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AMICUS AI
Citation Codes
Equivalent Citations
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Case Number
Attorney(S)
  • For the Appellant: State Prosecutor
Judges
  • Kumari P. Janaki Amma, J.
Acts
  • Ss. 190 and 200. Section 190(a)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: State Prosecutor
Judges
  • Kumari P. Janaki Amma, J.
Acts
  • Ss. 190 and 200. Section 190(a)
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

Accused Nos. 1 to 3 (the petitioners) are accused in a case initiated on a private complaint presented to the Judicial Second Class Magistrate, Cochin. The complaint was filed on 19-4-1976 at 5:15 P.M. and included a schedule of witnesses. The Magistrate directed the complainant to appear and produce the scheduled witnesses at 11 A.M. on 20-4-1976. On 20-4-1976 the sworn statement of the complainant was recorded; no witnesses were produced on that date.

The Magistrate registered the matter as P.E. 7 of 1976, issued summons to the accused and posted the case to 11-5-1976. On an application by the accused the case was adjourned to 25-5-1976, when copies of documents were furnished to the accused. The case was then adjourned to 28-5-1976 for hearing and further steps. On 28-5-1976 counsel for the complainant and accused were heard. Because the offences were exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session. The Assistant Sessions Judge, Cochin framed charges under Section 450 read with Section 34 of the Indian Penal Code and Section 364 read with Sections 511 and 34 of the IPC.

The petitioners filed the present petition under Section 482 of the IPC seeking to quash the Magistrate's order of committal on the ground that mandatory pre-commitment procedures (specifically Sections 202 and 208 of the Criminal Procedure Code) were not followed.

Legal Issues Presented

  1. Whether, where offences are exclusively triable by the Court of Session, the Magistrate was obliged under the proviso to Section 202(2) Cr. P.C. to call upon the complainant to produce all witnesses and to examine them on oath before committing the accused to trial.
  2. Whether failure to follow the procedures in Sections 202 and 208 (i.e., omission to examine witnesses and furnish copies of statements) renders the Magistrate's order of committal illegal and therefore liable to be quashed under Section 482 IPC.

Arguments of the Parties

Petitioners' Arguments

  • The committal order is illegal because the Magistrate did not follow the mandatory provisions of Sections 202 and 208 of the Criminal Procedure Code.
  • Having directed the complainant to produce witnesses, the Magistrate should have insisted on their examination; the omission to examine should have led to dismissal of the complaint or invalidation of the committal.
  • The proviso to Section 202(2) Cr. P.C. establishes a special procedure for offences triable exclusively by a Court of Session, and committing in violation of that proviso is unlawful. Reliance was placed on Paranjothi Udyar v. State (1976 Cri LJ 598 (Mad)).

The opinion does not contain a detailed account of the respondent's counter-arguments in the record provided.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Paranjothi Udyar v. State (1976 Cri LJ 598) (Mad) Held that where a complaint relates to an offence exclusively triable by a Court of Session, the Magistrate must examine the complainant's witnesses under the proviso to S.202(2); non-compliance may render committal invalid. The court reviewed this decision but declined to follow its expansive interpretation. The opinion explains that Paranjothi Udyar emphasises the accused's benefit of obtaining witness statements, but the present court found difficulty in reading S.202(2) as obligatory in all cases and distinguished it on the ground that the proviso applies only when the Magistrate conducts an inquiry under S.202(1).
Nagawwa v. Veeranna ((1976) 3 SCC 736 : AIR 1976 SC 1947) : (1976 Cri LJ 1533) Stated that in proceedings under S.202 the accused has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. The court relied on this principle to support the view that omission to examine witnesses under S.202 does not give the accused a right to challenge committal as irregular or illegal; the absence of pre-commitment examination does not automatically vitiate proceedings.

Court's Reasoning and Analysis

The court began by extracting and analysing Section 202 of the Criminal Procedure Code, including the proviso to subsection (2). It placed this provision in context with Sections 190 and 200 Cr. P.C. and related provisions (S.208 and S.209), proceeding step-by-step as follows:

