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CALCUTTA HIGH COURT
P. K. CHANDA, SUDHAMAY BASU, JJ.
KAMAL KRISHNA DE
VERSUS
STATE AND ANOTHER
Criminal Revn. No.1350 of 1974,
Decided On : 18 -8 -1976.
CRIMINAL PROCEDURE CODE - SECTION 202(2) PROVISO - COMMITMENT TO COURT OF SESSION - EXAMINATION OF WITNESSES - MANDATORY PROVISION - NON-COMPLIANCE - REVISION - INHERENT POWER OF HIGH COURT - SECTION 482 CR.P.C. - SECTION 208 CR.P.C. - SUPPLY OF COPIES OF STATEMENTS OF WITNESSES - DIRECTORY PROVISION - NON-COMPLIANCE - EFFECT - SECTION 209 CR.P.C. - COMMITMENT TO COURT OF SESSION - DISCRETION OF MAGISTRATE - SCOPE.
Fact of the Case:
The petitioners were accused of offences under Sections 147/323/325/307 I.P.C. The complainant filed a petition of complaint in the Court of the Sub-divisional Judicial Magistrate, Ghatal. The Magistrate examined the complainant and two witnesses and issued warrants of arrest against the petitioners. The petitioners were released on bail. On 22-11-1974, the Magistrate committed the case to the Court of Sessions, Midnapore.
Finding of the Court:
1. The transfer of the case from one Magistrate to another was not illegal as the successor-in-office of the Magistrate who took cognizance of the offence can transfer the case. 2. Non-compliance with the provisions of Section 208 Cr.P.C. is not fatal and does not vitiate the order of commitment. The word 'shall' in Section 208 is directory and not mandatory. 3. The Magistrate is not required to apply his mind before passing an order of commitment. The words 'it appears to the Magistrate' in Section 209 Cr.P.C. do not connote satisfaction of the learned Magistrate to enable the superior court to judge whether there was sufficient ground for satisfaction. 4. Non-compliance with the provisions of the proviso to Section 202(2) Cr.P.C. is a serious illegality and renders the subsequent proceedings illegal. The Magistrate is bound to examine on oath all the witnesses as contemplated by the proviso to Section 202(2) Cr.P.C. 5. The High Court has power to set aside the order of commitment under Section 482 Cr.P.C. in exceptional cases when the mandatory provisions of the statute have been violated and the accused has been deprived of certain statutory rights.
Issues: 1. Whether the transfer of the case from one Magistrate to another was illegal? 2. Whether non-compliance with the provisions of Section 208 Cr.P.C. is fatal and vitiates the order of commitment? 3. Whether the Magistrate is required to apply his mind before passing an order of commitment? 4. Whether non-compliance with the provisions of the proviso to Section 202(2) Cr.P.C. is a serious illegality and renders the subsequent proceedings illegal? 5. Whether the High Court has power to set aside the order of commitment under Section 482 Cr.P.C. in exceptional cases?
Ratio Decidendi: 1. The transfer of the case from one Magistrate to another was not illegal as the successor-in-office of the Magistrate who took cognizance of the offence can transfer the case. 2. Non-compliance with the provisions of Section 208 Cr.P.C. is not fatal and does not vitiate the order of commitment. The word 'shall' in Section 208 is directory and not mandatory. 3. The Magistrate is not required to apply his mind before passing an order of commitment. The words 'it appears to the Magistrate' in Section 209 Cr.P.C. do not connote satisfaction of the learned Magistrate to enable the superior court to judge whether there was sufficient ground for satisfaction. 4. Non-compliance with the provisions of the proviso to Section 202(2) Cr.P.C. is a serious illegality and renders the subsequent proceedings illegal. The Magistrate is bound to examine on oath all the witnesses as contemplated by the proviso to Section 202(2) Cr.P.C. 5. The High Court has power to set aside the order of commitment under Section 482 Cr.P.C. in exceptional cases when the mandatory provisions of the statute have been violated and the accused has been deprived of certain statutory rights.
