Sulaiman vs Eachara Warrier

Narayana Pillai, J.—Petition u/s 482 of the Code of Criminal Procedure, 1973, Act 2 of 1974. Although the prayer in it is for quashing the entire proceedings in P.E. 5 of 1977 on the file of the Judicial First Class Magistrate, Perambra, at the time of the hearing it was limited by counsel appearing for the Petitioner, accused fro. 15, to quashing the summons issued to him u/s 204 of the Code.

What is submitted is that the learned Magistrate erred in proceeding u/s 204 before calling upon the first Respondent, the complainant, to produce all his witnesses and examining them also as required by the proviso to Section 202(2).

The complaint takes in offences exclusively triable by Court of Session also.

Janaki Amma, J. held in Kochu Mohammed and Others Vs. State of Kerala and Another, that if the provisions of Section 200 were complied with, non-compliance with the provisions of the proviso to Section 202(2) would not render the order of committal illegal or irregular. The present case was referred to a Bench of two Judges by the same learned Judge when the correctness of her decision was canvassed before her. That is how the matter now comes up before us.

By now there are several other reported decisions also on this matter. They are:

The State Vs. Kastu Behera, , Boya Lakshmanna v. Boyachinna Narasappa (Andhra Pradesh) 1976 Crl. L.J. 127, Budaraju Seshagiri Rao v. T.V. Sarma (Andhra Pradesh) 1976 Crl. L.J. 902 Paranjothi Udyar v. State (Madras) 1976 Crl. L.J. 598, P.R. Murugaiyan v. Jayaveera Pandia Nadar (Madras) 1977 Crl. L.J. 1700, and Kamal Krishna De v. State (Calcutta) 1977 Crl. L.J. 1492. Of them the decisions in The State v. Kastu Behera 1975 Crl. L.J. 1178, Boya Lakshmanna v. Boyachinna Narasappa 1976 Crl. L.J. 127, and Budaraju Seshagiri Rao v. T.V. Sarma 1976 Crl. L.J. 902 , support the view taken by Janaki Amma, J. in Kochu Mohammed and Others Vs. State of Kerala and Another, . The other decisions either take a different view or contain observations to the contrary.

The reasons given by Petitioner''s counsel for the view that a Magistrate after examination u/s 200 of the complainant and the witnesses present, if any, cannot straightaway proceed u/s 204 and issue process to the accused are the following: A Magistrate dealing with a complaint alleging commission of offences exclusively triable by a Court of Session, if he does not dismiss the complaint u/s 203, has necessarily to commit the case to the Court of Session u/s 209. If commitment is made of such a case the accused has to be furnished u/s 208(i) with copies of the statements recorded u/s 200 or Section 202 of the persons examined by the Magistrate. That implies that the Magistrate should before he commits an accused have examined all the witnesses referred to in Section 202(2) proviso of the Code also.

Now, the provision in Section 208(i) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements u/s 200 or Section 202. Use of the word ''or'' there is important. It is used there disjunctively and not conjunctively. When so read it produces an intelligible result. It then means that the accused should be furnished with copies of the statements of persons recorded u/s 200 or Section 202 as the case may be. Section 208(i) does not contemplate an accused being furnished with copies of statements recorded u/s 202 when the commitment is made based on the statements taken u/s 200 alone.

There is nothing in the Code prohibiting a Magistrate after taking cognizance of an offence and examination by him of the complainant and the witnesses present, if any, u/s 200 from straightaway issuing process u/s 204. The question then is whether the proviso to Section 202(2) stands in the way of doing that. That proviso is one to Section 202(2). Section 202(2) is specific that what is contained therein is applicable only to the inquiry referred to in Section 202(1). In Section 202(1) what is provided is that if the Magistrate thinks that postponement of the issue of process against an accused u/s 204 is necessary for deciding whether there is sufficient ground for proceeding he "may" either inquire into the case himself or direct investigation to be made by a police officer. Mark the word ''may'' there. That shows that it is open to him not to postpone the issue of process u/s 204 of the Code also. If he does not think fit to postpone the issue of process against the accused it is open to him to straightaway issue process u/s 204 after examination of the persons contemplated by Section 200 of the Code. The choice is solely with the Magistrate. It is a matter entirely in his discretion. No fetter should be placed on that discretion. To tell the Magistrate that it is always desirable that in private complaints involving offences triable exclusively by the Court of Session he should follow the provisions of the proviso to Section 202(2) is to interfere with that discretion and that is not warranted by Section 202(1). Proviso (a) to Section 202(1) shows that direction regarding investigation by a police officer should not be made by the Magistrate if the offence complained of is exclusively triable by a Court of Session. In such a case, it he thinks that postponement of issue of process is necessary for finding out whether there is sufficient ground for proceeding he has to inquire into the case himself. And if he does that the proviso to Section 202(2) is immediately attracted. That proviso makes it obligatory on his part to call upon the complainant to produce all his witnesses and then to examine them on oath. But such a procedure is not contemplated if the Magistrate thinks after complying with the provisions of Section 200 that it is not necessary to postpone the issue of process against the accused for the purpose of finding out whether there is sufficient ground for proceeding.

