TaxTMI 
TaxTMI 
TaxTMI 
2000 (1) TMI 1016
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....ocrastinate criminal proceedings unduly to unpalatable levels. Almost eleven years have passed since the alleged offence was committed (being in possession of arrack containing methyl alcohol) and except the first two years which the Excise Officers took for completing the formalities to launch the prosecution, the rest of the years rolled on due to the delay in Court procedures. If the impugned order of the High Court is to sustain the already protracted criminal proceedings which reached almost final stage in the trial Court alone would stand relegated to square one for commencing all the legal steps over again and if the progress thereafter is at the same pace quite possibly another decade would be consumed for the trial to reach where it has already reached. Is it so inevitable a course to be adopted? 3. It was on 16-11 1990 that one Excise Inspector, in his capacity as such, filed the complaint against the appellants and a few others before a Judicial Magistrate of Second Class alleging certain offences which were exclusively triable by the Court of Session and on 26-5-1990 the said Magistrate, without examining any witness, committed the case to the Sessions Court. In the li....
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....sent appellants were dissatisfied with the aforesaid reference order and hence they challenged that order by filing a revision before the High Court. By the impugned order a Division Bench of the High Court disposed of the aforementioned reference and the revision petition. 6. The first point is that the stage had passed long ago for the accused of the prosecution to have raised objections that the committal order was vitiated due to non-examination of witnesses before the magistrate issued process to the accused. Even if there was any such omission before process was issued the accused cannot raise it as an objection for the first time at the fag end of a long drawn trial in the Sessions Court. Section 465 of the Code is extracted below: 465. Finding or sentence when reversible by reason of error, omission or irregularity.- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during ....
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....elieving that such omission had occasioned failure of justice. This is because no evidence of any witness would be used in the trial Court unless such witness was examined in the trial Court and the accused is afforded reasonable opportunity to cross-examine him. 10. Now I will proceed to the next question whether the magistrate should have examined all the witnesses of the prosecution before the case was committed to the Court of Session, or before process was issued to the accused. 11. Power of taking cognizance of offence and the conditions for the same are dealt with in Chapter XIV of the Code of which Section 190 specifies the power of a magistrate to take cognizance of the offence. Three different sources are indicated therein of which what is material in this case is taking cognizance "upon receiving a complaint of facts which constitute such offence." Taking cognizance of the offence involves the exercise of deciding whether process should be issued to the accused. Section 204 of the Code envisages "issue of process." It only means issuing either summons or warrant for the purpose of bringing the accused before such magistrate. The provisions says that....
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....ld not have been difficult if we go by the placement of the said proviso alone, as it can then be said that inquiry is not a must. If the said proviso was placed in Section 200 of the Code even a doubt that the legislative idea is to have all witnesses examined by the magistrate when the offence complained of is triable exclusively by the Court of Session would have been displaced. Nonetheless the placement of the proviso is not the only criteria in discerning the legislative intent. Indications can be gathered from other connected provisions for taking a contrary view. 15. Chapter XVI of the Code contains provisions for commencement of proceedings before magistrate. Section 204, which is already referred to, enjoins on the magistrate to issue process if the magistrate forms the opinion that there is "sufficient ground for proceeding". When the offence is triable by a Court of Session the task of the magistrate cannot be restricted to considering whether process should be issued. There must be sufficient ground for proceeding. Proceeding to what? In this context Section 208 of the Code is important and hence it is extracted below: 208. Supply of copies of statements an....
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....erstood 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 visualized in which the complainant is the only eye witness or in which all the eye witnesses 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 the 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. 18. II is pertinent to consider yet another aspect. It is of importance from practical point of view also. Section 209 of the Code enjoins on the magistrate to commit the case to the Court of Session after complying with the provisions in Section 208 of the Code. Once the case is committed it proce....
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....2. While the situation remained thus as provided in Section 207A of the old Code the Law Commission submitted its 41st Report recommending various changes in the Code among which it was recommended that inquiries in committal Courts should be dispensed with. After giving elaborate reasons for such abolition the Law Commission made the following recommendations also: We are recommending in a subsequent chapter (referred to earlier) the abolition of commitment inquiries. This necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Sessions. We recommend that the Magistrate who takes cognizance of such offence on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. Further, in such cases the Magistrate should not direct an investigation by a police officer or other person. For this purpose, we propose two amendments of Section 202 in the form of another proviso to Sub-section (1) and a proviso to Sub-section (2). 23. The recommendations so made by the Law Commission have been virtu....
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....ee with my learned brother that the impugned order by the High Court is to be set aside and the Sessions Judge be directed to dispose of the case on merits in accordance with law. M.B. Shah, J. 28. Leave granted. 29. These appeals by special leave are filed against the common judgment dated 7-6-1999 passed by the High Court of Kerala in Crl. Reference No. 2 of 1999 and Criminal R.P. No. 1035 of 1998. A Division Bench of the High Court quashed the committal order in Sessions Case No. 39 of 1990 pending before the Sessions Court, Trissur and directed the Magistrate to conduct a fresh enquiry in terms of proviso to Section 202(2) Criminal Procedure Code (for short 'the Code') and thereafter to pass an order of committal to the Sessions Court. 30. The criminal proceedings wherein it is alleged that methyl alcohol was present in the arrack, the sample of which was taken by an Excise Inspector on 26-2-1988 and which are pending since November, 1989 are being unduly delayed on one account or the other including a reference made by the Sessions Judge and the directions now issued by the High Court. The Excise Inspector after completing the enquiry filed a complaint before a Jud....
