Rajarathnam vs Anantha Narayanan and Others

Paul, J.—This is a petition u/s 482 Cri. P. C., for directing the Judicial Second Class Magistrate, Porto Novo to treat the case C. C. No.

2421 of 1976 as a Preliminary Register Case.

The petitioner filed a criminal complaint before the learned Judicial Second Class Magistrate of Porto Novo against the respondents in which

complaint he has alleged as follows : - On 26-7-1976 at about 7-15 a.m. the complainant and his brother Vadivelu were attacked by the third

accused and his men with koduwal and with sticks etc. and injuries were caused to the complainant and his brother; whereupon the complainant

went and reported the matter to the police who thereupon sent him and his brother to the hospital where they were treated till 6-8-1976 and on 8-

8-1976 when the complainant was going to his doctor as he was having headache and was passing by the house of the third accused all the

accused were standing in the front of the house and on seeing him accused 3, 5 and 6 dragged him into the house of the third accused and the

other accused followed them into the house and there they wrongfully confined him and the accused 4 and 9 stood at the entrance of the house in

order to prevent the complainant from going out and then the third accused told the others that a pronote for Rs. 2,000 should be obtained from

the complainant since on account of the complainant they have been put to expenses. Whereupon the first accused wrote out a pronote in favour of

the fifteenth accused for Rs. 2,000 and affixed a stamp to it and asked the complainant to affix his signature to it; but the complainant refused;

whereupon the first accused brought a koduwal and handed it over to the third accused who thereupon threatened to cut the complainant down if

he had not affixed his signature to the document and hence out of fear the complainant affixed his signature to that document which was then

attested by accused 12 to 14, and the pronote was then signed by the first accused and handed over to the fifteenth accused and the third accused

after threatening to kill the complainant if he gave information to the police let him go and thereby the accused have committed an offence

punishable u/s 395, I.P.C.

It might be noted that such a complaint was presented on 9-8-1976 but the Magistrate sent it to the police for enquiry, apparently u/s 156 Cr.

P.C. but the police however have referred that case and hence the petitioner-complainant filed the complaint on the same facts, on 15-11-1976.

The Magistrate recorded the sworn statement of the complainant and took the case on file. The complainant then examined himself and another

witness on his side; and eventually the learned Magistrate framed a charge against the accused only for an offence u/s 384 I.P.C., to which the

accused pleaded not guilty.

The petitioner''s grievance is, first of all, that even though the allegations in the complaint, the sworn statement and the evidence of P.Ws. 1 and

2 clearly disclosed an offence u/s 395, I.P.C. which is triable exclusively by a court of Session, the Magistrate erred in framing a charge only for an

offence u/s 384 I.P.C. and secondly the learned Magistrate has not correctly followed the procedure laid down by the Code and had not held an

enquiry u/s 202 Cr. P.C. as he was bound to do; and under these circumstances a direction should be given to the Magistrate to treat the case as a

preliminary register case.

No doubt the allegations in the complaint do disclose an offence u/s 395 I.P.C. triable exclusively by a court of session. But then merely

because of those allegations, the Magistrate is not bound to treat the case as one exclusively triable by the Court of Session. Section 208, Cr. P.C.

states that 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 204, of all persons examined by the Magistrate; (ii) the statement and confessions if any, recorded under

,S. 161 or Section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely. Section 209 states that

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 Session, he shall commit the case to the Court of Session, etc. Therefore both the sections

enjoin that it should appear to the Magistrate that the offence is triable exclusively by the Court of Session. Only then he is bound to proceed under

Sections 208 and 209. It should also be noted that the procedure prescribed under these two sections follow the issue of process to the accused

u/s 204. We are not on the question as to whether on the materials it should appear to the Magistrate that the offence is triable exclusively by the

Court of Session and whether the Magistrate on the materials erred in not applying his mind to the question and hence it did not appear to the

Magistrate that the offence was exclusively triable by the Court of Session. The Magistrate can still u/s 323 Cr. P.C., at any stage of the

proceedings commit the case to the court of Session, if it appears to him that the case is one that ought to be tried by the Court of Session.

Therefore it is still open to the Magistrate after the entire evidence is let in to apply his mind as to whether the case is one which ought to be tried

by the Court of Session and if it appears to him then that the case is one which ought to be tried by the Court of Session he could still commit the

accused. Such being the case, the petitioner cannot now invoke at this stage the inherent powers of this Court u/s 482 Cr. P.C. and ask this Court

to direct the Magistrate to treat the case as a Preliminary Register case and commit it to the Court of Session.