  1. Statutory framework:
    • S.190(a) permits a court to take cognizance of an offence on receiving a complaint.
    • S.200 directs that the Magistrate taking cognizance on complaint should examine on oath the complainant and any witnesses present.
    • S.202(1) enables the Magistrate, in his discretion, to postpone the issue of process and either inquire himself or direct an investigation; but it is discretionary ("if he thinks fit").
    • S.202(2) begins with the qualifying phrase "In an inquiry under sub-sec. (1) the Magistrate may, if he thinks fit, take evidence of witnesses" and contains the proviso that if the offence is triable exclusively by the Court of Session, the Magistrate "shall call upon the complainant to produce all his witnesses and examine them on oath."
  2. Interpretation of the proviso:
    • The court reasoned that the words "in an inquiry under sub-sec. (1)" indicate that the mandatory duty in the proviso to call and examine witnesses arises only where the Magistrate actually decides to conduct an inquiry under S.202(1).
    • If the Magistrate does not exercise his discretion to postpone issue of process and conduct an inquiry, then the prerequisites of S.202(2) and its proviso do not come into play; thus examination of witnesses is not obligatory in every pre-commitment situation.
  3. Relation to S.208 and S.209:
    • S.208 (like S.207) requires furnishing copies of statements recorded under S.200 or S.202 only where such statements have been recorded by the Magistrate. The obligation to furnish copies follows the recording of evidence.
    • S.209 (commitment) applies a common procedure for cases instituted on police report or otherwise and does not make pre-commitment examination obligatory in all cases.
  4. Practical considerations and precedent:
    • The court acknowledged the practical disadvantage to an accused in a private complaint if witnesses are not examined pre-commitment (unlike a police investigation where statements are available). However, the court held that this practical hardship does not render the proceedings illegal or irregular.
    • The court cited Nagawwa v. Veeranna to emphasize that in S.202 proceedings the accused has no locus to be heard on whether process should issue.
  5. Application to the facts:
    • The direction to the complainant to produce witnesses in this matter was given on 19-4-1976 before the Magistrate had recorded the complainant's sworn statement and before the complaint was admitted to file.
    • The court distinguished the stage at which witnesses were to be produced: Chapter XV contemplates evidence-taking both at cognizance (S.200) and at a post-cognizance stage (S.202). It is not necessary to examine witnesses named in the complaint merely to take cognizance under S.200.
    • Because the Magistrate, after recording the sworn statement of the complainant, did not decide to postpone issue of process and conduct an inquiry under S.202(1), the proviso to S.202(2) did not become applicable. Therefore, the omission to examine the witnesses did not make the committal order illegal.

On this reasoning the court concluded that examination of witnesses is required only where the Magistrate exercises the specific discretion to conduct an inquiry under S.202(1); absent such an inquiry the proviso and the attendant obligations do not apply.

Holding and Implications

Holding: Petition dismissed.

Implications:

  • Direct effect on the parties: The Magistrate's committal order stands and is not quashed; the proceedings before the Court of Session continue.
  • Broader legal implication: The court held that the proviso to S.202(2) is applicable only where the Magistrate elects to conduct an inquiry under S.202(1); omission to examine witnesses in the absence of such an inquiry does not render committal proceedings illegal. The opinion does not purport to lay down a new broad precedent beyond the statutory interpretation applied to the facts of this case.

This summary is confined to and derived exclusively from the contents of the provided opinion. No additional facts or inferences not contained in the opinion have been introduced.

Show full summary ...

    Kochu Mohammed And Others v. State Of Kerala And Another

    1. Accused 1 to 3 in a case Initiated on a private complaint by the Judicial Second Class Magistrate, Cochin and pending trial before the Assistant Sessions Judge, Cochin are the petitioners. The complaint was filed at 5-15 P.M on 19-4-1976 with a schedule of witnesses. The complainant was directed to appear and to produce the witnesses in the schedule also at 11 A.M on 20-4-1976. On 20-4-1976 the sworn statement of the complainant was taken. No witnesses were present. The court registered the case as P.E 7 of 1976, directed summons to be issued to all the accused and posted the case to 11-5-1976. On the application of the accused the case was adjourned to 25-5-1976. On that day copies of the documents were furnished to the accused. The case was adjourned for hearing and further steps to 28-5-1976. On that day counsel for the complainant and the accused were heard. Since the offences taken cognizance of were exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session, The Assistant Sessions Judge, Cochin framed charges under S. 450 read with S. 34 of the I.P.C and S. 364 read with Ss. 511 and 34 of the I.P.C The present petition filed under S. 482 of the I.P.C is to quash the order of committal.

    2. The petitioners would contend that the order of committal is illegal because the mandatory provisions contained in S. 202 and S. 208 of the Cri. P.C have not been followed. According to the petitioners, the Magistrate having directed the complainant to produce the witnesses should have insisted on their examination and should have dismissed the complaint on the complainant's omission to produce the witnesses. The further case of the petitioners is that the proviso to S. 202(2) of the Criminal P.C lays down a special procedure in respect of offences triable exclusively by a Court of Session and the order of committal in violation of the said procedure is illegal.

    3. For appreciating the reasoning it is necessary to extract S. 202 of the Cr. P.C

    “202. 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 bun under S. 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 or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings:

    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 S. 200.

    (2) In an inquiry under sub-sec. (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 than 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.”

