P. Giri and Others vs Alpo Momin

K. Lahiri, J.—The points that fall for consideration in this petition are: (i) Is a Magistrate bound to examine all the witnesses produced by the complainant while acting u/s 200 Code of Criminal Procedure 1973 before issuance of process against the accused u/s 204 of the Code of Criminal Procedure? (ii) whether the Magistrate is competent to issue process against the accused upon examination of the complainant alone and upon recording his opinion" that there is sufficient grounds for proceeding against the accused ?" These are the main questions posed by Mr. A.K. Bhattacharyya, learned Counsel for the Petitioners.

A RESUME OF THE RELEVANT FACTS: This case comes from the Garo Hills District of Meghalaya. Shri Alpo Momin lodged a complaint before Smti B.N. Sangma, Magistrate 1st Class, west Garo Hills, Tura (Meghalaya) alleging, inter alia, that on 5.12.80, in the evening the Petitioners being armed with guns and other weapons, putting on civil dress criminally trespassed into the compound and beat up, kicked and boxed the inmates including the complainant. One of them "fired one round from his gun." Even an unmarried girl aged 16 years was beaten up, her blouse torn and modesty out-raged. The allegations are that he accused were drunk, They were public servants but did not commit the acts which amounted to offence, as a part of their official duty or under the colour thereof. One of the injured was hospitlised. On receipt of the complaint, the learned Magistrate recorded the statement of the complainant on oath. The complainant reiterated the allegations contained in his complaint petition, It was not only the substance of examination but was full and complete examination. Upon examination of the complainant on oath the learned Magistrate was satisfied that there was a rime facie case against the accused Under Sections 148, 447,324, 506, 354 I.P.C., and issued bailable warrants against the accused and directed them to appear before her on 6.1.81. The Petitioners filed this revision on 5.3.81. The main contention of Shri Bhattacharyva. learned Counsel for the Petitioner is that the entire proceeding was vitiated as the learned Magistrate issued process on perusal of the complaint petition and upon cxaminition of the complainant alone. Counsel submits that the learned Magistrate was obliged to examine all witnesses for the. prosecutor persent in court and then only one could have issued the prouses The subsid(sic) question posed faintly was that the learned Magistrate ought to have made an enquiry u/s 202 of ''the Code'' as the accused were ''forest official and one of them had lodged a case against the complainant for commission of offences Under Sections 24, 25, 40 and 41 of the Assam Forest Regulation. (sic)91 in this background the learned Counsel advocated that the Magistrate ought to have proceeded u/s 202 of the Code''.

Now, let me proceed to examine the first confection of the learned Counsel. To accept the contention I shall have to al:er, change and upset the century old practice of the courts of the eatire region. In this part of the land, the practice is to examine, the complainant and if the Magistrate is satisfied that the is sufficient ground for proceeding he issues process against the accused. If not, the Magistrate proceeds to examine "other witnesses present, if any", on the date of examination of the complainant. If the Magistrate finds no sufficient grounds for proceeding he dismisses the complaint u/s 203. To upset a long standing practice some strong force in support thereof is necessary. It may emanate from legislation or from judicial pronouncements. There is no decision supporting the contention of the Petitioners except two over-ruled decisions.

I have perused the complaint petition and the initial deposition duly recorded u/s 200 of ''the Code''. The order of the learned Magistrate reads:

19/12/80.

Case received by transfer. Complt present who was examined on oath.

There is a prima facle case against the accused persons Under Sections 148/447/324/506/351 I.P.C. Issue W/A with bail of Rs. 500/- i/d to hajot against the accused persons. The injured persons may be medically examied. In form, C/S East. Garo Hills to cause medical examination. of the injured persons and submit report immediately. Fix 6.1.81. for appearance of the accused.

[Emphasis added]

The materials on record buttress the conclusion reached by the learned Magistrate. The order rendered u/s 204 is impecable. But the Counsel for the Petitioner has submitted that the order is bad for non-compliance with the provisions of Section 200 of the Code, namely, omission of the Magistrate to examine "the witnesses presem, if any", There is no challenge that "a prima facie case" was not established oh the statement of the complainant. Nor is there any challenge about absence of material to form the requisite ''opinion'' contemplated u/s 204. The arguments boils down to this: notwithstanding enough materials to form the requisite opinion the Magistrate should have taken an over-doze of material by examining all the witnesses present. Counsel submits that if a complainant comes with dozens of witnesses the Magistrate is bound to examine all of them though fully satisfied as to the existace of "sufficient ground for proceeding" u/s 204 upon examination of the complainant alone, The Magistrate must examine all the witnesses like a robot, waste time, paper and ink and proceed on with the case day in and day out even though it is against the "public interest" and causes delay in dispensing justice in other matters. So what, argues the Counsel and pleads that the Court is obliged and the mandates of the cold words of law imprinted in black letters obligate the Magistrate to act in the way suggested. Let Justice suffer but the cold letters prevail, is the substance of the submission. It is abhorrent to the conecept and norms of Justice. Law is not the end in itself. Justice is the legitimate end Human welfare is the common goal of both. The goal of justice and law is to wipe out tears, sufferings and (sic)rrow and to, augment all forms of desirable consciousness, (sic) that men may lead a happy life. Procedural law is not (sic)tyrrant but a servant, not a hinder but an aid to justice.(sic)edural prosecriptions are hand-maid and not the mistress, (sic)lubricant and not a resistance in the Administration of Where the noncompliance, though procedural, will (sic)wart fair, just and reasonable hearing or stands as an obstacle to cater justce to parties, the provision must be held to be mandatory, However, If the breach does not cause any injury to a just disposal of a case we cannot emplace such a regulatory requirement as dominant deslderatum. Laws enacted have a stamp that they are meant for justice and not to wreck it. There is no doubt that if the Magistrate without examination of the witnesses produced by the complainant to back up his case, dismisses the complaint without examining the supporting witnesses, the process causing injury to the party must be hold to be violative of Section 200 as the said obligation imposed by and u/s 200 is mandatory. This is the quintessence of the decision of the Supreme Court in Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, The Contention that the ratio decidendi of Nirmaljlt Slngh (Supra) is that the Magistrate is bound to examine ail the witnesses produced by the complainant, although be is satisfied as to the existence of a prima facie case upon examination of the complainant and/or one or two witnesses, is nowhere to be found in the decision. While considering the object of Section 200 providing for examination of the complainant on oath, it was observed that it was meant to prevent the issue of process merely on basis of the complaint petition which could be false or vexatious or intended only to harass the accused and nothing more. We quote the observations of Nirmaljit Singh (Supra) relied on by the learned Counsel for the Petitioner:

