State vs Kapur Singh and others

K.S. Tiwana, J.—Shri V.K. Jain Learned Additional Sessions Judge, Karnal, vide orders dated 17th of September, 1976, has submitted this reference u/s 395(2) of the Code of Criminal Procedure, 1973, for quashing of the commitment of the accused made by the Judicial Magistrate 1st Class, Panipat u/s 307 of the Indian Penal Code on the basis of a complaint filed by one Randhir Singh, resident of Urlana Kalan, District Karnal.

The facts leading to the reference are that on 7th of February, 1976, at 6.30 P.M. Lakhvir Singh of village Urlana Kalan made a report u/s 307/34, Indian Penal Code, against Nishan Singh, Kapur Singh, Ranga Singh and Kala Singh of the same village, After investigation the police laid a charge-sheet against Nishan Singh, Kapur Singh and Ranga Singh. As the investigating agency did not feel satisfied about the complicity of Kala Singh in the commission of the offence, he was shown in column No. 2 of the report submitted u/s 173 of the Code of Criminal Procedure, 1973, hereinafter referred as the Code The complainant party did not feel satisfied with the conduct of the investigation in not sending up Kala Singh for trial. Randhir Singh then filed a complaint on 24th of April, 1976 in the Court of the Judicial Magistrate 1st Class, Panipat against all the four above mentioned accused for the same offence. A prayer was made in the complaint that as Nishan Singh, Kapur Singh and Ranga Singh had already been prosecuted by the police, the Court may not summon them as accused and should commit only Kala Singh to trial.

After recording the evidence of four witnesses, the learned Magistrate vide his orders dated 7th of May, 1976, summoned Kala Singh as accused and after complying with the provisions of section 208 of the Code committed him for trial to the court of Session.

Before the commencement of the trial, certain objections were raised on behalf of the accused'' The learned Additional Sessions Judge felt difficulty in deciding those and formulated the following questions :--

Is the Magistrate not bound to call upon the complainant to produce all the witnesses and is he not bound to examine them on oath before summoning the accused on the basis of a complaint which discloses the commission of an offence exclusively triable by the Court of Session or which discloses the commission of such offence which are not exclusively triable by the Court of session.

If the answer to the above questions is in the affirmative whether the order of the magistrate summoning the accused for an offence exclusively triable by the court of session and the order of commitment based upon that order of summoning is not illegal because of the fact that the Magistrate has not examined all the witnesses.

Whether in a case cognizance of which has been taken on the basis of a complaint by a private party the magistrate is bound to supply to the accused copies of statements recorded by the police u/s 161 Criminal Procedure Code even though the person who alone has been summoned on the basis of private complaint was shown in column of discharge by the police, but the police had filed a chalan against the remaining accused, as enjoined by section 200 (ii) of the Code of Criminal Procedure, 1973, and

If the answer to question No. 3 is in the affirmative whether the order of commitment is illegal if the accused is committed without giving him copies of the statements referred to in question No. 3.

and has made a reference to this court for decision.

Questions No. 1 and 2 are inter-linked. For proceedings before the committing magistrate after he received the complaint till the order u/s 204 of the Code summoning the accused was passed is necessary. On receipt of the complaint on 24th of April, 1976, it was adjourned to 26th April, 1976 for the statement of the complainant on the adjourned date no proceedings in the case were taken as the court time was over and the case was further adjourned to 28th of April, 1976 for the examination of the complainant''s evidence. On that date statement''s of two witnesses were recorded and the case was again posted for 1st of May, 1976 No proceedings were taken on that date and the case was adjourned to 7th of May, 1976 for the recording of the medical evidence. On that day after examining one witness and tendering two documents marked ''A'' and ''B'' the complainant closed his evidence and the learned Magistrate after perusing the statements of the witnesses examined before him summoned Kala Singh as an accused person.

