# 7 S.C.R. 667 SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS

- **Citation:** [2010] 7 S.C.R. 667
- **Court:** Supreme Court of India
- **Decided:** 2010-07-06
- **Case number:** Criminal Appeal No. 1158 of 2010
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-s-c-r-667-shivjee-singh-v-nagendra-tiwary-and-ors-26940
- **Pages:** 27

## Headnote

Code of Criminal Procedure, 1973 - s.202(2), provisoInterpretation of - Whether examination of all witnesses cited
A
B
in the complaint is sine qua non for taking cognizance by a
C
Magistrate in a case exclusively triable by the Court of
Sessions - Held, No - Even though in terms of the proviso
to s.202(2), the Magistrate is required to direct the.
complainant to produce all his witnesses and examine them
on oath, failure or inability of the complainant or omission on
D
his part to examine one or some of the witnesses cited in the
complaint or whose names are furnished in compliance of the
direction issued by the Magistrate, will not preclude the latter
from taking cognizance and issuing process or passing
committal order if he is satisfied that there exists sufficient
E
ground for doing so - Examination of all the witnesses cited
in the complaint or whose names are disclosed by the
complainant in furtherance of the direction given by the
Magistrate in terms of proviso to s. 202(2) is not a· condition
precedent for taking cognizance and issue of process against
F
the persons named as accused in the complaint -
Consequence of such non-examination is to be considered
at the trial and not at the stage of issuing process.
Words and Phrases - "shall" - Meaning of - In context
to proviso to s.202(2) CrPC.
G
The appellant's son was said to have been killed by
respondent nos.1 to 4. After conducting investigation, the
police submitted final form with the finding that they had
667
H
668
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A no clue about the culprits. Thereupon, the appellant filed
a protest petition, which, at the instance of the Judicial
Magistrate, was converted into a complaint.
The appellant examined himself and two out of the
8 four witnesses cited in the protest petition-cumcomplaint. After considering the statements of the
appellant and the said two witnesses, the Judicial
Magistrate took cognizance against respondent Nos.1 to
4 for offence under Section 302 read with Section 1208
IPC and Section 27 of the Arms Act and directed issue
C of non-bailable warrants against them.
Respondents challenged the order of the Judicial
Magistrate by filing petition under Section 482 CrPC. The
High Court held that the Judicial Magistrate could not
D have taken cognizance against the respondents without
requiring the appellant to examine all the four witnesses
named by him and remitted the matter to the concerned
court for passing appropriate order after making further
inquiry in the light of proviso to Section 202(Z) CrPC.
E
Before this Court, it was contended by the appellant
that the proviso to s.20~(2) Cr.P.C. is not mandatory in
character and the High Court committed serious error by
remitting the matter to the Judicial Magistrate for further
F enquiry only on the ground that all the witnesses named
by the appellant had not been examined. The appellant
contended that non-examination of two witnesses cited
in the protest petition-cum-complaint did not preclude the
Judicial Magistrate from taking cognizance against
respondent nos.1 to 4 since he felt satisfied that a prima
G facie case was made out against them.
H
The question which thus arose for consideration in
the present appeal was whether examination of all
witnesses cited in the complaint is sine qua non for
SHIVJEE SINGH v. NAGENDRATIWARY AND ORS. 669
taking cognizance by a Magistrate in a case exclusively
A
triable by the Court of Sessions.
Allowing the appeal, the Court
HELD:1.1. By its very nomenclature, Cr.P.C. is a
compendium of law relating to criminal procedure. The
B
provisions contained therein are required to be
interpreted keeping in view the well recognized rule of
construction that procedural prescriptions are meant for
doing substantial justice. If violation of the procedural
provision does not result in denial of fair hearing or C
causes prejudice to the parties, the same has to be ·
treated as directory notwithstanding the use of word
'shall'. (Para 6] [676-D]
· 1

## Text

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[2010) 7 S.C.R. 667
SHIVJEE SINGH
V.
NAGENDRA TIWARY AND ORS.
