TaxTMI 
TaxTMI 
TaxTMI 
2010 (7) TMI 954
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....port on the same day at Police Station, Isuapur. After conducting investigation, the police submitted final form on 3.9.1998 with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition accusing the police of not conducting the investigation properly due to political pressure and prayed that the accused persons be summoned and punished. By an order dated 3.9.2002, the learned Judicial Magistrate accepted the final form submitted by the police but, at the same time, directed that the protest petition be registered as a separate complaint. He also directed the complainant (appellant herein) to produce his witnesses. The appellant examined himself and two out of four witnesses cited in the protest petition-cum-complaint but gave up the remaining two witnesses because he thought that they had been won over by the accused. After considering the statements of the appellant and two witnesses, Chief Judicial Magistrate, Saran passed an order dated 13.12.2006 whereby he took cognizance against respondent Nos.1 to 4 for offence under Section 302 read with Section 120B Indian Penal Code and Section 27 of the Arms Act and directed issue of non ba....
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.... XIV of Cr.P.C. enumerates conditions for initiation of proceedings. Under Section 190, which forms part of the scheme of that chapter, a Magistrate can take cognizance of any offence either on receiving a complaint of facts which constitute an offence or a police report of such facts or upon receipt of information from any person other than a police officer or upon his own knowledge, that such an offence has been committed. Chapters XV and XVI contain various procedural provisions which are required to be followed by the Magistrate for taking cognizance, issuing of process/summons, dismissal of the complaint, supply of copies of documents and statements to the accused and commitment of case to the Court of Sessions when the offence is triable exclusively by that Court. Sections 200, 202, 203, 204, 207, 208 and 209 Cr.P.C. which form part of these chapters and which have bearing on the question raised in this appeal read as under: "200. Examination of complainant.- 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 ....
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....on that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall record his reasons for so doing. 204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrates having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the ....
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....ct that he will only be allowed to inspect it either personally or through pleader in Court. 209. Commitment of case to Court of Session when offence is triable exclusively by it.-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- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (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." 7. An analysis of the above reproduced provisions shows that when a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, ....
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....he accused, copies of the police report, the first information report recorded under Section 154, the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other document or relevant extract thereof, which is forwarded to the Magistrate along with police report. Section 208 provides for supply of copies of statement and documents to accused in the cases triable by the Court of Sessions. It lays down that if the case, instituted otherwise than on a police report, is triable exclusively by the Court of Sessions, the Magistrate shall furnish to the accused, free of cost, copies of the statements recorded under Section 200 or Section 202, statements and confessions recorded under Section 161 or Section 164 and any other document on which prosecution proposes to rely. Section 209 speaks of commitment of case to the Court of Sessions when offence is triable exclusively by it. This section casts a duty on the Magistrate to commit the case to the Court of Sessions after complying with the provisions of Section 208. Once the case is committed, the trial is to be conducted by the Court of Sessions in accordance with the provision....
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....used only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy. 10. In Kewal Krishan v. Suraj Bhan (supra), this Court examined the scheme of Sections 200 to 204 and held: "At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges." 11. The aforesaid view was reiterated in Mohinder Singh v. Gulwant Singh (supra) in the following words: "The scope of enquiry under Section 202 is extremely restricted o....
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.... to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused. 13. We may now refer to the judgment in Rosy v. State of Kerala (supra) on which reliance has been placed by both the learned counsel. The factual matrix of that case reveals that the Excise Inspector filed a complaint before Judicial Magistrate, Thrissur for offences punishable under Section 57-A and 56(b) of the Kerala Abkari Act. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Thrissur. After the prosecution examined witnesses, the accused were questioned under Section 313 Cr.P.C. The public prosecutor then filed an application for recalling two witnesses, who were recalled and examined. Thereafter, further statements of the....
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....for deciding whether to issue process (under Section 204) or to dismiss the complaint (under Section 203). Under Section 200, on receipt of the complaint, the Magistrate can take cognizance and issue process to the accused. If the case is exclusively triable by the Sessions Court, he is required to commit the case to the Court of Session." Shah, J. also referred to the judgment of the Full Bench of Kerala High Court in Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635 and of Madras High Court in M. Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917, approved the ratio of the latter decision that Section 202 is an enabling provision and it is the discretion of the Magistrate depending upon the facts of each case, whether to issue process straightaway or to hold the inquiry and held: "We agree with the conclusion of the Madras High Court to the effect (sic extent) that Section 202 is an enabling provision and it is the discretion of the Magistrate depending upon the facts of each case, whether to issue process straight away or to hold the inquiry. However, in case where inquiry is held, failure to comply with the statutory direction to examine all the witnesses would not vitiate....
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.... a case where he failed to examine the witnesses before issuing process to the accused? The mere fact that the word "or" is employed in clause (i) of Section 208 is not to be understood as an indication that the Magistrate is given the freedom to dispense with the inquiry if he has already examined the complainant under Section 200. A case can be visualised in which the complainant is the only eyewitness or in which all the eyewitnesses were also present when the complaint was filed and they were all examined as required in Section 200. In such a case the complainant, when asked to produce all his witnesses under Section 202 of the Code, is at liberty to report to the Magistrate that he has no other witness than those who were already examined under Section 200 of the Code. When such types of cases are borne in mind it is quite possible to grasp the utility of the word "or" which is employed in the first clause of Section 208 of the Code. So the intention is not to indicate that the inquiry is only optional in the cases mentioned in Section 208. If a case instituted on a complaint is committed to the Court of Session without complying with the requirements in clause (i) of Section....
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....strate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). 15. In Birendra K. Singh v. State of Bihar (supra), the only question considered by this Court was whether non-compliance of Section 197 Cr.P.C. was fatal to the prosecution. While holding that an objection regarding non-compliance of Section 197 can be raised only after the case is committed to the Court of Sessions, this Court observed that it was not made aware of the fact whether process was issued after complying with the provisions of Section 202. Therefore, that judgment cannot be read as laying down a proposition of law on interpretation of proviso to Section 202(2). That apart....