1. Cri. M.P No. 2841 of 1974 has been filed by the petitioners, namely, accused 1 to 4, 7, 9, 10 to 14, 17, 18, 20, for transfer of S.C No. 67 of 1974 from the file of Assistant Sessions Judge, Ramanathapuram at Devakottai to the file of any other court of competent jurisdiction within the District or at Madurai. Cr. M.P No. 3130 of 1974 has been filed to quash the order of the committal made in P.R.C No. 3 of 1974 on the file of the Court of Judicial Second Class Magistrate, Karaikudi.

2. I shall first take up Cr. M.P No. 3130 of 1974. This petition has been filed by the aforesaid accused to quash the committal proceedings on the main ground that the Judicial Second Class Magistrate, Karaikudi, has not followed the procedure laid down under new Code of Criminal Procedure (hereinafter called ‘the Code’) in cases of private complaints and, therefore, the committal was illegal. The facts of the case are these:

One Muthana Kone, the second respondent herein, filed a private complaint before the District Magistrate, Devakottai on 5-2-1974 alleging that the petitioners herein and six others trespassed into his land at Sattanendal Patti Village on 30-1-1974 and unlawfully cut and removed his paddy crops therein and committed offences falling under Sections 147, 148, 447, 379 and 506 (2), Criminal Procedure Code. The learned District Magistrate took the case on file under Section 395 read with Section 398, Indian Penal Code after recording the sworn statement of the complainant and transferred the case to the file of the Judicial Second Class Magistrate, Karaikudi.

3. The learned Judicial Second Class Magistrate, Karaikudi took the case on file as P.R.C No. 3 of 1974 and issued summons to the petitioners and the other accused and on the appearance of all the accused, a copy of the complaint was furnished to them and the case was adjourned for the examination erf the prosecution witnesses to 14-3-1974 after recording the undertaking of the second respondent-complainant to bring the witnesses on that date. The case was again adjourned to 20-3-1974 for the examination of the prosecution witnesses on the undertaking given by the second respondent-complainant to produce the witnesses. Again from 20-3-1974, the case was adjourned to 1-4-1974 for examination of the prosecution witnesses. The case was then adjourned to 10-4-1974 and on that date when the petitioners and the other accused were present, the Magistrate passed orders stating that the complaint disclosed offences under Sections 395 and 395 read with 397, Indian Penal Code which are triable by Court of Sessions, and committed them to take their trial in the Court of Session of Ramanathapuram Division at Madurai under Section 209, Criminal Procedure Code.

4. Though the case was taken on file by both the District Magistrate and the Judicial Second Class Magistrate before the Code came into force, when the committal order was passed which was an 10-4-1974, the Code come into force, which was on 1-4-1974, This order was presumably made by the learned Magistrate as he understood that the new provisions of the Code had given discretion to him to commit the accused without examining the witnesses even on a private complaint.

5. It is urged by the learned counsel for the petitioners Sri C.K Venkatanarasimhan that the learned Magistrate ought to have examined the witnesses and furnished copies of the statements and other documents on which the second-respondent-complainant relied before the order of committal was passed under Section 209 Cr.P.C, and that the Magistrate had erred in not following the mandatory provisions of Sections 202 and 208, Cri.P.C It is, therefore, necessary to consider the provisions of the Code in respect of the order of committal relating to private complaints.

6. Chapter XV of the Code which contains four Sections namely, Sec tions 200 to 203, deals with complaints to Magistrate.

7. Under S. 200 of the Code, 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 by the complainant and the witnesses, and also by the magistrate, excepting in cases where the complainant is a public servant and the complaint is in relation to the discharge of his official duties and where the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

9. Under Section 201 if the Magistrate is not competent to take cognizance of the offence he shall return the complaint, if it is in writing, for presentation to the proper court with an endorsement to that effect and if the complaint is not in writing direct the complainant to the proper court.

8. Now we come to Section 202 of the Code which is relevant for our discussion. It reads as follows:

“Postponement of issue of process:—

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer oar by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made—

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to 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 all the powers conferred by this Code on an officer in-charge of a Police Station except the power to arrest without warrant.”

9. Thus, we see that under Cl. (1) of Section 202, the Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance, may postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer for the purpose of deciding whether or not there is sufficient ground for proceeding. The Proviso to Clause (1) clearly states that no direction for investigation as provided under that clause shall be made where it appears to the Magistarate that the offence complained of is triable exclusively by the Court of Session. We are not concerned with Proviso (b) to Clause (1) of Section 202 in the instant case. Clause (2) of Section 202 gives a discretion to the Magistrate to take evidence of witnesses on oath before the issue of process for the purpose of finding out whether there was any case for enquiry or trial. The Proviso to clause (2) is very important as it lays down a special procedure in respect of the offences complained of, is triable exclusively by the Court of Session. If it is an offence other than the offences triable exclusively by the Court of Session, discretion is given to the concerned Magistrate under Clause (2) to take evidence of witnesses on oath, if he (Magistrate) thinks fit. But the Proviso does not give such a discretion to the Magistrate in respect of an offence triable exclusively by the Court of Session, and in such cases, the Proviso makes it mandatory by the following words:

“he (the concerned Magistrate) shall call upon the complainant to produce all his witnesses and examine them on oath”. Thus, discretion is given to the concerned Magistrate to examine witnesses on oath in respect of offences. But once it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall require the complainant to produce all his witnesses and examine them on oath.

