2000 Supreme(SC) 51

2000(1) Supreme 114
Supreme Court of India
(From Kerala High Court)
K.T. Thomas & M.B. Shah, JJ.
Rosy & Anr. —Appellants
versus
State of Kerala & Ors. —Respondents
Criminal Appeal No. 18-19 of 2000
(Arising out of SLP (Crl.) No. 2460-61 of 1999)
Decided on 10-1-2000
Counsel for the Parties :
For the Appellants : Varghese Kalliath, Sr. Advocate and M.T. George, Advocate.
For the Respondent No. 1 : G. Prakash, Advocate.

Very important points
1. Examination of witnesses on oath by Magistrate under Section 202(2) proviso, of the Cr.P.C. in all Sessions Triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established.
2. A person complaining of irregularity in committal proceedings, under proviso to Section 202(2) Cr.P.C. should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later.

Headnote:(i) Code of Criminal Procedure, 1973—Section 202(2) r/w Section 465—Committal enquiry—Failure to comply with provisions of Section 202(2) must be taken at earliest stage—If a person fails to raise such objection at earliest stage, he is precluded from raising such objection later.

       Per K.T. Thomas, J. :

       Held : The stage had passed long ago for the accused or 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. (Para 6)

       Section 465 of Cr.P.C. when re-read as to apply to this case, would be thus : No order by a court of competent jurisdiction shall be reversed or altered by a revisional court on account of any omission in any proceedings held under this Code unless the court reaches the conclusion that each omission has occasioned a failure of justice. One of the tests to ascertain whether such omission has occasioned failure of justice is incorporated in sub-section (2), i.e. whether objection had been taken at any earlier stage regarding such omission. If no such objection has been taken earlier normally the court cannot permit that party to raise it at the last stage. (Para 7)

       When the accused have chosen not to raise objection on the premise of omission to examine witnesses before process was issued by the magistrate, it must be taken that they had no grievance that such omission had occasioned failure of justice. Even if they had taken such objection after committal of the case to the Sessions Court there was no need to turn the switch board backwards as there is no scope for believing 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. (Para 9)

       Per M.B. Shah :

       A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. (Para 45)

       (ii) Code of Criminal Procedure, 1973—Section 202(2), proviso r/w Section 465—Committal enquiry—Examination of witnesses on oath—When offence sought to be taken cognizance by Magistrate is exclusively triable by Session Court, is it incumbent on Magistrate to conduct on enquiry as enjoined in proviso to Section 202(2) or can he dispense with such enquiry?—Held: Per K.T. Thomas, J. : Proviso incorporated in Section 202(2) is not merely to confer a discretion to Magistrate, but a compelling duty on him to perform in such cases—Magistrate is not obliged to examine witnesses who could not be produced by complainant when asked to produce such witnesses—Per M.B. Shah, J. : Question of complying with proviso to section would arise only in cases where Magistrate before taking cognizance of case decides to hold inquiry and if he decides to take evidence on oath—Compliance of proviso in all Sessions Triable cases is not a must and would not vitiate further trial unless prejudice caused to accused is established.

       Per K.T. Thomas, J. :

       The magistrate taking cognizance of the offence upon a complaint, when such offence is not triable by the Session Court, can adopt either of the three courses : (i) straightway issue the process or (ii) he can postpone the issue of process for holding an inquiry or (iii) he can direct an investigation to be made. If the offence is triable by a Court of Session, it is impermissible for the magistrate to direct an investigation. To see whether in such cases he can straightway issue process to the accused without holding the inquiry, a careful interpretation of sub-section (2) of Section 202 of the Code is called for. It may appear, prima facie, that the question of examining all witnesses would arise only when the magistrate opts to hold an inquiry otherwise not. The crucial issue therefore is, when the offence, sought to be taken cognizance of by the magistrate, is exclusively triable by the Court of Session, is it incumbent on the magistrate to conduct an inquiry as enjoined in the proviso to Section 202(2) of the Code or can he dispense with such inquiry. (Paras 12 and 13)

       Section 204 enjoins 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. Three categories of documents are mentioned in Section 208 the copies of which the magistrate, who proceeds from the stage in Section 204, has to supply to the accused free of cost (in a complaint case involving an offence triable exclusively by a Court of Session). As the words used here are "shall furnish", it is almost a compelling duty on the magistrate to supply the said documents to the accused. How can the magistrate supply such documents? (In the present context the documents referred to in the third category mentioned in clause (iii) are not important.) The first category delineated in clause (i) of Section 208 consists of "statement recorded under Section 200 or Section 202 of all persons examined by the magistrate". It is now important to note that the words "if any" have been used in the second category of documents which is delineated in clause (ii) of Section 208, but those words are absent while delineating the first category. In my view those two words have been thoughtfully avoided by Parliament in clause (1). If a magistrate is to comply with the aforesaid requirements in Section 208 of the Code (which he cannot obviate as the language used in the sub-section is of any indication) what is the manner in which he can do it in 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 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. (Paras 14, 15 and 16)