Final Decision: The Rule was made absolute. The order of the learned Magistrate issuing processes against the petitioners and the subsequent orders including the order of commitment were set aside. The learned Magistrate was directed to begin from the stage prior to the order issuing processes and proceed in accordance with law.
Chanda, J.:- This revisional application has been filed for quashing of the proceeding being Case No 312C of 1974 under Ss.147/323/325/307 I.P. Code including the orders dated September 24, 1974, October 17, 1974 and November 22, 1974.
2. A petition of complaint was filed by O.P. No.2 Biswanath Santra in the Court of the Sub-divisional Judicial Magistrate, Ghatal in the district of Midnapore on 23-9-74. It appears that B.K. Mitra, Sub-divisional Judicial Magistrate, Ghatal was absent on that date and R.K. Ghosh a Judicial Magistrate was dealing with his files. Apropos of the filing of the complaint the complainant and two witnesses were examined and on the prayer of the complainant time to examine further witnesses was allowed till 24-9-74. In the petition of complaint it was stated that besides 9 witnesses named therein, there were other witnesses. On 24-9-74 three other witnesses were examined. After examination of three witnesses the learned Magistrate R.K. Ghosh issued warrant of arrest against all the petitioners before us under Ss.147/323/ 325/307 I.P.C. and fixed 17-10-74 for return. On 8-10-74 two petitioners Shib Narayan and Ajit appeared before the Sub-divisional Judicial Magistrate B.K. Mitra who enlarged them on bail. On the next date three other petitioners, Kamal, Narayan and Monoranjan appeared before the said Sub-divisional Magistrate and they were released on bail. It appears from the order dated 9-10-74 that a petition was filed by the "prosecution" and that was ordered to be put up on 17-10-74 for hearing. On 17-10-74 the complainant and the accused were present. The learned Sub-divisional Judicial Magistrate passed the following order:
"To my file.
To 22-11-74 for committal.
Order
Petition of the defence would be heard on the date fixed. Accused as before.
Later:
Record received by transfer. Five accused on bail are present.
They may find bail of Rs.1,000/- each with two sureties of like amount i.e. to J/C.
To 22-11-74 for committal order, Accused as before.
Bail bonds are furnished and they are accepted."
Then on 22-11-74 the Sub-divisional Judicial Magistrate passed the following order:
"Accused (5) on bail present,
Compt. present.
In this case, summons have been issued under Ss.147/323/325/307 I.P.C. Offence under S.307 I.P.C. is exclusively triable by the Ld. Sessions Court. Hence, the accused persons are committed to the Court of Sessions, Midnapore under Section 209 Cr. P.C. for facing trial."
3. The grounds taken in the revisional application are (1) that R.K. Ghosh having taken cognizance of the alleged offences on 23-9-74, the transfer of the case to his own file by B.K. Mitra was illegal and it vitiates the entire proceeding following the illegal order of transfer; (2) that there has been non-compliance of the provisions of S.208 of Criminal Procedure Code; (3) that the committal Court is not to approach the case in a mechanical manner and the learned Magistrate erred in law in not recording a finding that from materials on record it appeared to him that the offences complained of are exclusively triable by the Court of Session and absence of such finding vitiates the order of commitment. In course of hearing of this Rule, Mr. N.C. Banerjee appearing on behalf of the petitioners has added another ground (4) to the effect that there has been non-compliance with the provisions of the proviso to S. 202 (2) of the Code of Criminal Procedure (1974).
4. As regards the first contention raised on behalf of the petitioners, we find no substance. We do not know whether Sri R.K. Ghosh was Sub-divisional Judicial Magistrate on 23-9-74 and 24-9-74. But he was certainly the presiding officer of the Court of the Sub-divisional Judicial Magistrate and as such was his successor-in-office. He took cognizance of the offence and issued processes. There is no doubt that Sri B.K. Mitra was Sub-divisional Judicial Magistrate on 9-10-74, 17-10-74, and 22-11-74. Section 35 (1) of the Criminal Procedure Code, 1973 runs thus:
"(1)
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