The objection of the accused against the order of the learned Magistrate summoning Kala Singh as an accused on 7th of May, 1976 is based on proviso to sub-section (2) of section 202 of the Code that the learned Magistrate failed to follow the mandatory provisions of this proviso by not directing the complainant to examine all his witnesses. For the purpose of reference two sections of the Code are relevant for the point in issue, that is, section 200 and section 202. Both these sections are reproduced as under for reference :

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 reexamine them

Sec. 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 of 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 enquiry 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 as 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.

The learned Magistrate did not examine the complainant or his evidence on 24th of April, 1976, when the complaint presented before him As the above referred to ad-interim orders recorded by him in the case show he had postponed the issue of the process against Kala Singh with an idea to enquire into the allegations made against him. In this situation, section 200 of the Code is not attracted and the only section applicable is sec ion 202 of the Code The proviso to sub-section (2) of this section enjoins upon the Magistrate in unequivocal terms that when in cases triable exclusively by the court of session he is of the opinion that an enquiry requires to be made and for that purpose he postpones the issue of process, then it is obligatory upon him to call upon the complainant to examine all the witnesses before him. A similar matter came up before a Division Bench of this Court in Raj Pal Sood v. Ravinder Nath Vohra (1977) 79 P.L.R. 674. The facts of this case were similar to the facts of the case in hand and interpretation of proviso to section 202(2) of the Code was involved. The Division Bench observed as :--

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 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.

The matter is thus covered by an authoritative decision by a Division Bench of this Court, which does not require any further elucidation. The learned Magistrate, in the circumstances of the cage, as he had postponed the summoning of Kala Singh on 24th April, 1976, was required to call upon the complainant to produce all his evidence before summoning of the accused.

Questions No. 3 and 4 as formulated by the learned Additional Sessions Judge, Karnal, are again inter linked. In the order dated 6th of July, 1976, the learned Committing Magistrate has recorded.

Copies of the statements, copy of the complaint and copy of the medico-legal report on which reliance was placed by the complainant had been supplied to the accused.

The counsel for the accused has raised an objection that the accused was not supplied the copies of the statements of the prosecution witnesses recorded u/s 208 of the Code. Section 208 of the Code is as under.

Where, in a case instituted otherwise than, on a police report, it appears to the Magistrate is using 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 202, of all persons examined by the Magistrate ;

(ii) the statements and confessions, if any, recorded u/s 161 or section 164 ;

(iii) any documents produced before the Magistrate on which, the prosecution proposes to rely ;

Provided that if the Magistrate is satisfied that any such document is 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.

Prior to the amendment of the Code in 1973, in the cases instituted otherwise than on a police report, such documents as are contained in section 208 of the Code were not to be supplied to the accused In 1973, by enacting section 208 of the Code, the accused against whom cases were instituted on a police report and the accused against whom cases were instituted otherwise than on a police report have been brought at par. The accused of the latter category are also required to be supplied almost the same documents as are supplied to the accused prosecuted at the instance of the police. Although the order in the case, dated 6th of July, 1976 mentions the supply of the copies of the statements of the witnesses, the learned counsel for the accused states, that these did not include the statements of the witnesses recorded by the police during the course of investigation u/s 161 of the Code. As according to the learned counsel the mandatory provision of law by not supplying the statements of witnesses which they made before the police u/s 161 of the Code has been violated, the impugned order requires to be quashed A casual look of the language of section 208 of the Code suggests that the provisions are mandatory. But on deeper study of this provision. I do not feel inclined to agree with the learned counsel for the accused that the word, ''shall'' used in this section has a mandatory effect Under clause (ii) to section 208, the statements u/s 161 or 164 of the Code are included for supply to the accused. In a case instituted on the basis of a complaint the Magistrate may not be in a position to know from the contents of the complaint as to whether the statements of the witnesses were ever recorded by the police. This fact has to be brought to his notice either from the contents of the complaint by the Complainant or the accused that as a matter of fact at some occasion prior to the institution of the complaint the case was investigated by the police, which had recorded the statements of the witnesses u/s 161 of the Code. It is possible that the accused may not be himself in the know of the fact as to whether the statement of a particular witness has been recorded by the police or not, but he may know that the case was investigated by the police. In that case, an enquiry can be made from the investigating agency only if the accused or the complainant brings such a fact of investigation, to the notice of the court Unless the Committing Magistrate is posted with the knowledge of such an investigation, it will not be possible for him to see the compliance of the provisions of section 208 of the Code in the same effective manner in which it has been enacted by the legislature This instance cannot be exhaustive as different situations which may arise in different cases cannot be anticipated now In such a situation, if the provisions of section 208 of the Code are to be given a mandatory effect they may lead to the creation of an anomalous situation in given cases In case Kamal Krishna De Vs. State and Another, a Division Bench of the Calcutta High Court was seized of a similar situation and was called upon to interpret the provisions of section 208 of the Code. The Division Bench relying on Gurbachan Singh Vs. State of Punjab, and Narayan Rao Vs. The State of Andhra Pradesh, held :--

