Raj Pal Sood vs Ravinder Natha Vohra

A.S. Bains, J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the process of summoning the accused and the order of commitment.

The Petitioner, who is an Executive Engineer in P.W. D. (Irrigation Branch), Punjab, was posted as such at Malerkotla and the complainant�respondent Ravinder Nath Vohra was a lecturer in the Government College, Maleikotla at the relevant time. A report was lodged by the respondent Ravinder Nath Vohra in the Police Station, Malerkotla, under sections 332 and 353, Indian Penal Code, on March 29, 1975, against the petitioner regarding an occurrence which took place in the office of the Principal of the college. It was still under investigation with the police when Shri Vohra filed a complaint in the Court of the Judicial Magistrate 1st class, Malerkotla, under sections 333, 353 and 448, Indian Penal Code, against the petitioner (copy of the complaint is attached with the application as Annexure P. 1). He had annexed with the complaint a list of seven witnesses out of whom he examined only three witnesses at preliminary stage. The learned Magistrate vide his order dated September 20, 1975 (Annexure P. 2) summoned the petitioner for an offence under sections 333 and 353 of the Indian Penal Code. Subsequently,, the learned. Magistrate vide his order dated January 13, 1976 (Annexure P. 3) committed the petitioner to the Court of Session for trial under sections 333 and 353, Indian Penal Code. It is in this situation that the petitioner has come to this Court for quashing the proceedings initiated against him.

The main ground urged by the counsel for the petitioner is that the learned Magistrate was in legal error in summoning the petitioner without examining all the witnesses, who were mentioned in the list annexed with the complaint as the offence alleged was exclusively triable by the Court of Session. The Learned Counsel says that non-examination of the remaining witnesses has resulted in manifest injustice, besides it contravened mandatory provision of proviso to section 202(2) of the Code of Criminal Procedure, which is in the following terms:�

(2) In an inquiry under sub-section (1), the Magistrate may, if he Links fit, take evidence of witnesses an oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

A reading of the proviso shows that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

Mr. Manmohan Singh the Learned Counsels for the petitioner, also relied upon a decision of this Court in Jagdisher Singh and others V. Majid Khan CrM No. 5011-M of 1975, Criminal Miscellaneous No. 5011. M. of 1975 decided on March 1, 1976, in which the learned Single Judge of this Court held as under:�

The complainant had cited ten witnesses in the complaint but produced only two witnesses and the accused were summoned. The proviso to sub-section (2) of section 202 of the Criminal Procedure Code has not been complied with and the order is therefore, not legal. The Learned Counsel for the respondent could not plausibly contest this position. I, therefore, quash the order of the Magistrate dated 28th August, 1975, and direct that the inquiry be now held by the Chief Judicial Magistrate, Sangrur, who may deal with the case in accordance with law.

The Learned Counsel for the petitioner has also relied upon Paranjothi Udyar and Others Vs. State and Others, wherein it was also held by the Madras High Court that the proviso to section 202 of the Code of Criminal Procedure is mandatory and its non-compliance vitiates the proceedings.

Mr. D.S. Bali, counsel for the complainant-respondent, has cited Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another, , and Boya Lakshmanna Vs. Boyachinna Narasappa and Another, Both are the authorities of the Andhra Pradesh High Court where a contrary view has been taken.

The question is not free from difficulty and it is likely to arise in a number of cases. Therefore, 1 direct that the papers be laid before my Lord the Chief Justice for constituting a larger bench to decide the matter.

JUDGMENT OF THE DIVISION BENCH (ORAL)

B.S. Dhillon, J.

This case has been referred to a larger Bench by the learned Single Judge. It involves the question of interpretation of sub-section (2) of section 202 of the Code of Criminal Procedure (hereinafter referred to as the Code). Since there is no authoritative pronouncement of this Court, the question was, therefore, referred to a larger Bench. The question to be resolved is whether it is incumbent upon the Magistrate taking cognizance of an offence u/s 202 of the Code to record the evidence of all the witnesses mentioned in the complaint in a case triable by the Court of Session. In order to decide this point, it would be necessary to refer to some relevant provisions of the Code. Sections 200, 202, 203, 208 and 209 of the Code reads as follows:�

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) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or

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

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter - Magistrate, need not re-examine them.