    4. The petitioners would contend that in view of the fact that the offences in the case were exclusively triable by the Court of Session, the Magistrate before ordering committal should have called upon the complainant to produce all the witnesses and should have examined them as directed in the proviso to S. 202(2), Sri V.K Hamza the learned counsel for the petitioners placed reliance on the ruling Paranjothi Udyar v. State (1976 Cri LJ 598) (Mad). Therein on a complaint presented on 5-2-1974 the case was taken to file under S. 395 read with S. 398 of the Indian Penal Code by the District Magistrate after recording the sworn statement of the complainant, Since the case was exclusively triable by a court of Session, the District Magistrate transferred it to Judicial Second Class Magistrate, Karakudi for conducting the preliminary enquiry. That court issued summons to the accused. While the case stood posted for examination of witnesses for the complainant the new Code of Criminal Procedure came into force. The court without examining the witnesses committed the accused to stand their trial in the Court of Session. The order of committal was challenged for the non-compliance of proviso to S. 202(2) of the new Code, The objection was upheld, The learned Judge of the Madras High Court who disposed of the case observed (at pages 601, 602 of Cri, L.J).

    “In cases instituted on a police report, the accused will have the benefit of obtaining copies of the statements of witnesses recorded by the police. In cases instituted other than on 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 statement, and other documents, it any, mentioned in cls. (ii) and (iii) of S. 208 furnished to him and have the benefit of preparing his defence as an accused in a police case will have.”

    5. While the above interpretation of the proviso will no doubt put the accused in a better position during trial, the scheme of the Act and the language of S. 202 put considerable difficulty in interpreting the proviso in the above manner, Reference may be made here to Ss. 190 and 200. Section 190(a) empowers the court to take cognizance of an offence upon receiving a complaint of facts which constitute such offence. Section 200 directs that the Magistrate taking cognizance of an offence on complaint should examine upon oath the complainant and the witnesses present if any. Section 202(1) enables the Magistrate if he thinks fit to postpone the issue of process against the accused and either enquire the case himself or direct (subject to the exceptions mentioned in the proviso) an investigation to be made by a police officer or such other persons as he thinks fit. From the very language, it is clear that it is entirely left to the discretion of the court to decide whether there should be an enquiry. What is mentioned in S. 202(2) is that in an enquiry under S. 202(1) the Magistrate may, if he thinks fit, take evidence. The deduction that follows is that where the Magistrate does not conduct an enquiry under S. 202(1) he need not examine witnesses. Since S. 202(2) begins with the words “in an enquiry under sub-sec. (1) the proviso to sub-section (2) can have application only to cases where the Magistrate conducts an enquiry. It is true that S. 208 like its counterpart, S. 207, directs that the Magistrate should furnish to the accused a copy of each of the statements recorded under S. 200 or 202 of persons examined by him. The provision only means that if there are witnesses examined under S. 200 or 202, the copies of their statements should be given. Section 209 which deals with commitment lays down a common procedure for cases instituted on a police report or otherwise. Thus an analysis of the provisions contained in Chapters XV and XVI shows that it is not obligatory to examine witnesses either at the pre-cognition stage or at the precommitment stage.

    6. It is true that in the absence of examination of witnesses at some stage prior to commitment, the accused in a private complaint gets no occasion to know in advance what the witnesses would be going to say, whereas in a police case, they would be having the statements of witnesses recorded during investigation. This hardship can be avoided only if Magistrates use their discretion and examine all the important witnesses either under S. 202 or under S. 200, Omission will not however make the proceedings either irregular or illegal. As has been observed in Nagawwa v. Veeranna ((1976) 3 SCC 736 : AIR 1976 SC 1947) : (1976 Cri LJ 1533),

    “in proceedings under S. 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether process should be issued against him or not.”

    7. From the foregoing reasoning it is clear the Magistrate need examine witnesses only in cases where he uses his discretion, postpones the issue of process and decides to have an enquiry under S. 202(1) and not in other cases.

    8. It is then argued that in the instant case the Magistrate having directed the complainant to produce her witnesses decided to launch an enquiry and it is not open to the court to retract therefrom subsequently. The reference is apparently to the direction given by the court to the complainant on 19-4-76, the date of presentation of the complaint to appear and produce her witnesses on 20-4-1976. The argument overlooks the fact that Chapter XV of the Code of Criminal Procedure contemplates two stages wherein the Magistrate can record evidence of witnesses-first, the stage of taking cognizance and second at the post cognizance stage, before the issue of process. The direction to produce witnesses was made in this case before the sworn statement of the complainant was taken and the complaint was admitted to file. It is not necessary to examine witnesses named in the complaint for taking cognizance of an offence and once the Magistrate takes cognizance of an offence after taking the sworn statement of the complainant, the order is not liable to be attacked on the ground that the witnesses mentioned in the complaint were not examined. The Magistrate, after taking cognizance of the offence as provided in S. 200, did not consider it necessary that he should postpone the issue of process and conduct an enquiry. Hence there was no occasion for him to examine witnesses as directed in the proviso to S. 202(2). The Criminal Miscellaneous petition is therefore without merits. It is accordingly dismissed.

    9. Petition dismissed.

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    Comments

    Kochu Mohammed And Others v. State Of Kerala And Another
    (Apr 15, 1977)