The contention of the learned Counsel for the petitioner that inasmuch as Section 208 Cr. P.C. enjoins the Magistrate to furnish to the accused

in cases where it appears to the Magistrate issuing process u/s 204 that the offence is triable exclusively by the court of Session the statements

recorded u/s 200 or Section 202 of all persons examined by the Magistrate etc. etc. impliedly it was obligatory on the part of the Magistrate to

hold an enquiry u/s 202 Cr. P.C. in eases where the complaint discloses offences exclusively triable by the court of Session, cannot be accepted.

The learned Counsel for the petitioner has cited the decision of Krishnaswamy Reddy J. in Paranjothi Udayar v. State 1975 Mad LW 229 : 197

Cri LJ 598. Referring to proviso to Sub-section (2) of Section 202 Cr. P.C. the learned Judge has observed that the proviso to Clause (2) is very

important as it lays down a special procedure in respect of the offences complained of which are exclusively triable by the Court of Session, and

has observed that if it is an offence other than the offences triable exclusively by the Court of Session discretion is given to the Magistrate under

Clause (2) to take evidence of witnesses on oath, if the Magistrate thinks fit, but. the proviso does not give such a discretion to the Magistrate in

respect of an offence triable exclusively by the Court of Session and in such cases the proviso makes it mandatory that the Magistrate shall call

upon the complainant to produce his witnesses and examine them on oath and that once it appears to the Magistrate that the offence complained of

is triable exclusively by the Court of Session, he shall require the complainant to produce all his witnesses and examine them on oath. After

referring to the scope and object of Section 208, Cr. P.C., the learned Judge has observed that a reading of the proviso to Clause (2) of Section

202 together with Section 208 (1) would clearly show that on a complaint before the Magistrate where it appears that the offence is exclusively

triable by the 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 and similarly a copy of any statement recorded u/s 200 of

the Code by the Magistrate, shall also be furnished to the accused; and these provisions are mandatory.

Relying on these observations, the learned Counsel for the petitioner has argued that where the complaint discloses an offence triable exclusively

by the Court of Session, it is mandatory on the part of the Magistrate to hold an enquiry u/s 202, Cr. P.C. After very carefully reading the

judgment of Krishnaswamy Reddy J., I am not sure that the learned Judge has laid down such a proposition. He has reiterated the words ''if it

appears'' during the course of his judgment. Therefore only if it appears to the Magistrate that an offence exclusively triable by the court of Session

is disclosed that the Magistrate is bound to hold an enquiry u/s 202. Likewise, Section 208 and 209 also use the expression ''it appears to the

Magistrate''. Moreover, Sections 208 and 209 would apply only after process has been issued to the accused. In this case, the Magistrate had

issued process u/s 204 and thereafter he has to proceed under Chap, XVI; and if at any stage it appears to the Magistrate that the case is one

which ought to be tried by the Court of Session then he shall commit to that court u/s 323, Cr. P.C. When the course is still open, the petitioner

cannot now invoke the inherent powers of this Court and ask for a direction to the Magistrate to enquire into the case as a Preliminary Register

case.

In P.R. Murugaiyan Vs. Jayaveera Pandia Nadar, this Court has observed that the word ''appear'' is frequently used in judicial proceedings as

meaning ''clear to the comprehension'' where applied to matters of opinion or reasoning, and ''satisfactorily or legally known or made known'' when

used in reference to facts of evidence; and when a statute requires that a certain conclusion is being to appear as a ground for proceeding by any

tribunal, facts from which that con-elusion follows must be proved; and the word ''appears'' is commonly used in two senses, in one sense, it means

''manifest, obvious or proved'' and in the other, it means ''seems''. It was further observed in that decision that in view of the meaning of the word

''appears'' given above, if we read Sections 202, 208 and 209, where the word ''appears'' occurs, it would mean that the Magistrate has to apply

his mind and satisfy himself subjectively; and as these words ''it appears to the Magistrate'' appear at three stages as mentioned supra, in

proceedings instituted otherwise than on a police report, the same words appearing in Section 209 are redundant so far as proceedings on private

complaints are concerned. Ratnavel Pandian J. recommended in that decision 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 sufficient safeguard to the accused before the court resorts to

Section 204.

In Nathan Vs. Vaithinathan and Others, this Court held that by reason of Section 397 (2) Cri. P. C., 1973, the powers of revision conferred by

Sub-section (1) of Section 397 shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

In a case where the bar u/s 397 (2), Cr. P.C. would operate, that bar cannot be circumvented by having recourse to Section 482, Cr. P.C. On

this ground the request made by the petitioner in this petition cannot be granted.

Mr. Gopinath, learned Counsel for the petitioner has argued that the Magistrate framing a charge only for an offence u/s 384, I.P.C. would

amount to an implied discharge of the accused for an offence u/s 395, I.P.C. But then in such a case it is for the petitioner to move under the

relevant provisions for setting aside the implied order of discharge. I therefore find no ground to issue such a direction as has been prayed for by

the petitioner. This petition is therefore dismissed.