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P.S.Sulaiman v. Eachara Warrier

Kerala High Court

Apr 5, 1978

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

A petition under section 482 of the Criminal Procedure Code, 1973 (Act 2 of 1974) sought quashing of the entire proceedings in P.E. 5 of 1977 on the file of the Judicial First Class Magistrate, Perambra. At the time of hearing the relief sought was limited by counsel for the petitioner (Accused No. 15) to quashing the summons issued to him under section 204 of the Code.

The petitioner's complaint is that the learned magistrate erred in proceeding under section 204 after complying with section 200, without first calling upon the complainant to produce all his witnesses and examining them as required by the proviso to section 202(2). The complaint included offences exclusively triable by a court of session.

The matter was referred to a bench of two judges because an earlier decision by Janaki Amma J. in Kochu Mohammed v. State of Kerala (1977) had been canvassed before her. Several other reported decisions on the same question were cited and considered by the court.

Legal Issues Presented

Whether, after taking cognizance and examining the complainant and witnesses under section 200, a magistrate may straightaway issue process under section 204 without calling for and examining all witnesses under the proviso to section 202(2) when the complaint includes offences exclusively triable by a court of session.
Whether the proviso to section 202(2) operates so as to make compliance with it mandatory before issuing process under section 204 in private complaints involving offences exclusively triable by a court of session (i.e., whether the magistrate's discretion under section 202(1) is thereby fettered).

Arguments of the Parties

Petitioner's Arguments

The magistrate, when dealing with a complaint alleging offences exclusively triable by a court of session, must either dismiss the complaint under section 203 or, if not dismissed, commit the case under section 209 to the court of session; the magistrate cannot straightaway issue process under section 204 in such cases.
If commitment is made under section 209, the accused must be furnished with copies of statements under section 208(i), which the petitioner argued implied that a magistrate should have examined all witnesses referred to in the proviso to section 202(2) before commitment.
Accordingly, the proviso to section 202(2) must be complied with before issuing process under section 204 in private complaints involving session triable offences.

The opinion does not contain a detailed account of any specific counter-arguments advanced by the respondent in opposition in the same granular form; the court's discussion addresses the legal correctness of the petitioner's contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kochu Mohammed v. State of Kerala, 1977 CRL. L. J. 1867 (Janaki Amma J.)	Held that if provisions of s.200 were complied with, non-compliance with the proviso to s.202(2) would not render an order of committal illegal or irregular.	The court considered this decision correct and followed its reasoning; it approved the view that compliance with s.200 can suffice and that the proviso to s.202(2) does not always render subsequent process illegal if not followed.
State v. Kastu Behera (Orissa), 1975 CRL. L. J. 1178	Reportedly supports the view that non-compliance with proviso to s.202(2) does not necessarily invalidate proceedings where s.200 was complied with.	The court treated this decision as supporting the Kochu Mohammed view and accepted it as correct for present purposes.
Boya Lakshmanna v. Boyachinna Narasappa (Andhra Pradesh), 1976 CRL. L. J. 127	Reportedly supports the same view as Kochu Mohammed regarding non-mandatory application of the proviso when s.200 complied with.	The court regarded this decision as supportive and accepted it along with the other supporting precedents.
Budaraju Seshagiri Rao v. T. V. Sarma (Andhra Pradesh), 1976 CRL. L. J. 902	Also cited as supporting the position that compliance with s.200 may suffice and that failure to follow the proviso to s.202(2) does not automatically invalidate proceedings.	The court accepted this decision as correct and relied on it in forming its conclusions.
Paranjothi Udyar v. State (Madras), 1976 CRL. L. J. 598	Cited as taking a different view or containing observations contrary to the Kochu Mohammed line of authority.	The court did not agree with this decision in so far as it tended to restrict the magistrate's discretion under s.202(1); it expressly disagreed with the contrary view.
P. R. Murugaiyan v. Jayaveera Pandia Nadar (Madras), 1977 CRL. L. J. 1700	Included among authorities containing observations to the contrary; specifically noted as containing observations tending to fetter the discretion under s.202(1).	The court stated it did not agree with these observations to the extent that they would fetter the magistrate's discretion, and therefore did not follow them.
Kamal Krishna De v. State (Calcutta), 1977 CRL. L. J. 1492	Cited as a decision taking a different view to those supporting Kochu Mohammed.	The court did not agree with the Calcutta High Court decision where it tended to limit the magistrate's discretion; the opinion rejects the contrary approach in this case.