On a scrutiny of the record of the learned Magistrate we do not find that prior to the order of commitment the papers have been furnished to the accused. The word ''shall'' appearing in section 208 Criminal Procedure Code, is only directory. The omission to supply copies in the Magistrate''s Court does not vitiate the order of commitment. In the instant case the accused will not be prejudiced in any way if they are supplied with the copies of the papers before the learned Judge of the Court of Session take up the case for determining whether or not charge against the accused persons should be framed as contemplated by section 228, Criminal Procedure Code. But while we hold the word shall in section 208 to be directory, we do not intend to encourage latches on the part of the prosecution or the Magistrate who will be expected to comply with the provision except in exceptional circumstances.

I am in respectful agreement with the view expressed by the Division Bench of the Calcutta High Court to hold that the word ''shall'' as used in section 208 of the Code does not carry a mandatory effect. There is another reason for my drawing this conclusion, that is, under the new Code the Magistrate is not invested with the powers of weighing the evidence recorded by him for the purpose of framing the charge against the accused The Sessions Judge under sections 227 and 128 of the Code after commitment has to weigh the circumstances of the case against the accused as made cut from the documents placed before him u/s 173, Criminal Procedure Code, and supplied to the accused. The trial commences only after the framing of the charge and the return of the plea of guilt by the accused. There is no question of any prejudice to the accused before the stage of the trial as he can ask the Court of Session before commencing the trial or before hearing him on the charge to supply these statements or documents which have not been supplied to him by the investigating agency/committing magistrate, in either situation that is, in the case instituted on a police report and in the case instituted otherwise than on a police report. The provisions about the supply of the documents have been made only with a purpose to apprise the accused of the charge levelled against him and the evidence which the prosecution intends examining against him. If because of any omission may, be deliberate or inadvertant, such documents as mentioned in section 203 of the Code are not supplied, that cannot make a basis for questioning the legality of the commitment.

The omission or the non-supply of the documents or statements mentioned in section 208 of the Code can be remedied before the start of the trial, but that should not be taken by the Magistrates to avoid the compliance of section 208 of the Code in every case. These observations would cover the cases of inadvertant emissions, where the court or the other-party has not deliberately contributed in the non-supply of such documents to the accused.

In the previous paragraphs, I was discussing the general situation. In the case in hand the body of the complaint reveals that the charge against Kala Singh and his co-accused was investigated by the, police. The Magistrate should have enquired from the investigating agency if any statement was recorded of any witness and if the answer of the query had been in the affirmative, then he should have seen that that such statements were supplied to Kala Singh before the commitment. The record of the case does not show if any such query was over addressed by the learned committing Magistrate. This fact alone however would not be sufficient for quashing of the commitment in view of my observations made above.

As dealing with questions Nos. 1 and 2 I have found that the proviso to sub-section (2) of section 202 of the Code has been contravened by the failure of the learned Magistrate in not calling upon the accused to examine all his witnesses, the commitment is hereby quashed being in contravention of the express provisions of law. The learned Magistrate should now record the evidence and take proceedings in view of the above observations and the provisions of law.

The parties through their counsel are directed to put in appearance before the committing Magistrate on 21st of December, 1978.