The discretionary power of the Magistrate to issue process under S.204 and the peremptory nature of the proviso to S.202(2) in case of self-inquiry by the Magistrate.

1. Petition under S.482 of the Criminal Procedure Code, 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 No. 15, to quashing the summons issued to him under S.204 of the Code.

2. What is submitted is that the learned Magistrate erred is proceeding under 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 S.202(2).

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

4. Janaki Amma J. held in Kochu Mohammed v. State of Kerala 1977 Crl. L. J. 1867:1977 KLT. 508 that if the provisions of S.200 were complied with, non-compliance with the provisions of the proviso to S.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.

5. By now there are several other reported decisions also on this matter. They are: The State v. Kastu Behera (Orissa) 1975 Crl L. J. 1178, 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 Lekshmana 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 v. State of Kerala 1977 Crl. L. J. 1867. The other decisions either take a different view or contain observations to the contrary.

6. The reasons given by Petitioner's counsel for the view that a Magistrate after examination under S.200 of the complainant and the witnesses present, if any, cannot straightaway proceed under 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 under S.203, has necessarily to commit the case to the Court of Session under S.209. If commitment is made of such a case the accused has to be furnished under S.208 (i) with copies of the statements recorded under S.200 or S.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 S 202 (2) proviso of the Code also.

7. Now, the provision in S.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 under S.200 or S.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 under S.200 or S.202 as the case may be. S.208 (i) does not contemplate an accused being furnished with copies of statements recorded under S.202 when the commitment is made based on the statements taken under S.200 alone.

8. 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, under S.200 from straightaway issuing process under S.204. The question then is whether the proviso to S.202 (2) stands in the way of doing that. That proviso is one to S.202 (2). S.202 (2) is specific that what is contained therein is applicable only to the inquiry referred to in S.202 (1). In S