Jumman and Others vs State of U.P. and Another

B.L. Yadav, J.—By present revision u/s 397/401 of the Code of Criminal Procedure, 1973 (for short the Code), the order dated 25th January 1986 passed by Chief Judicial Magistrate Mirzapur issuing process against the applicants in Crime No. 107 of 1985 u/s 302/34 IPC is sought to be quashed.

The short account of the events, relevant for the disposal of this revision may be indicated. One Smt. Naimun (complainant) Opposite party No. 2 lodged a FIR on 7tb May, 1985 at 4 p.m. at P.S. Adalhat Distt. Mirzapur stating that on the same day at about 2 p.m. Km. Parmin daughter of complainant, went to the bank of river Ganga but failed to come back. Her sister Km. Hamida who went to trace her out, stated on return that her sister (Km. Parmin) was being drowned by Unman and Islam, (the applicants 1 and 2). Sartor and Dilbahar went on the spot and saw the accused running away after drowning Km. Parmin who was taken out of water and was found dead. Final report, was submitted. The complainant, opposite party filed a protest petition in the Court of Chief Judicial Magistrate Mirzapur and to prove the occurrence, and some affidavits were filed by the informant. The Chief Judicial Magistrate took cognizance, purporting to be u/s 190, and issued process. This is impugned order.

Heard learned Counsel for the parties. Counsel for the applicant urged that after final report was submitted if any protest petition or complaint was filed in a case exclusively triable by the Court of Sessions before taking cognizance and issuing process, the Magistrate must follow the procedure provided in Second Proviso to Section 202 by directing the complainant to produce all the prosecution witnesses. On the basis of affidavits cognizance cannot be taken. Reliance was placed on Ahibaran Singh v. State of U.P. 1982 A CR 526. Dinesh Chandra Sinha v. Rahmat Ulla 1981 A CR 132, Biren v. State of U.P. 1985 ACC 116, Ram Adhar v. State of U.P. 1980 A CR 153, Awadh Pati Singh v. Raj Bahacmr Singh 1978 A CR 422.

Counsel for the opposite parties on the other hand urged that the provisions of Section 190 of the Code are very comprehensive. The cognizance can be taken in either of three modes indicated therein. Procedure of Section 202 applies when after receipt of papers and complaint or protest petition the Magistrate postpones the issuing of process, otherwise the Magistrate has ample power to issue process straightway, in that event procedure u/s 202(2) or its proviso need not be followed. Further Second proviso to Section 202 does not require all the prosecution witnesses to be examined but only those witnesses upon whom the complainant relies and who are of his confidence. No ground for exercise of revisional power was made out. Affidavits were filed for the sake of precautions and the same were not necessary to be considered.

Points for determination are whether after receipt of Final Report and protest petition, in a case triable exclusively by the Court of Sessions, the Magistrate can take cognizance and issue process without following the procedure provided under Sections 200 and 202, and whether in such a case no cognizance can be taken and process issued without all the prosecution witnesses given in the list. The next point is whether affidavit can be filed by the complainant and looked into by the Magistrate?

As regards the first point, similar question about the jurisdiction of the Magistrate taking cognizance without following the procedure prescribed u/s 200 and 202 of the Code was involved in Criminal Misc. Petition No. 14065 of 1986 M/s. Shaw Vallice and Co. Ltd. v. Rajbir Singh, decided by me on 14th May, 1987 hence it is better to reiterate the reasons in brief here. In order to appreciate the controversy it is better to read Sections 190, 200, 202, 203 and 204 of the Code together,

Section 190 occurs under Chapter 14 of the Code which deals with the conditions requisite for initiation of proceedings. Section 190 opens with the words, "Subject to the provisions of this Chapter ". This obviously means that this Section is not subject to any other provision, rather it is an independent procedure. Sections 200 to 203 are under Chapter XV of the Code, which deals with the complaints to Magistrate. Section 204 is under Chapter XVI of the Code which deals with commencement of proceedings before Magistrate. Section 190 is couched in such a comprehensive language indicating the intention of the Legislature, that, that Section (Section 190) is not subject to the provisions of Sections 200 and 202 of the Code. u/s 190 it is open to the Magistrate to apply its mind to the facts disclosed and to determine judicially whether process should or should not be issued and to take cognizance if he is satisfied that the protest petition, filed by the complainant contains sufficient material to assume that prima facie offence is disclosed Section 20 provides about the examination of complainant but that is a procedure under Chapter XV whereas as stated earlier Section 190 is subject only to the provisions under Chapter XIV and no assistance is required from procedure u/s 200 and 202 in case the Magistrate feels satisfied that the offence has been prima facie disclosed either on the basis of the police papers or on the basis of protest petition. The procedure u/s 202 is to be followed when the Magistrate decides to postpone the issue of the process. In case, on the basis of the material available, even without examining the complainant or his witnesses present or directing the complainant to examine his witnesses, Magistrate feels, that prima facie case is made out, he has sufficient jurisdiction to take cognizance and as a visible manifestation of taking cognizance process can be issued straightway and in that event procedure under Sections 200 and 202 cases to remain very material. Once the cognizance is taken and process is issued it can be either in the form of issuing summons or warrants as the case may be.