Court's Reasoning and Analysis

The court analysed the statutory text and legislative object to resolve whether the proviso to section 202(2) prevents a magistrate from issuing process under section 204 after complying with section 200.

Key elements of the court's reasoning (as stated in the opinion) are:

Interpretation of section 208(i): The provision requires furnishing copies of statements under section 200 or section 202. The court emphasised that the use of "or" is disjunctive rather than conjunctive, meaning that when process is issued based on statements recorded under section 200 alone, section 208(i) does not contemplate furnishing statements recorded under section 202.
Nature of the proviso to section 202(2): The proviso is subordinate to section 202(2) and therefore applies only when section 202(1) is engaged — that is, when the magistrate decides to postpone the issue of process and either inquire himself into the case or direct a police investigation. Section 202(1) uses the word "may," indicating the magistrate has discretion not to postpone issuance of process.
Magistrate's discretion: If, after complying with section 200, the magistrate does not think postponement is necessary, he may issue process under section 204 immediately. To require compliance with the proviso to section 202(2) in all private complaints involving session-triable offences would unduly fetter the statutory discretion entrusted to the magistrate under section 202(1), which is not warranted by the text.
When the proviso does apply: If the magistrate, under section 202(1), postpones the issue of process and conducts an inquiry himself, then the proviso to section 202(2) becomes obligatory; he must call upon the complainant to produce all witnesses and examine them on oath. If after such inquiry he issues process, section 208(i) requires furnishing copies of statements recorded under section 202 of all persons examined.
Legislative purpose: The court considered the statement of objects and reasons for the relevant provision (clause 214) and concluded the interpretation it gives is consonant with the legislative aim to do away with preliminary enquiries in many cases while preserving a limited exception for private complaints where further scrutiny is necessary.
Precedent analysis: The court identified and followed a line of authorities (including Kochu Mohammed, State v. Kastu Behera, Boya Lakshmanna, and Budaraju Seshagiri Rao) that support the view that compliance with section 200 can suffice. It expressly disagreed with authorities from the Madras and Calcutta High Courts (and certain observations in P. R. Murugaiyan) that it viewed as tending to restrict magistrate's discretion under section 202(1).

Applying these principles to the facts, the court found that in the present case the magistrate had issued summons under section 204 after complying with section 200, which, on the court's construction of the Code, was neither illegal nor irregular.

Holding and Implications

Holding: The petition under section 482 is dismissed.

Direct implications for the parties and procedure (as stated in the opinion):

The magistrate was entitled, after taking cognizance and complying with section 200, to either dismiss the complaint under section 203 if he considered there were insufficient grounds, or to issue process under section 204 if he considered there were sufficient grounds, without being obliged in every case to first follow the proviso to section 202(2).
If the magistrate chooses to postpone issuance of process under section 202 and conduct an inquiry himself, the proviso to section 202(2) becomes operative and he must call for and examine all witnesses on oath; if after such inquiry he issues process he must furnish copies of statements recorded under section 202 to the accused under section 208(i).
In the present matter, issuance of summons under section 204 after compliance with section 200 was held to be neither illegal nor irregular; there was no basis to invoke the court's inherent powers to quash the summons or proceedings.

The opinion sets out and affirms the court's view of the proper exercise of magistrate's discretion under sections 200, 202 and 204 and approves a line of earlier decisions that align with that view. The court expressly declined to follow decisions it considered to unduly restrict that discretion.

Show all summary ...