It is submitted that the interpretation now given to the proviso to Section 202(2) of the Code does not advance the object of the enactment. In the statement of objects and reasons in the note to the relevant clause, namely Clause 214, what is mentioned is that preliminary enquiries in cases exclusively triable by Court of Session serve no useful purpose and so are proposed to be done away with altogether. As regards private complaints what is stated is that inquiry into the complaint by the Magistrate under the then existing Section 202 would serve the purpose of preliminary scrutiny. Proviso to Section 202(2) was added only by the amendment.

The object of the legislature was to do away the entire preliminary enquiry. An exception was made only in the case of private complaints and that only if the Magistrate was not satisfied on the materials already available that there was no sufficient ground for proceeding. To meet such a contingency Section 202(1) provided that he may postpone the issue of process and inquire into the case himself for the purpose of deciding whether or not there was sufficient ground for proceeding. The interpretation now put forward is in accordance with the object of the enactment.

With respect we consider the decision of this Court in Kochu Mohammed and Others Vs. State of Kerala and Another, and the decisions of the Orissa High Court in The State v. Kastu Behara 1975 Crl. L.J. 1178 and of the Andhra Pradesh High Court in Boy a Lakshmanna v. Boyachinna Narasasappa 1976 Crl. L.J. 127 and Budaraju Seshagiri Rao v. T.V. Sarma 1976 Crl. L.J. 902 as correct and we do not agree with the decisions to the contrary of the Madras and Calcutta High Courts in Paranjothi Udyar v. State 1976 Crl. L.J. 598 and Kamal Krishna De v. State 1977 Crl. L.J. 1492 and the observations in P.R. Murugaiyan v. Jayaveera Pandia Nadar 1977 Crl. L.J. 1700 tending to fetter the discretion to be used u/s 202(1) and to interfere with the power to dismiss complaint u/s 203 straightaway after complying with the provisions of Section 200 of the Code.

As a result of the above discussion as regards procedure to be followed in cases instituted on private complaints involving offences exclusively triable by a Court of Session our conclusions are the following:

(1). After taking cognizance of the offences and examination u/s 200 of the Code of the complainant and the witnesses present, if any, it is open to a Magistrate to straightaway dismiss the complaint u/s 203 of the Code if he is of opinion that there is no sufficient ground for proceeding. On the other hand if at that stage he is of opinion that there is sufficient ground for proceeding then he can straightaway issue u/s 204 of the Code process to the accused. In that case the Magistrate need furnish to the accused u/s 208(i) of the Code only copies of the statements recorded u/s 200 of the Code.

(2) After complying with the provisions of Section 200 of the Code if the Magistrate thinks that there should be further material for finding out whether or not there is sufficient ground for proceeding then he may u/s 202 of the Code postpone the issue of process against the accused and inquire into the case himself.

and (3) If he so inquires himself into the case then it is peremptory under the proviso to Section 202(2) of the Code that he should call Upon the complainant to produce all his witnesses and examine them on Oath. If after conducting such inquiry he is of opinion that there is Sufficient ground for proceeding and he issues u/s 204 of the Code process to the accused he should u/s 208(i) of the Code furnish to the accused copies of statements recorded u/s 202 of all persons examined.

In the present case the Magistrate issued summons to the accused u/s 204 of the Code after complying with the provisions of Section 200 of the Code. That was neither illegal nor irregular. Further no question of giving effect to any order under the Code or preventing abuse of the process of the court so as to invoke the inherent power of the Court is involved here. Hence this petition is dismissed.