Rajathi and 2 others

David Annoussamy, J.—This is a reference from the Subordinate Judge acting as Assistant Sessions Judge, Coimbatore. A complaint was made before the Judicial II Class Magistrate No. III, Coimbatore, for offences under Ss. 364, and 367, IPC which are offences exclusively triable by the Sessions Court. The complainant was examined on oath by the Magistrate under S.200, Crl.P.C., on 15th July, 1983 and he committed him to the Sessions Court by order dated 3rd August, 1983. Upon receipt of that committal order, the Assistant Sessions Judge made the following reference:

On the basis of a private complaint given by one D. Vijayakumar, the learned Judicial II Class Magistrate has committed the accused for trial before the Court of Sessions for an offence punishable under Ss.364, and 367, I.P.C. The complaint being a private complaint, the lower court ought to have conducted an enquiry as required by S.202 (2), Crl.P.C., proviso and should have committed the accused if necessary�vide S.202 (2), Crl.P.C., proviso which runs as follows:

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

But he did not do so. On the contrary, the lower court has simply committed the accused as if the case was on the basis of a Police report. In this case, the lower Court has not examined the witnesses cited in the complaint and so the said witnesses cannot even be examined in this Court. Therefore, the procedure adopted by the Lower Court is wrong, illegal and liable to be quashed--vide judgment reported in Paranjothi Udyar and Others Vs. State and Others, wherein the procedure to be followed in case of private complaint for an offence exclusively triable by Court of Sessions is indicated. Therefore, I submit the records for perusal of the High Court and for appropriate action. The remarks of the concerned Judicial Second Class Magistrate are also submitted herewith.

The Public Prosecutor was heard and he has elaborately dealt with the matter and placed before me the following decisions:

Paranjothi Udyar and Others Vs. State and Others,

Sakati Narayan Vs. Bhasani Lachu and Another,

Babu Ram v. State of U.P. 1978 Cri.L.J. 1430

Gobinda Ghosh and Others. Vs. Smt. Subala Ghosh,

Bhargavi Ammal v. Ravindran Nair 1979 ILR Ker 610 (F.B.)

Shyamkant Wamanrao Pawar and others Vs. State of Maharashtra and others,

Ramchander Rao and Others Vs. Boina Ramchander and Another,

Rashid Ahmed and Others Vs. Mohammad Jalil Ashraf and Others,

Smt. Anisa and Another Vs. Banne Khan,

M. Govindaraja Pillai v. Thangavelu Pillai 1983 Cri.L.J. 917 : 1983 L.W. Crl. 23.

The learned Public Prosecutor further stated that the decision quoted last has overruled the decision referred to in the reference by the learned Assistant Sessions Judge and that therefore the reference was not necessary.

With the benefit of the elaborate analysis and discussions found in the above decisions, my understanding of the provisions of law with regard to the reference is as follows:

In the case of a private complaint, the Magistrate takes cognizance thereof under S.190, Cr.P.C. Then he examines upon oath the complainant and the witnesses present, if any, under S.200, Cr.P.C. When this is over, three ways are open to the Magistrate. He can either dismiss the complaint or issue process or decide to have a further enquiry and postpone to that effect the issue of process. From the phrase ''may if he thinks fit'' found in S.202, Cr.P.C., it is clear that the postponement of issue of process is optional. The same is confirmed by the phrase ''if any under S.202'' found in S.203, Cr.P.C. As far as a case triable exclusively by the Court of Session is concerned, if, and only if, the Magistrate chooses to postpone issue of process under S.202, Cr.P.C. he has to enquire into the case himself and in such an enquiry he has to call upon the complainant to produce all his witnesses and examine them on oath. Therefore it is clear that it is mandatory upon the Magistrate to examine all the witnesses on oath in a case triable exclusively by the Court of Sessions only if he has chosen the course of postponing the issue of process provided in S.202, Cr.P.C. But if he has not chosen such a course, he need not examine the witnesses other than those examined under S.200, Cr.P.C. After the issue of the process in a case triable exclusively by a Court of Sessions, when the accused appears before the Magistrate he will commit him under S.209, Cr.P.C. Before doing so, he will comply with the provisions of S.208, Cr.P.C., If he has not resorted to the course of postponing the issue of process and enquiring further under S.202, Cr.P.C. he will have to give to the accused under S.208, Cr.P.C, the statements recorded under S.200, Cr.P.C. If on the contrary he has chosen to enquire into the matter further under S.202, Cr.P.C., and postponed the issue of process he will have to give statements recorded under S 202, Cr.P.C., as well. The word ''or'' found between the words ''S.200'' and ''S 202'' in S.208(i) indicates that the statements under S.202 would not exist in all cases confirming thereby that the Magistrate had a choice of resorting to enquiry under S.202 or not.

It is clear from the above that the Magistrate before committal need not in all cases call upon a complainant to produce alt his witnesses and examine them on oath under the proviso to Sub Section (2) to S.202, Cr.P.C., he will have to do so only whenever he chooses to postpone the issue of process under S.202, Cr.P.C. Thus it is seen that a wide discretion is given to the Magistrate after the examination of the complainant and the witnesses present under S.200, CrP.C., But the Magistrate should not forget that it is a Judicial discretion in which all the circumstances of the case have to be taken into account. The reference is answered accordingly.

In the present case the letter dated 24th September, 1983 of the Judicial II Class Magistrate No. III Coimbatore is self speaking. The Magistrate did not choose to conduct an enquiry and committed to the Sessions Court. He did so not because in his discretion he found that such was the proper course in the circumstances of the case. H� has instead proceeded in that way because he was nurturing the wrong opinion that once the examination under S.200, Crl.P.C., is over he has automatically to commit the matter to the trial Court. Such an order is obviously wrong and is set aside. In this case triable by a Court of Sessions he had on record the examination of the complainant alone and no other witness has been examined under S.200, Cr.P.C. This is inadequate to opt for the course of process. The circumstances warrant postponement of the issue of process and further enquiry under S.202, Cr.P.C. The Magistrate is directed to act accordingly.