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 versus 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 202 (1) what is provided is that if the magistrate thinks that postponement of the issue of process against an accused under s. 204 is necessary for deciding whether there is sufficient ground for proceeding he "may" either inquire into the case himself or direct investigation to be made by a police officer. Mark the word 'may' there. That shows that it is open to him not to postpone the issue of process under s. 204 of the code also. If he does not think fit to postpone the issue of process against the accused it is open to him to straightaway issue process under s. 204 after examination of the persons contemplated by s. 200 of the code. The choice is solely with the magistrate. It is a matter entirely in his discretion no fetter should be placed on that discretion. To tell the magistrate that it is always desirable that in private complaints involving offences triable exclusively by the court of session he should follow the provisions of the proviso to s. 202 (2) is to interfere with that discretion and that is not warranted by s. 202 (1). Proviso (a) to s. 202 (1) shows that direction regarding investigation by a police officer should not be made by the magistrate if the offence complained of is exclusively triable by a court of session. In such a case, If he thinks that postponement of issue of process is necessary for finding out whether there is sufficient ground for proceeding he has to inquire into the case himself. And if he does that the proviso to s. 202 (2) is immediately attracted. That proviso makes it obligatory on his part to call upon the complainant to produce all his witnesses and then to examine them on oath. But such a procedure is not contemplated if the magistrate thinks after complying with the provisions of s. 200 that it is not necessary to postpone the issue of process against the accused for the purpose of finding out whether there is sufficient ground for proceeding.

9. It is submitted that the interpretation now given to the proviso to s. 202 (2) of the code does not advance the object of the enactment. In the statement of objects and reasons in the note to the relevant clause, Namely clause. 214, What is mentioned is that preliminary enquiries in cases exclusively triable by court of session serve no useful purpose and so are proposed to be done away with altogether. As regards private complaints what is stated is that inquiry into the complaint by the magistrate under the then existing s. 202 would serve the purpose of preliminary scrutiny. Proviso to s. 202 (2) was added only by the amendment.

10. The object of the legislature was to do away the entire preliminary enquiry. An exception was made only in the case of private complaints and that only if the magistrate was not satisfied on the materials already available that there was no sufficient ground for proceeding. To meet such a contingency s. 202 (1) provided that he may postpone the issue of process and inquire into the case himself for the purpose of deciding whether or not there was sufficient ground for proceeding. The interpretation now put forward is in accordance with the object of the enactment.

11. With respect we consider the decision of this court in kochu mohammed v. State of kerala 1977 crl. Q. 1867 and the decisions of the orissa high court in the state v. Kastu behera 1975 crl. L. J. 1178 and the andhra pradesh high court in boya lakshmana v. Boyachinna narasappa 1976 crl l. J. 127 and budaraju seshagiri rao v. T v. Sarma 1976 crl. L. J. 902 as correct and we do not agree with the decisions to the contrary of the madras and calcutta high courts in paranjothi udyar v. State 1976 crl. L. J. 598 and kamal krishna de v. State 1977 crl. L. J 1492 and the observations in p. R. Murugaiyan v. Jayaveera pandia nadar 1977 crl. L. J. 1700 tending to fetter the discretion to be used under s. 202 (1) and to interfere with the power to dismiss complaint under s. 203 straightaway after complying with the provisions of s. 200 of the code.

12. As a result of the above discussion as regards procedure to be followed in cases instituted on private complaints involving offences exclusively triable by a court of session our conclusions are the following:

(1) after taking cognizance of the offences and examination under s. 200 of the code of the complainant and the witnesses present, If any, It is open to a magistrate to straightaway dismiss the complaint under s. 203 of the code if he is of opinion that there is no sufficient ground for proceeding. On the other hand if at that stage he is of opinion that there is sufficient ground for proceeding then he can straightaway issue under s. 204 of the code process to the accused. In that case the magistrate need furnish to the accused under s. 208 (i) of the code only copies of the statements recorded under s. 200 of the code,

(2) after complying with the provisions of s. 200 of the code if the magistrate thinks that there should be further material for finding out whether or not there is sufficient ground for proceeding then he may under s. 202 of the code postpone the issue of process against the accused and inquire into the case himself.

and (3). If he so inquires himself into the case then it is peremptory under the proviso to s. 202 (2) of the code that he should call upon the complainant to produce all his witnesses and examine them on oath. If after conducting such inquiry he is of opinion that there is sufficient ground for proceeding and he issues under s. 204 of the code process to the accused he should under s. 208 (i) of the code furnish to the accused copies of statements recorded under s. 202 of all persons examined.

in the present case the magistrate issued summons to the accused under s. 204 of the code after complying with the provisions of s. 200 of the code. That was neither illegal nor irregular. Further no question of giving effect to any order under the code or preventing abuse of the process of the court so as to invoke the inherent power of the court is involved here. Hence this petition is dismissed.

dismissed.