202(1) Any Magistrate, on receipt of a complaint of an offence of 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 or process against the accused and either inquire into the case himself or direct an investigation to be made by a 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 Session: or

(b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200.

(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 Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) u/s 202, the Magistrate is of opinion that there is not sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

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 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 or section 164:

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

Provided that if the Magistrate is satisfied that any such decoys voluminous he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court.

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall�

(a) commit the case to the Court of Session;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence ;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session ;

From the bare reading of the above mentioned provisions of the Code, it is apparent that when a Magistrate examines the complaint and the witnesses present u/s 200 of the Code he takes cognizance of the offence and may straightway issue process. This may happen in both types of cases, namely cases triable by the Magistrate and the cases triable by the Court of Session. But in cases he thinks it fit to postpone the issue of process against the accused, in that event he can either inquire into the case himself or direct the investigation to be made by the Police Officer or such other person as he thinks fit in accordance with the provisions of sub-section (1) of section 202 of the Code Proviso to sub-section (2) of section 202 of the Code further provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session he shall call upon the complainant to produce all his witnesses and examine them on oath. u/s 203 of the Code the Magistrate, after considering, the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any), u/s 202, may dismiss the complaint. Section 208 of the Code provides for the supply of copies of statements and documents recorded u/s 202 of the Code to the accused if it appears to the Magistrate that the case is triable exclusively by the Court of Session, whereas section 209 of the Code prescribes the procedure of commitment of cases to the Court of Session. The combined reading of all these provisions would show that the legislature thought it fit to divide the cases into two categories. The first category of cases is where the Magistrate feels satisfied after recording the statements of the complainant and the witnesses present under S. 200, the cases of the type that by mere examination of the complainant and witnesses which he chose to produce, the Magistrate forms the opinion that there is prima facie ease to issue process against the accused. The second category of cases is where the Magistrate is not satisfied after I recording the statement of the complainant and the witnesses produced by him and he feels that further inquiry into the matter is necessary. In that case he can hold further inquiry and in view of the proviso to sub-section (2) of section 202 of the Code he is enjoined upon to record the statements of all the witnesses relied upon by the complainant. It is only after this inquiry has been held that he has been given powers u/s 203 of the Code to dismiss the complaint Section 208 of the Code clearly provides that in case a process is issued u/s 200, Copies of the statements recorded u/s 200 have to be supplied to the accused. Where further inquiry has been held u/s 202 of the Code, copies of the statements of the persons examined by the Magistrate have to supplied to the accused, free of cost if the case is triable by the. Court of Session.

The Learned Counsel for the petitioner has relied upon a decision of the Madras High Court in Paranjothi Udyar and Others Vs. State and Others, whereas the Learned Counsel for the respondent relies upon two decisions of the Andhra Pradesh High Court in Budaraju Seshagiri Rao and Others Vs. T.V. Sarma and Another, and Boya Lakshmanna Vs. Boyachinna Narasappa and Another, . After going through the decisions relied upon by the Learned Counsel for the parties we find that the view taken by the Madras High Court and that of the Andhra Pradesh High Court in the above cases, is not at variance. In the cases decided by the Andhra Pradesh High Court, it was held that if a Magistrate decides not to postpone the process, in that case, he is not required to follow the proviso to sub-section (2) of section 202 of the Code. We have also taken the similar view. As regards the decision of the Madras High Court in Paranjothi Udyar''s case (supra), the Court took the view that if further inquiry is held, in that case proviso to sub-section (2) of section 202 of the Code will have Co be complied with. We have interpreted this provision in the same manner.

So far as the facts of the present case are concerned, it is not disputed that vide his order dated January 13, 1976, the Magistrate postponed the issuance of the process as we find that evidence of some of the witnesses was recorded on September 20, 1975. In this view of the matter, the Magistrate thought it fit to postpone the process whereby he wished to hold further inquiry as postulated in the provisions of section 202 of the Code. The provisions of sub-section (2) of section 202 of the Code being mandatory, the Magistrate was bound to record the evidence of all the witnesses relied upon by the complainant. This was admittedly not done by the Magistrate. In this view of the matter, the process issued to the petitioner and consequently his commitment to the court of Session for trial are quashed. It will however, be open to the Magistrate to record the evidence of all the witnesses relied upon by the complainant and to proceed further in accordance with law.