(Criminal Appeal No. 1158 of 2010)
JULY 6, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Code of Criminal Procedure, 1973 - s.202(2), provisoInterpretation of - Whether examination of all witnesses cited
A
B
in the complaint is sine qua non for taking cognizance by a
C
Magistrate in a case exclusively triable by the Court of
Sessions - Held, No - Even though in terms of the proviso
to s.202(2), the Magistrate is required to direct the.
complainant to produce all his witnesses and examine them
on oath, failure or inability of the complainant or omission on
D
his part to examine one or some of the witnesses cited in the
complaint or whose names are furnished in compliance of the
direction issued by the Magistrate, will not preclude the latter
from taking cognizance and issuing process or passing
committal order if he is satisfied that there exists sufficient
E
ground for doing so - Examination of all the witnesses cited
in the complaint or whose names are disclosed by the
complainant in furtherance of the direction given by the
Magistrate in terms of proviso to s. 202(2) is not a· condition
precedent for taking cognizance and issue of process against
F
the persons named as accused in the complaint -
Consequence of such non-examination is to be considered
at the trial and not at the stage of issuing process.
Words and Phrases - "shall" - Meaning of - In context
to proviso to s.202(2) CrPC.
G
The appellant's son was said to have been killed by
respondent nos.1 to 4. After conducting investigation, the
police submitted final form with the finding that they had
667
H
668
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A no clue about the culprits. Thereupon, the appellant filed
a protest petition, which, at the instance of the Judicial
Magistrate, was converted into a complaint.
The appellant examined himself and two out of the
8 four witnesses cited in the protest petition-cumcomplaint. After considering the statements of the
appellant and the said two witnesses, the Judicial
Magistrate took cognizance against respondent Nos.1 to
4 for offence under Section 302 read with Section 1208
IPC and Section 27 of the Arms Act and directed issue
C of non-bailable warrants against them.
Respondents challenged the order of the Judicial
Magistrate by filing petition under Section 482 CrPC. The
High Court held that the Judicial Magistrate could not
D have taken cognizance against the respondents without
requiring the appellant to examine all the four witnesses
named by him and remitted the matter to the concerned
court for passing appropriate order after making further
inquiry in the light of proviso to Section 202(Z) CrPC.
E
Before this Court, it was contended by the appellant
that the proviso to s.20~(2) Cr.P.C. is not mandatory in
character and the High Court committed serious error by
remitting the matter to the Judicial Magistrate for further
F enquiry only on the ground that all the witnesses named
by the appellant had not been examined. The appellant
contended that non-examination of two witnesses cited
in the protest petition-cum-complaint did not preclude the
Judicial Magistrate from taking cognizance against
respondent nos.1 to 4 since he felt satisfied that a prima
G facie case was made out against them.
H
The question which thus arose for consideration in
the present appeal was whether examination of all
witnesses cited in the complaint is sine qua non for
SHIVJEE SINGH v. NAGENDRATIWARY AND ORS. 669
taking cognizance by a Magistrate in a case exclusively
A
triable by the Court of Sessions.
Allowing the appeal, the Court
HELD:1.1. By its very nomenclature, Cr.P.C. is a
compendium of law relating to criminal procedure. The
B
provisions contained therein are required to be
interpreted keeping in view the well recognized rule of
construction that procedural prescriptions are meant for
doing substantial justice. If violation of the procedural
provision does not result in denial of fair hearing or C
causes prejudice to the parties, the same has to be ·
treated as directory notwithstanding the use of word
'shall'. (Para 6] [676-D]
· 1.2. Chapter XIV of CrPC enumerates the conditions
for initiation of proceedings. Chapters XV and XVI
contain various procedural provisions which are required .
o·
to be followed by the Magistrate for taking cognizance,
issuing of process/summons, dismissal of the complaint,
supply of copies of documents and statements to the
E
accused and commitment of case to the Court of
Sessions when the offence is triable exclusively by that
· Court. An analysis of Sections 200, 202, 203, 204, 207, 208
· and 209 Cr.P.C. which form part of these Chapters shows
that when a complaint is presented before a Magistrate,
F
he can, after examining the complainant and his
witnesses on oath, take cognizance of an offence. This
procedure is not required to be followed when a written
complaint is made by a public servant, acting or
purporting to act in discharge of his official duties or
when a Court has made the complaint or if the Magistrate
G
makes over the case for inquiry/trial to another Magistrate
under Section 192. Section 202(1) empowers the ·
Magistrate to postpone the issue of proces~ against the
accused and either inquire into the case himself or direct
an investigation to be made by a police officer or by such
H
670
SUPREME COURT REPORTS
[2010) 7 S.C.R.