There is a maxim ''Averbish Legis Non E-t Recedum'' which means that you must not vary the words of the Statute. Another maxim is ''Abundans Cutela Non Nocet'' which connotes that there is no harm done by great caution, there is often expressed what would otherwise be implied.

It is also not a condition precedent for issuing process that the Magistrate invariably must hold an enquiry as contemplated by Section 202 or direct the investigation to be made. The power to take cognizance without holding enquiry appears to be implicit u/s 202 in asmuch as Section 202 opens with the words, ''postponement of the issue of the process''. In other words in case the Magistrate does not want to postpone issue of the process in that event procedure u/s 202 becomes redundant and not to be followed. When the Magistrate postpones the issue of the process, only in that event he can follow the procedure u/s 202 of the Code.

In the instant case it is obvious that the cognizance was taken u/s 190 and as a visible manifestation of taking congnizance the process was issued. First point is accordingly decided.

As regards the second point about the proviso to Section 202(2) to the effect that in a case triable exclusively by Sessions Court, Magistrate shall call upon to the complainant to produce all his witnesses. It is important to mention that the intention of the Legislature is not such as the learned Counsel for the applicant suggested in as much as the words used by the Legislature are certainly not that the complainant shall examine ''all the prosecution witnesses'' nor the words are that the Magistrate shall call upon the complainant to examine ''all witnesses'' rather the words are that the Magistrate shall call upon the complainant to examine ''all his witnesses''. It cannot therefore be said that the Magistrate shall call upon the complainant to examine all witnesses rather only those witnesses are required to be examined which can be said to be ''his'' witnesses or in other words of the choice of the complainant or on whom the complainant places reliance. There may be a number of witnesses in a case but there is category of the witnesses keeping in view the credibility of the witnesses and the confidence of the complainant on them. u/s 200(2) the word ''witnesses'' is qualified by the word ''his''. The word ''his'' according to grammer is adjective and pronoun. The word ''his'' obviously connotes pertaining to him, interested in him or being of his choice or in other words in whom the complainant deposes his confidence. It is, therefore, obvious that if a number of witnesses have been given in the list, all of them need not be examined. In such matters intention of the Legislature has to be ascertained.

In R. v. City of London Court Judge (1892) 1 QB 273 and Vacher and Sons Ltd. v. London Society of Compositors (1913) AC 107, it was held in substance to the following effect:

If the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it does lead, in our view of the case to an absurdity or manifest injustice.

In Prithvi Pal Singh Vedi v. Union of India 1982 SC 1413 it was held that literal meaning of the statute must be adhered to when there is no absurdity in ascertaining the legislative intendment and for that purpose the broad feature of the Act can be looked into.

Further elementary rule of interpretation is that the Statute must be read as the whole. In the instant case reading the entire Section 202 as a whole and particularly the Second Proviso to Section 200 makes it manifest that the intention of the legislature was not that the complainant may be compelled to examine all the prosecution witnesses rather only those witnesses were to be examined who can be said to be ''his'' witnesses. The emphasis by the Legislature appears to be on the word ''his'' which cannot be ignored in making a proper interpretation. In order to ascertain as to whether the witnesses of the complainant on whom he places his reliance are his witnesses or not, a question may be put to the complainant as to who are the witnesses whom he wants to examine or when certain number of witnesses have been examined a question can be put to the complainant as to whether they are the only witnesses or some more witnesses are required. To ascertain number of witnesses or to put a question to the complainant, no special form has been prescribed under the Code nor any strict procedure has to be followed rather it has to be ascertained judicially. I am accordingly of the view that Section 202(2) (Proviso) does not connote that all the prosecution witnesses must be examined rather only those witnesses may be examined who are of the choice of the complainant or in whom the complainant reposes his confidence.

The only limitation on the number of witnesses would be that no more witness would be permitted to be examined at the trial by the complainant in a case triable exclusively by the Sessions, when the case is committed to the Court of Session, u/s 407 or Section 208 of the Code a copy of the statement of witnesses to be examined by the complainant or other material on the record has to be given to the accused before the case is committed to the Court of Sessions. It is another matter that if the ends of justice require that some more witnesses are to be examined in that event after following the procedure u/s 311 of the Code, the Court can examine any other witness, but not as witness of the complainant or prosecution, rather as a court witness.