The object of such examination (under Section 200) is to ascertain hether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vaxatious or intended only to harass such aperson.

[Emphasis added]

If a Magistrate issues process only on a perusal of the complaint and if the case does not attract the provisions the provisos to Section 200, it would be violative of the mandatory provisions of law, and, this is the "ratio decidendi" of Nirmaljit Singh (supra). In this view of the matter, I am unable to find any merit in the contention of the learned Counsel for the Petitioner.

Be that as it may, in the instant case there is no material that any witness was present besides the complainant on the date of examination u/s 200. The Petitioner has not averred anywhere that any other witness was present on that date What has been stated reads:

Your Petitioner states that there are no materials on record in the present case to show that besides the complainant other witnesses were not present in the court on the date when congnizance was taken and processes were issued.

As such, when there is no allegation that there was any witness present the Petitioners are disentitled to take up the plea of violation of Section 200 by the learned Magistrate for not examining "witnesses present if any". The counsel for the Petitioner has relied on 1974 Crl. L.J, 182, Jitendra Nath Mitra and Another Vs. State, , P.S. Ramaswami Nadar Vs. R. Viswanathan and Another, in support of his contention. The Calcutta decisions have been over-ruled in Tara Dutta v. State AIR 1975 Cal. 460 (fB) and their Lordships dissented from the views expressed in Nadar (supra). I respectfully agree with the views expressed in Tara Dutta (supra). Therefore, there is no decided case supporting the contention of the learned Counsel for this Petitioner.

On scrutiny of Section 200 it appears clear that the Magistrate has three-fold duties; (i) he has to examine upon oath the complainant and the witnesses, if any; (ii) he has to record the substance of such examination, and (iii) they must be recorded in writing signed by deponents and also by him. These are the procedural requisites. Section 204 empowers the Magistrate to issue process no sooner he reaches his "opinion" that "there is sufficient ground for proceeding". The formation of the opinion based on materials on record empowers the Magistrate to issue process u/s 204. The object of examination of the complainant and his witnesses is to enable the Magistrate to form the requisite opinion. Section 203 empowers the Magistrate to dismiss a complaint only when he forms an opinion that there is no sufficient ground for proceeding. Therefore, if a Magistrate dismisses a complaint merely upon examination of the complainant but without "examining any other witness present, if any," it terminates the proceedings and deprives the complainant to get relief asked for in the proccedings, It is a serious matter. If the Magistrate refuses or fails to examine other witness produced and forms an opinion that there is no sufficient ground, it amounts to the formation of opinion on the basis of incomplete materials and the opinion itself is vitiated for not taking into consideration other relevant materials. The procedure would be violative of Section 200 read with Section 203 of "the Code". But when a Magistrate forms an opinion as to the existence of "sufficient ground" for proceeding u/s 204 only upon examination of the complainant, the formation of the opinion cannot be questioned as violative of Section 200, if it is based on materials contained in the complaint petition and the statement on oath of the complainant. This is the plain meaning of the provisions with which we are concerned. "Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the Statute speak the intention of the legislature" (vide Craies oft Statute Law, 3rd Edition, Page 66). It is the prime duty of the Court to try and harmonise various provisions of an Act passed by legislature and to give reasonable, healthy and invigorating construction which upholds the cause of justice. It is hereby possible to import an obligation on the Magistrate, as suggested by the learned Counsel for the Petitioner, when the statute does not provide for if. Such an importioner is neither desirable nor reasonable. This disposes of the first and main contention of the learned Counsel for the Petitioners.

The other point though taken in the petition but not seriously urged is that the Magistrate was bound to postpone the issue of proccss against the accused and ought to have proceeded u/s 202 of "the Code". To proceed u/s 202 is entirely a discretionary matter for the Magistrate "if he thinks fit". The learned Magistrate did not think it to be fit and there ends the matter. There was nothing before the Magistrate about the existence of any Forest Case referred to in the petition nor the same could be a sufficient ground for, proceeding u/s 202 of the Code, The scope of Section 202 is limited only to the extent of ascertainment of truth or falsehood of the allegations made in the complaint (i) on the materials placed by the complainant before the Court; (ii) to find out whether a prima facie case for issue process has been made out and (iii) (sic) decide the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is not within the province of the Court to enter into a detailed discussion of the merits and demerits of the case. In a proceeding u/s 202 the accused has no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not vide Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, Nagawwa v. Konjalgl. As such, there is no illegility committed by the learned Magistrate in not proceeding u/s 202 of the Code of Criminal Procedure, on the facts and circumstances of the case.

In the result, I hold that there is no force in any of the contentions of the learned Counsel for the Petitioner. These are the reasons for which I dismissed the petition on 11.3.81.