complaints to Magistrate are dealt with. Section 200 deals with examination of the complainant. After the complainant and his witnesses, if any, are examined, four courses are open to the Magistrate:

(i) If he finds that he is not competent to take cognizance of the offence, which in his opinion has been made out he will take action u/s 201 of the. Code returning the written complaint for presentation in the proper Court or if it is an oral complaint direct the complainant to the proper Court;

(ii) He may postpone the issue of process and decide whether or not there is sufficient ground for proceeding as provided u/s 202 of the Code;

(iii) He may dismiss the complaint if after considering the statements on oath of the complainant and his witnesses as also the result of inquiry or investigation he is of the view that there is no sufficient ground for proceeding as provided u/s 203 of the Code; or

(iv) He may direct issue of process where he is of the opinion that cognizance should be taken of the offence as there is sufficient ground for proceeding as provided u/s 204 of the Code.

Under Section 202 of the Code, the Magistrate can post pone the issue of process and direct an inquiry or an investigation. When it is an inquiry, it is by himself and when it is an investigation, it is either by a police officer or such other person as he thinks fit The first part of the Proviso to Sub-section (1) forbids the Magistrate not to direct any investigation when the offence complained against appears to him to be triable exclusively by the Court of Session. Under Sub-section (2), in an inquiry, he is entitled to record evidence of witnesses on oath if he thinks fit. The proviso under Sub-section (2) requires the Magistrate to call upon the complainant to produce his witnesses and examine them on oath where it appears to him that the offence complained is triable exclusively by the Court of Session. The first part of the Proviso to Sub-section (1) of Section 202 makes it clear, therefore, that once it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he is not required to direct investigation. But, when it appears to him in an inquiry under Sub-section (1) that the case is exclusively triable by the Court of Session, he is required to examine the evidence of the complainant on oath. The proviso is pitted against the parent provision in Sub-section (2). The option of examining the witnesses on oath which the statute confers under the parent Sub-section (2) in the case of an inquiry is taken away when the offence appears to be exclusively triable by the Court of Session.

It was again observed:

.... The true purpose of the Proviso to Section 202(2) of the Code, therefore, seems to be that where the Magistrate directs an inquiry to be made under Sub-section. (1) thereof and in the inquiry it appears to him that the offence complained of is triable exclusively by the Court of Session, be will examine the witness for the complainant on oath. Undoubtedly, the language of the Proviso creates some amount of difficulty, but keeping the purpose of Section 202 of the Code in view and juxtaposing the provisions contained in this Proviso with Section 209 of the Code which deals with commitment, a different view cannot be taken.

We are inclined to take the view that the observations made therein without referring to the legislative intent and the true purpose of the proviso did not represent the correct law.

In our opinion, when the Magistrate after examining the complainant and his witnesses u/s 200 of the Code, of Criminal Procedure is of the view that an offence exclusively triable by the Court of Session appears to have been made out, he is bound to take action under the proviso to Section 202 of the Code and there is no discretion left in him not to hold such enquiry In the enquiry, which is bound to be undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath.

In the instant case, that has admittedly not been done. We would accordingly accept the revision application and vacate the orders made by the Sub-Divisional Judicial Magistrate on 1-10-1977 directing transfer of the case for committal enquiry and call upon the learned Sub-Divisional Judicial Magistrate to hold an enquiry satisfying the requirements of the proviso to Section 202(2) of the Code of Criminal Procedure or to transfer it to a competent Magistrate for the purpose of holding an enquiry for proceeding in accordance with law. The revision application is accordingly allowed.

B.K. Ray, J.

I agree.

Application allowed.