As regards the next point as to whether the affidavit could be filed by the complainant or her witnesses and whether the same could be relied upon in view of the Second Proviso to Section 202 of Code. Affidavit can be certainly filed to prove the formal facts in a case as provided by Section 296 but here it appears that the complainant filed the affidavit of herself and her witnesses but they were not legally required and the Magistrate was justified in issuing process straightway when he felt satisfied. He did not think it judicially proper to postpone the issue of process.

Reverting to the cases relied upon by the learned Counsel for the applicant, Awadhpati Singh v. Raj Bahadur Singh (Supra) was a case considering whether the affidavit can be filed in proceedings u/s 145 of the Code, it was held that earlier under the Old Code u/s 145(4) affidavit could be filed by the parties but now word ''affidavit'' was absent from Section 145(4) of the new Code. But in view of Section 296 formal facts can be stated on affidavits. In this case the affidavit was not legally required to be filed hence I am of the view that this case is of no assistance.

With profound regards, it is stated that Biren v. State of U.P. (Supra) was a case where it was held without considering the intention of the Legislature under Sections 190 and 202 of the Code, that after protest petition was filed it has to be treated as complaint and entire procedure of the complaint case has to be observed but as the intention of the Legislature has been clarified in the earlier paragraphs by making reference to Sections 190 and 202 of the Code together, I am constrained to say that, that was a case which is of no assistance in deciding the points in the present case.

Ram Adhar v. State of U.P. (Supra) is a case in which it was held that witnesses not examined under the Second Proviso to Section 202, cannot be examined during the trial before the Sessions Court as provided u/s 208 of the Code. No doubt whatever material is available at the time of issuing process has to be furnished to the accused u/s 208 of the Code after the accused puts in appearance and that has to be done in order to facilitate that the accused can cross examine any prosecution witness as regards that material. This case does not help the applicant.

Ahibaran Singh v. State of U.P. (supra) was a case where it was held that the protest petition was to be treated as a complaint and entire procedure of a complaint has to be followed but in that case it was held that under the Second Proviso to Section 202 of the Code, to whom person making protest petition desires to be produced shall be examined. Further it was indicated that the complainant has to be called upon to furnish a list of the prosecution witnesses. I have no disagreement with the view taken in that case and that case appears to be relevant to some extent for the present case. In the instant case the cognizance was taken u/s 190, hence the procedure u/s 202(2) was irrelevant. The facts of the present case are different.

Dinesh Chandra Sinha v. Rahmatulla 1981 A CR 132 (DB) is the case in which this Court held that the Magistrate in view of Section 202(2) of the Code was bound to examine all the witnesses who are to be produced on behalf of the complainant. This appears to be the correct interpretation of Section 202(2) of the Code and this Division Bench view also does not require that the complainant may be directed to produce all the prosecution rather it requires that complainant may examine all the witnesses who are to be produced on behalf of the complainant. This obviously means that the witnesses who can support the prosecution and not that all the prosecution witnesses have to be examined. As such this case also cannot be said to be of any help to the applicants as in the instant case cognizance was taken u/s 190 and process was issued straightway.

In these cases I may point out that nature of the enquiry as contemplated u/s 202 of the Code was not considered. In fact Section 202 of the Code is not in nature of the trial as under the procedure prescribed only one trial is contemplated before the court of Sessions and as trial could commence only after process has been issued to the accused and the object of the enquiry u/s 202 of the Code is just ascertainment of the facts whether the complainant has any valid foundation calling for the person to be complained against. But that procedure u/s 202 of the Code has to be followed only in case the Magistrate "postpones the issue of the process", and in case be is satisfied that the "process has to be issued straitway," he need not to follow the procedure and without taking statement of any witness he can straightway issue process. However, when the procedure u/s 208 of the Code has to be followed, Magistrate shall without any delay furnish to the accused free of cost all documents and the material before him. Taking cognizance of an offence u/s 190 of the Code is purely a judicial function but subject to judicial review by this Court or by the Court of Sessions in Revision. See State of Uttar Pradesh Vs. Lakshmi Brahman and Another, ; Dr. S.S. Khanna Vs. Chief Secretary, Patna and Another, , A.R. Antulay v. Ram Das Sriniwas 1984 SC 718.

Before parting with the case I would like to make it clear that the learned Magistrate can ascertain from the complainant the number of witnesses who are going to be examined in support of the prosecution case at the trial and that list may be obtained before committing the case to the Court of Sessions and the documents or the material available or produced before the Magistrate would be furnished to the present applicants before the case is committed to the court of Sessions.

In view of the discussions made hereinbefore present revision fails and is dismissed. Interim stay granted by this Court on 11-3-86 and 20-5-86 are vacated. As the case has dragged on for too long what is required is expedition. Office is directed to send back the record of the case immediately.