A other person which he thinks fit for the purpose of
deciding whether or not there exists sufficient ground for
proceeding. By Amending Act No.25 of 2005, the
postponement of the issue of process has been made
mandatory where the accused is residing in an area
8 beyond the territorial jurisdiction of the concerned
Magistrate. Proviso to Section 202(1) lays down that
direction for investigation shall not be made where it
appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Sessions or where
C the complaint has not been made by a Court unless the
complainant and the witnesses have been examined on
oath under Section 200. Under Section 202(2), the
Magistrate making an inquiry under sub-section (1) can
take evidence of the witnesses on oath. If the Magistrate
thinks that the offence complained of is triable exclusively
D by the Court of Sessions then in terms of proviso to
Section 202, he is required to call upon the complainant
to produce all his witnesses and examine them on oath
[Paras 6, 7] [676-G-H; 681-G-H; 682-A-C]
E
1.3. The object of examining the complainant and the
witnesses is to ascertain the truth or falsehood of the
complaint and determine whether there is a prima facle
case against the person who, according to the
complainant has committed an offence. If upon
F examination of the complainant and/or witnesses, the
Magistrate is prima facie satisfied that a case is made out
against the person accused of committing an offence
then he is required to issue process. Section 202
empowers the Magistrate to postpone the issue of
G process and either inquire into the case himself or direct
an investigation to be made by a police officer or such
other person as he may think fit for the purpose of
deciding whether or not there is sufficient ground for
proceeding. Under Section 203, the Magistrate can
H
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 671
dismiss the complaint if, after taking into consideration A
the statements of the complainant and his witnesses and
the result of the inquiry/investigation, if any, done under
Section 202, he is of the view that there does not exist
sufficient ground for proceeding. On the other hand,
Section 204 provides for issue of process if the Magistrate B
is satisfied that there is sufficient ground for doing so.
The expression "sufficient ground" used in Sections 203,
204 and 209 means the satisfaction that a prima facie
case is made out against the person accused of
committing an offence and not sufficient ground for the c
purpose of conviction. [Para 8) [683-E-H; 684-A-B]
1.4. The use of the word 'shall' in proviso to Section
202(2) is prima facie indicative of mandatory character of
the provision contained therein, but a close and critical
analysis thereof along with other provisions contained in D
Chapter XV and Sections 226 and 227 and Section 465
would clearly show that non-examination on oath of any
or some of the witnesses cited by the complainant is, by
itself, not sufficient to denude the concerned Magistrate
of the jurisdic;tion to pass an ~order for taking cognizance E
and issue of process provided he is satisfied that prima
facie case is made out for doing so. Significantly the word
'all' appearing in proviso to Section 202(2) is qualified by
the word 'his'. This implies that the complainant is not
bound to examine all the witnesses named in the F
complaint or whose names are disclosed in response to
the order passed by the Magistrate. In other words, only
those witnesses are required to be examined whom the
complainant considers material to make out a prima facie
case for issue of process. The choice being of the G
complainant, he may choose not to examine other
witnesses. Consequence of such non-examination is to
be considered at the trial and not at the stage of issuing
process when the Magistrate is not required to enter into
H
672
SUPREME COURT REPORTS
[2010) 7 S.C.R.