10. Now. we come to Section 203 of the Code. Under this Section, if once the Magistrate has recorded evidence of the witnesses either on his discretion under Clause (2) or has recorded the evidence of all the witnesses produced by the complainant as provided under the Proviso in respect of offences triable exclusively by the Court of Session and he (Magistrate) is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint after briefly recording the reasons for so doing. This would show that in private complaints, the Magistrate, even in cases triable exclusively by the Court of Session, after examining the witnesses as per the Proviso to Cl. (2), if he is of opinion that there are no sufficient grounds for proceeding, shall dismiss the complaint. The disposal of the complaint under Section 203 of the Code applies to even the offences complained of, which appear to the Magistrate are triable exclusively by the Court of Session, unlike a case instituted on a police report. Under the Code, a. discretion is given to the Magistrate to dismiss the complaint even if the complaint disclosed offences triable exclusively by a Court of Session if such Magistrate is of opinion that there was no sufficient ground for committal.

11. We will again go back to the Proviso to Clause (2) of Section 202. I have already noted that under this Proviso, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on Oath if it appears to him that the offence complained of is triable exclusively by the Court of Session. It is mandatory and compulsory on the part of the Magistrate to. examine all the witnesses produced by the complainant. There may be cases where the complainant has not produced the witnesses and therefore, in such cases, the examination of such witnesses on oath does not arise.

12. The next stage will arise when the complaint is not dismissed under Section 203, Criminal Procedure Code, and where it appears that the offences alleged therein are exclusively triable by the Court of Session.

13. Chapter XVI of the Code deals with commencement of proceedings before Magistrate (Ss. 204 to 210). This Chapter deals with commencement of proceedings before the Magistrate in respect of the offences triable by such Magistrate including petty offences under, Section 206 of the Code and the procedure to be followed in respect of committal on a police report (Section 207) and the procedure to be followed in other cases triable by a Court of Session, other than instituted on a police report. (Section 208)

14. Under Section 207, the Magistrate shall without delay furnish to the accused, free of cost, in a case where the proceeding has been instituted on a police report, a copy of each of the following:

(i) the police report;

(ii) the first information report recorded under Section 154.

(iii) the statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173;

(iv) the confessions and statements, if any, recorded under Section 164; and;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of Section 173.

15. The object of furnishing copies to the accused, in cases instituted on police report, is to facilitate the accused to prepare his defence in advance by knowing what are the materials by which the prosecution seeks to prove its case against him. In respect of a private complaint where the offences appear to be exclusively triable by a Court of Session, the documents mentioned in Section 207 will not be available to the accused as all those documents come into existence during the course of investigation by the police. In this background, we have to consider the scope and object of Section 208 of the Code which runs as follows:

“Supply of copies of statements and documents to accused in other cases triable by Court of Session — Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:—

(i) the statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate.

(ii) the statements and confession, if any, recorded under Section 161 or Section 164.

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely.

Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to. inspect it either personally or through pleader in Court.”

16. This section provides that where in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused free of cost, a copy of each of (i) the statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under Section 161 or 164; and (iii) any documents produced before the Magistrate on which the prosecution proposes to rely.

17. A reading of the proviso to Clause (2) of Section 202 together with Section 208 (i) would clearly show that on a complaint before the Magistrate where it appears that the offence committed is triable exclusively by a Court of Session, the statements of all the witnesses produced by the complainant must be recorded and the copies of such statements of all the witnesses so recorded shall be furnished to the accused free of cost. Similarly a copy of any statement recorded by the Magistrate under Section 200 of the Code shall also be furnished to the accused. Besides the copies of the statements of the witnesses and the statement recorded under Section 200, this section also provides for the furnishing of the copies of the statements and confessions, if any, recorded under Sec. 161 or S. 164 and any other documents produced before the Magistrate, on which the prosecution proposes to rely. Thus, it is seen that the recording of the statements of witnesses on oath as provided under the Proviso to Clause (2) of Section 202 and the furnishing of copies of such statements as provided under Section 208 (i) are mandatory. In cases instituted on a police report, the accused will have the benefit of obtaining the copies of the statements of witnesses recorded by the police. In cases instituted other than on a police report, the Legislature in its wisdom has thought of providing the same facility and benefit to the accused and, therefore, the examination of the witnesses by the Magistrate in a case exclusively triable by a Court of Session, was made obligatory, so that the accused may have the copies of such statements and other documents, if any, mentioned in Clauses (ii) and (iii) of Section 208 furnished to him and have the benefit of preparing his defence as an accused in a police case will have.