       It 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 proceeds to the next stage for which the venue is the Court of Session. The trial in the Court of Session is envisaged in Chapter XVIII. It must be borne in mind that in the Session Court a public Prosecutor alone can conduct prosecution, whether the case was instituted on police report or on complaint. Section 226, falling within the aforesaid Chapter, requires the public prosecutor to make the open address to the Session Court. If a case instituted on complaint is committed to the Court of Session without complying with the requirements in clause (I) of Section 208 of the Code how is it possible for the public prosecutor to know in advance what evidence he can adduce to prove the guilt of the accused? If no inquiry under Section 202 is to be conducted a magistrate who decides to proceed only on the averments contained in the complaint filed by a public servant (who is not a witness to the core allegation) and such a case is committed to the Court of Session, its inevitable consequence would be that the Sessions Judge has to axe down the case at the stage of Section 226 itself as the public prosecutor would then be helpless to state "by what evidence he proposes to prove the guilt of the accused". If the offence is of a serious nature or is of public importance the consequence then would be miscarriage of justice. (Paras 17 and 18)

       Thus the proviso incorporated in sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the magistrate, but a compelling duty on him to perform in such cases. The magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the magistrate to issue such summons, for, there is nothing in the Code which prevents the magistrate from issuing such summons to the witnesses. If the magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission the court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code. (Paras 24 and 25)

       Per M.B. Shah, J. :

       Section 200 requires a Magistrate taking congnizance of an offence on a complaint 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. It is only if the Magistrate decides to hold the inquiry the proviso to sub-section (2) of Section 202 would come into operation. If the offence is triable exclusively by the Court of Sessions, the Magistrate himself has to hold the inquiry and no direction for investigation by police shall then be made. Inquiry can be held for recording evidence on oath and if thinks fit, Sub-section (2) of Section 202 gives discretion to the Magistrate to record evidence of witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and and examine them on oath. Then the next stage after holding inquiry is passing of appropriate order of either dismissal of the complaint or issue of process. That is provided under Sections 203 and 204 of the Code. Hence, on receipt of the complaint, the Magistrate by following the procedure prescribed under Section 200 may issue process against the accused or dismiss the complaint. Section 203 specifically provides that after considering the statement on oath, if any, of the complainant and witnesses and the result of the inquiry or investigation, if any under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. For dismissal of complaint, he is required to briefly record his reasons for so doing. In other cases, he has to issue process i.e. either summons or warrants as the case may be as provided under Section 204. However, no summons or warrant is to be issued against the accused until a list of the prosecution witnesses has been filed. Therefore, the question of complying with the proviso to sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation 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. (Para 36)

       It is settled law that the inquiry under Section 202 is of limited nature. Firstly, to find out whether there is prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 Cr.P.C. accused has no right to intervene and that it is the duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. (Para 37)

       Section 202 is an enabling provision and it is a discretion of the Magistrate depending upon the facts of each case, whether to issue process straightway or to hold the enquiry. However, in case where enquiry is held, failure to comply with the statutory direction to examine all the witnesses would not vitiate further proceeding in all cases for the reason that (a) in a complaint filed by a Public servant acting or purporting to act in discharge of his official duties, the question of holding inquiry may not arise, (b) whether to hold inquiry or not is discretionary jurisdiction of the Magistrate, (c) even if he decided to hold inquiry it is his further discretion to examine the witnesses on oath. It he decides to examine witnesses on oath in a case triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath, (d) it would also depend upon facts of each case depending upon the prejudice caused to the accused by non-compliance of the said proviso (Sec. 465), and (e) that the objection with regard to non-compliance of proviso should be taken at the earlier stage when the charge is framed by the Sessions Court. (Para 42)

       At initial stage, if objection is raised and it is found by the Sessions Court that by non-holding of inquiry, prejudice is caused to the accused, he may direct the Magistrate to follow the procedure prescribed under the proviso. It is no doubt true that by the use of the word ‘shall’, it appears that language used in the proviso is of mandatory nature. At the same time, it is a procedural law and it is to be read in context of Section 200 which enables the Magistrate to issue process without holding any inquiry and that inquiry under Section 202 is itself discretionary one-giving option to examine or not to examine witnesses on oath. Hence, proviso to the said sub-section is required to be read accordingly though couched in mandatory term by using the word ‘shall’. Normally, the procedure prescribed therein should be followed, but non-observance of the said procedure may not vitiate further proceedings in all cases. In a case where a complaint is filed, not by the public servant, and where the offence is exclusively triable by the Court of Sessions, the Magistrate should follow the proviso to sub-section (ii) of Section 202 and call upon the complainant to produce all his witnesses and examine them on oath. This would be 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 evidence is necessary. It also facilitates the accused to know allegation made against him as well as evidence in support thereof. However, in a case where complaint is filed by a public servant after holding inquiry and recording the statements, question of recording of such evidence may not arise. Hence, compliance of proviso by the Magistrate in all Sessions triable cases is not a must and would not vitiate the further trial unless prejudice caused to the accused is established. (Para 43)

       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 writing 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 fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him.

       (b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204(2) before issuance of the process.

       (c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. (Para 45)