A detailed discussions on the merits or demerits of the
case, that is to say whether or not the allegations
contained in the complaint, if proved, would ultimately
end in conviction of the accused. He is only to see
whether there exists sufficient ground for proceeding
B against the accused. [Para 12] [685-H; 686-A-E]
1.5. Even though in terms of the proviso to Section
202(2), the Magistrate is required to direct the
complainant to produce all his witnesses and examine
C them on oath, failure or inability of the complainant or
omission on his part to examine one or some of the
witnesses cited in the complaint or wh.ose names are
furnished in compliance of the direction issued by the
Magistrate, will not preclude the latter ,from taking
cognizance and issuing process or passing committal
D order if he is satisfied that there exists sufficient ground
for doing so. Such an order passed by the Magistrate
cannot be nullified only on the ground of non~ompliance
of proviso to Section 202(2). [Para 14] [692-A-D]
E
1.6. Examination of all the witnesses cited in the
complaint or whose names are disclosed by the
complainant in furtherance of the direction ·given, by the
I
Magistrate in terms of proviso to Section 202(2) is not a
condition precedent for taking cognizance and Issue of
F process against the persons named as accused in the
complaint. In the present case, the High Court committed
serious error in directing the Judicial Magistrate to
conduct further inquiry and pass fresh order in the light
of proviso to Section 202(2). Since the matter is more than
G 12 years old, the concerned Magistrate is directed to pass
appropriate order in terms of Section 209. It is further
directed that after committal of the case, the Sessions _
Judge, to whom the matter is assigned, shall conduct and
complete the trial within a period of 9 months. [Paras 16
H and 17] [692-G-H; 693-A-C]
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 673
Birendra K. Singh v. State of Bihar (2000) 8 SCC 498,
A
held inapplicable.
Rosy v. State of Kera/a (2000) 2 SCC 230, explained
R.C. Ruia v. State of Bombay 1958 SCR 618; Vadi/a/
Panchal v. Duftatraya Dulaji Ghadigaonkar (1961) 1 SCR 1;
8
Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR
639; Nirmaljit Singh Hoon v. State of West Bengal (1973) 3
. SCC 753; Kewal Krishan v. Suraj Bhan (1980) Supp SCC ·
4$9; Mohinder Singh v. Gu/want Singh (1992) 2 SCC 213
and Chief Enforcement Officer v. Videocon International Ltd.
C
(2008) 2 sec 492, relied on.
I
Ranjit Singh v. State of Pepsu AIR 1959 SC 843;
Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635; M.
Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917 and o
I Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500,
· referred to. .
Case Law Reference:
(2000) 2 sec 230
explained
Para 5
E
(2000) 8 sec 498
held inapplicable
Para 5
1958 SCR 618
relied on
Para 8
(1961) 1 SCR 1
relied on
Para 8
F
(1964) 1 SCR 639
relied on
Para 8
(1973) 3 sec 753
relied on
Para 8
(1980) Supp sec 499 relied on
Para 8
(1992) 2 sec 213
relied on
Para 8
G
(2008) 2 sec 492
relied on
Para 8
· AIR 1959 SC 843
referred to
Para 13
H
674
A
SUPREME COURT REPORTS
(1987) 1 KLT 635
1983 Cri LJ 917
(2000) 8 sec 500
referred to
referred to
referred to
[2010] 7 S.C.R.
Para 13
Para 13
Para 15
B
CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal
No. 1158 of 2010.
From the Judgment & Order dated 18.4.2007 of the High
Court of Judicature at Patna in Crl. Misc. No. 1778 of 2007.
C
Gaurav Agrawal for the Appellant.
D
Gopal Singh, Akhilesh Kumar Pandey, Sudarsh Saran,
Shalini Chandra, Swati Chandra for the ResponderitSi.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
2. Whether examination of all witnesses cited in the
complaint is sine qua non for taking cognizance by a
Magistrate in a case exclusively triable by the Court of Sessions
E is the question which arises for consideration in this appeal filed
against order dated 18.4.2007 passed by the learned Single
:Judge of Patna High Court in Criminal Miscellaneous Petition
No.1778 of 2007 whereby he remitted the case to Chief Judicial
Magistrate, Saran with the direction to make further inquiry and
F pass appropriate order in the light of proviso to Section 202(2)
of the Code of Criminal Procedure (Cr.P.C.).
3. The appellant's son, Ajay Kumar Singh is said to have
been killed by respondent Nos.1 to 4 on 1 /2.1.1997. The
G appellant lodged First Information Report on the same day at
Police Station, lsuapur. After conducting investigation, the police
submitted final form on 3.9.1998 with the finding that they had
no clue about the culprits. Thereupon, the appellant filed a
protest petition accusing the police of not conducting the
H investigation properly due to political pressure and prayed that
SHIVJEE SINGH v. NAGEr:.IDRA TIWARY AND ORS. 675
[G.S. SINGHVI, J.]
thf? accused persons be summoned and punished. By an order A
gated 3.9.2802, t~e learned Judicial Magistrate accepted the
final form §ubmitted by the police but, at the same time, directed
that the prot@§t petiti~ll !:>@ rt;i~ist~red as a separate complaint.