18. The Magistrate after having furnished copies as required under Sections 207 and 208, as the case may be, shall commit the accused to the Court of Session under Section 209.

19. In the instant case, the Magistrate has not examined any witness as required under the Proviso to Clause (2) of Section 202 of the Code as he (Magistrate) thought that this was a case instituted before the Code came into force and it was not necessary for him to follow the provisions of the Code and, therefore, without following the provisions, merely committed the accused to Sessions as is done in cases instituted on a police report.

20. The question that arises now is whether the Magistrate was right in having ignored to follow the procedure provided under the new Code on the ground that the complaint was filed earlier to the Code coming into force. In other words, he seems to be of the view that he has to continue from the stage at which the case stood on the day when the Code came into force. It is, therefore, necessary to consider the scope of Section 484 of the Code which deals with repeal and savings. Section 484 runs thus:

“Repeal and Savings:—

(1) The Code of Criminal Procedure, 1898, is hereby repealed.

(2) Notwithstanding such repeals—

(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement (hereinafter referred to as the Old Code), as if this Code had not come into force. Provided that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

………………………………”

21. Clauses (2) (b) and (2) (c) are not relevant for our discussion. This Section generally exempts the application of the provisions of the Code in all appeals, applications, trials, inquiries or investigations pending and provides that such appeals, applications, trials, inquiries or investigations shall be disposed of, continued, held or made, as the case may be, in accordance with the proviso of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, as if this Code had not come into force. But the Proviso makes it clear that every inquiry under Chapter XVIII of the Old Code, which was pending at the commencement of this Code shall be dealt with and disposed of in accordance with the provisions of this Code. Chapter XVIII of the old Code deals with inquiry into cases triable by the Court of Session or High Court.

22. The complaint in the instant case was presented to the District Magistrate who after consideration transferred the same to the Magistrate as it appeared to him that the complaint disclosed offences triable exclusively by the Court of Session. The Judicial Second Class Magistrate, on receiving the complaint by transfer, in accordance with the provisions of Chapter XVIII of the Old Code, took the complaint on file and adjourned the case for the examination of the prosecution witnesses. As the new Code came into force on 1-4-1974, he did not follow the procedure under the Old Code — in my opinion, rightly — as the Proviso to Section 484(2)(a) has dearly stated that every inquiry under Chapter XVIII of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code. But, however, the Magistrate has fallen into an error in not following the provisions of the new Code. The Proviso clearly states that at whatever stage the inquiry was pending at the commencement of the Code under Chapter XVIII, it must be dealt with and disposed of as if such inquiry commenced after the new Code came into force. In other words, if once the new Code is made to apply to any proceeding, such proceeding must be dealt with irrespective of the stage of such proceeding as if such proceeding was instituted after the new Code came into force, and deal and dispose it of under the provisions of the new Code. If the proviso is interpreted otherwise, it will lead to anomaly. If it is construed that the inquiry under the old Code will be valid upto the stage till the new Code came into force and that thereafter the new Code will apply, it would mean that in the same inquiry, both the old Code and the new Code apply at two different stages. This cannot be the object of the Legislature. Either the old Code will apply in toto as provided in cl. (2) of S. 484 or the new Code will apply in toto in respect of Chapter XVIII as provided under the Proviso to Clause (2) (a) of Section 484. There cannot be any via media. I am therefore, of the view that the Judicial Second Class Magistrate must have followed the procedure provided under the new Code, which I have discussed fully in the paragraphs supra, before taking further action.

23. An unreported decision of Paul, J., in Cr.M.P No. 2478 of 1974 (Mad) (S.J Abdulla v. State by Dy. Commercial Tax Officer, Sriperumbudur) was brought to my notice. The learned Judge has clearly found in the following terms while interpreting the scope of the Proviso to Section 484(2)(a):

“Irrespective of the stage which the Committal enquiry reached, the committing Magistrate must stop further enquiry under the old Code and proceed in accordance with the provisions of the new Code.”

24. I agree with this observation, but with the modification that the new Code will Apply in toto and that the enquiry under Chapter XVIII of the old Code, pending at the commencement of the new Code is completely wiped out and the provisions of the new Code will apply as if the enquiry started after the new Code came into force.

25. In the result, the committal proceeding are quashed and Cr. M.P No. 3110 of 1974 is allowed. In view of the orders on this petition, no further orders are necessary in the petition for transfer of S. C. No. 67 of 1974 namely, Cr. M.P No. 2841 of 1974. Committal proceedings quashed.