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....t serve the purpose and object as contemplated under Section 202, Cr. P.C. Hence, accused ought to have been discharged and there should not have been any direction to face a farce of fresh enquiry under Section 202, Cr. P.C. 33. Learned Counsel for the State fairly agreed with the submission of the learned Counsel for the appellants that there was no necessity for holding a fresh enquiry under Section 202, Cr. P.C. and a direction to commit the case to the Sessions Court in view of the fact that Sessions trial was practically already over. The High Court ought to have directed the Sessions Court to hear the arguments and to pass the judgment according to law. According to him the scheme of Section 202(2)CODE OF CRIMINAL PROCEDURE, 1973^, Cr. P.C. clearly reveals that it is the discretion of the Magistrate whether or not to hold the enquiry before committing the case to the Session Court. 34. We agree with the submission of learned Counsel for the appellants that the order passed by the High Court to hold fresh enquiry under Section 202(2) of the Code was unnecessary because (1) under Section 200 read with Section 202, Cr.P.C., it is only at the discretion of Magistrate to decide....
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....o produce all his witnesses and examine them on oath. (3) If an investigation under Sub-section (1) Is made by a person not being a police officer, he shall have for that, investigation fill the powers conferred by this Court on an officer in charged of a police station except the power to arrest without warrant. 36. The aforesaid Section 200 requires a Magistrate taking cognizance of an offence on a complain to examine upon oath the complainant and the witnesses present. If any. The proviso to the said section carves out an exception in cases where a complaint is filed by a public servant acting or purporting to act in the discharge of his official duties or in cases where the Court has made the complaint. In such cases, complainant and witnesses need not be examined. In such cases, if he is satisfied that there is sufficient ground for proceeding, he can straightway issue process. At this stage, the Magistrate has three options: (i) to issue process on the basis of corn-plaint, if he is satisfied that there is sufficient ground for proceeding against the accused (Sec. 204); or (ii) to dismiss the complaint (See. 203); or (iii) to hold an enquiry- (a) by himself, or (....
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....nvestigation is not an indispensable course before issue of process against the accused or dismissal of the complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. 38. In a case, Ranjit Singh v. State of Pepsu (now Punjab) 1959CriLJ1124 , where the Sub Inspector of Police was convicted under Section 193, I.P.C. by First Class Magistrate, it was contended that the procedure adopted by the Magistrate was erroneous because he did not hold an enquiry as required under Sections 200 and 202 of the Code. This Court negatived the said contention and held thus (Para 10): That contention is equally untenable because under Section 200 proviso (aa) it is not necessary for a Magistrate when a complaint is made by a Court to examine the complainant and neither Section 200 nor Section 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against. Further, it is settled law that the inquiry under Section 202....
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....lously as if he were the trial Court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204 if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session. 40. In this view of the matter it is apparent that the High Court erred in holding that there was breach of mandatory provisions of the proviso to Section 202(2) of the Code and the order of committal is vitiated and, therefore, requires to be set-aside. The High Court failed to consider proviso to Section 200 particularly proviso (a) to the said Section and also the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or to dismiss the complaint (....
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....e police. This safeguard must be to take the place of the preliminary inquiry proceedings provided in the old Code and that Sub-section (2) together with the proviso must be read as a proviso to Section 202. When it is so read, the objects underlying in the scheme of Chapter XV can be better served. 42. The Madras High Court in M.G. Filial v. T. Filial 1983 Cri LJ 917, has held that order of committal passed under Section 209 by the Magistrate taking cognizance of an offence under Section 200 and thereafter straightway issuing process under Section 204 is a valid committal order and that cannot be challenged as illegal on the ground that Magistrate has not availed himself of an inquiry under Section 202. However, the Court further held that once the Magistrate decides to follow Section 202 which is an enabling provision, the proviso to Section 202(2) would come into operation, which makes it obligatory for Magistrate to call upon the complainant to produce all his witnesses and examine them on oath; the failure on his part to comply with the statutory directions given under the said proviso would vitiate the further proceedings taken by him. 43. We agree with the conclusion of th....
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....tion 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would lie in consonance with the provision of Section. 208 which inter-alia provides for supply of copy of statements and documents to accused. This would also facilitate the Sessions Court in framing the charge or discharging the accused. In the Sessions triable case, under Section 226 the prosecution has to open its case by describing the charge brought against the accused and stating by what, evidence it proposes to prove the guilt of the accused. On such submission, the Sessions Court is required to consider the record of the case and the documents submitted therewith and, after hearing the submissions of the accused and prosecution in this behalf, to decide whether there is sufficient ground or not for proceeding against the accused. Upon such consideration, if the Court finds that there is no sufficient ground for proceeding against the accused, he shall be discharged as provided under Section 227. In case, where there is sufficient ground, Court is required to frame the charge as provided under Section 228. Hence, for the purpose of framing the charge also the recording of such....
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.... in the administration of justice. Where the non-compliance, the procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Court are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time. 47. Hence, what emerges from the above discussion is: I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present; (b) When the complaint is made in wilting by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses; (c) In such case Court may issue process or dismiss the complaint. II. (a) The Magistrate instead of following the procedure stated above may, if he thinks f....