In re: Abdul Rasheed and Others

M.N. Moorthy, J.—The learned Asst. Sessions Judge of East Thanjavur Division at Nagapattinam has made this reference under S. 395(2)

Cr. P.C. under the following circumstances. P.R.C. No. 2 of 1980 on the file of the Sub Divisional Judicial Magistrate, Nagapattinam was

instituted on a complaint. The case was taken cognizance of under Ss. 147, 148, 426 and 506, Part II, I P.C. The learned Sub Divisional Judicial

Magistrate, Nagapattinam, treating the case as a counter case to P.R.C. No. l of 1980 on his file converted this case also as a P.R.C., and

committed the same for trial before the Court of Sessions, East Thanjavur. No witnesses have been examined by the Magistrate. Consequently,

the Sessions Court has got only the complaint and the sworn statement on which alone it has to come to a conclusion whether there is ground or no

ground for framing the charge. The case being one for offences not tribal exclusively by the Sessions Court, there was no opportunity for the

Magistrate to consider the question of examining the witnesses under S. 202(2), Crl. P.C. The case has been treated straightway as P.R.C. before

recording evidence. The accused has lost opportunity of knowing the nature of the evidence against him. He has to suffer a disadvantage as a

result. As the matter involves the question of law of procedure, the learned Assistant Sessions Judge has referred it to this Court under S. 395(2),

Crl. P.C. for suitable directions as regards the procedure to be followed in such cases by the Court and if necessary for quashing the committal

proceedings in this case.

The accused and the complainant are represented by counsel. Notice of the reference was given to the learned Public Prosecutor who placed

the case-law on the matter.

This case being a counter-case and not being one of trial exclusively by Sessions Court, there was no opportunity for the Magistrate to consider

the question of examining the witnesses under S. 202(2), Crl. P.C. As this has been treated straightway as a P.R.C. before recording evidence,

undoubtedly the accused is at a disadvantage since he is not in a position to know the case against him. There is no provision in the Crl. P.C. as to

the procedure to be adopted with regard to recording of evidence, etc., by the committing Magistrates in such cases. No decision has been cited

before me prescribing the procedure to be adopted by the Magistrate in such cases and the appropriate stage at which such cases are to be

committed.

It has been held that in procedural matters such as the directions contained in S. 202(2), Crl. P.C. it is the spirit of law rather than the letter of it

that should be the guiding factor. Though S. 202(2), Crl. P.C, directs Magistrates taking a complaint on file to call upon the complainant to

produce all his witnesses and examine them on oath, if it appears to him that the offence complained of is tribal exclusively by the Court of Session,

the directions has got to be understood and applied realistically and not mechanically. Where there are two cases-a case and a counter-case

arising out of the same transaction, if the two cases are tried by two different courts, there is a risk of two courts giving conflicting findings, and to

obviate such a risk it is desirable that both the cases should be tried separately, but by the same court-(Vide Bannappa v. State, AIR 1944 Bom.

146; Judhister v. State AIR 1923 Cal. 644 and Periaswamy v. State 1937 Mad. W.N. 998. Such being the law it cannot be helped if any person

is exposed to the anxiety and expenses of a trial in the sessions court, merely because he is the complainant or one of the prosecution party in a

counter-case in which the accused is committed to sessions for trial. A Magistrate before whom a case is charged by the police and a private

complaint from a party whose case was referred should hear and commit both the cases to the sessions even if only one of them is exclusively tribal

by a court of sessions. The proceedings under S. 202, Crl. P.C. are not inter parties and they precede the issuance of process against the accused.

The section makes it clear that it has to be instituted only when the Magistrate considers it necessary to postpone the issue of process against the

accused and the purpose of proceedings is to decide whether or not there is sufficient ground for proceeding against the accused. In the instant

case, after the sworn statement of the complainant under S. 200, Crl. P.C. the learned Magistrate did not consider it necessary to postpone the

issue of process, but he converted the case into one of P.R.C. and committed the accused to the court of sessions. Thus, it has passed the stage of

S. 202, Crl. P.C. and the Magistrate need not follow the provision of S. 202(2) , Crl. P.C. if once he is satisfied that there is sufficient ground for

proceeding. Even though there is no direct decision on the point, the learned Public Prosecutor brought to my notice the decision in Kewal Krishan

Vs. Suraj Bhan and Another, wherein their Lordships of the Supreme Court observed as follows:

At the stage of Ss. 203 and 204 (sic), Crl. P.C. in a case exclusively tribal by the Court of Sessions, all that the Magistrate has to do is to see

whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Ss. 200 and 202, Crl. P.C. there is

prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is ''sufficient ground for

proceeding'' against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard

to be adopted by the Magistrate In scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges.

This Court has held in Ramesh Singh''s case that even at the stage of framing charges the truth, veracity and effect of the evidence which the

complainant reduces or purposes to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment which is to be

applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of

Ss. 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively tribal by the court of

sessions, that will be a sufficient ground for issuing process to the accused and committing them for trial to the court of sessions. The proposition

that in cases instituted on complaint in regard to an offence exclusively tribal by the court of session, the standard for ascertaining whether or not

the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted

at the stage of framing charges in a warrant case tribal by Magistrate is now evident from the scheme of the new Code of 1973. S. 209 of the

Code of 1973 dispenses with the inquiry preliminary to commitment in a case tribal exclusively by a Court of Sessions irrespective of whether such

a case is instituted on a criminal complaint or a police report.

On the basis of the said decision of the Supreme Court, I agree with the learned Public Prosecutor that the Magistrate is competent to commit the

accused on materials found in the complaint and the sworn statement. As both the case and counter-case have to be tried by the same court, in a

way both cases are to be treated as if they had been instituted on a police report though the private complaint case is not on par with the one of the

police report. Only the special provision contained in the proviso to S. 202(2), Crl. P.C. need not be complied with. These observations do not

mean that the Magistrate is not prevented from dismissing the complaint if there is no sufficient ground to proceed with. As and when he is satisfied

there are materials at any stage he could commit the counter case to the Sessions. For the aforesaid reasons, it follows that the committal order has

to be sustained in the instant case and there is no warrant for quashing it. The reference stands answered accordingly.