He also c:llreeted t~e gprnpla.inant (appell;:iflt h@rein) to produce
his witnesses. The app~ll~nt eX9rnin!?d himself and two out of B
four witnesses cited in the i:in~test petition-cμrn"§Qmg!aint ·but
gave up the remaining two witnesses because he thought that .
they had been won over by the accused. After considering.the
statements of the appellant and two witnesses, Chief Judicial
Magistrate, Saran passed an ·order dated 13.12.2006 whereby c
h~ tE>E>~ gogriizance against respondent Nos.1 .to 4 for offence
Yflder ~~i::;tlq11 902 reaq with Section 1208 Indian Penal Code
and ~~cti9n ~7 gf the Arms Act and directed issue of non
bailable w;;irrants a~J<~inst them.
4. The respgnc:!ents Ghcillen~~d tne qrder of the Chief D
Judicial Magistrate by filing ~ p,E!tition unqer Section 482
Cr.P.C. The learned Single Judge aGcepteq their contention
. that the Chief Judicial Magistrate could not have taken
cognizance against them without requiring the appellant to
examine all the witnesses and remitted the matter to the E
concerned court for passing appropriate order after making
fYrther inquiry in the light of proviso to Section 202(2) Cr.P.C.
!), ~hri gqyrnv Agrawal, learned counsel for the appellant
argued that prgyj§g tg §ection 202(2) Cr.P.C. is not mandatory
F
in character and the High Court committed serious error by
remitting the matter to the Chief Judicial Magistrate for further
inquiry only on the ground that all the witnesses named by the •
appellant had not been examined. Learned counsel further
argued that non-examination of two witnesses cited in the G
protest petition-cum-complaint did not preclude the Chief
Judicial Magistrate from taking Gognizance against respondent
Nos.1 to 4 because he felt satisfied that a prima facie case was
made out against them. In support of his arguments, learned
counsel relied upon the judgment of this Court in Rosy v. State H
676
SUPREME COURT REPORTS
[2010] 7 S.C.R.
A
of Kera/a (2000) 2 SCC 230. Shri Gopal Singh, learned
counsel for the respondents argued that proviso to Section
202(2) Cr.P._C. is mandatory and the Chief Judicial Magistrate
committed a serious error in taking cognizance against
respondent Nos.1 to 4 and issuing non-bailable warrants
B
against them without insisting on the examination of remaining
two witnesses named in the complaint. He relied upon the
observations made by Thomas, J. in Rosy v. State of Kera/a
(supra) and the judgment in Birendra K. Singh v. State of Bihar
(2000) 8 sec 498 in support of his submission that proviso to
c
S(~ction 202(2) Cr.P.C. is mandatory.
6. We have considered the respective submissions. By its
very nomenclature, Cr.P.C. is a compendium of law relating to
criminal procedure. The provisions contained therein are
required to be interpreted keeping in view the well recognized
D rule of construction that procedural prescriptions are meant for
doing substantial justice. If violation of the procedural provision
does not result in denial of fair hearing or causes prejudice to
the parties, the same has to be treated as directory
notwithstanding the use of word 'shall'. Chapter XIV of Cr.P .C.
E
enumerates conditions for initiation of proceedings. Under
Section 190, which forms part of the scheme of that chapter, a
Magistrate can take cognizance of any offence either pn
receiving a complaint of facts which constitute an offence or a
police report of such facts or upon receipt of information from
F
any person other than a police officer or upon his own
knowledge, that such an offence has been committed. Chapters
XV and XVI contain various procedural provisions which are
required to be followed by the Magistrate for taking cognizance,
issuing of process/summons, dismissal of the complaint,
G sypply of copies of documents and statements to the accused
and commitment of case to the Court of Sessions when the
offence is triable exclusively by that Court. Sections 200, 202,
203, 204, 207, 208 and 209 Cr.P.C. which form part of these
chapters and which have bearing on the question raised in this
H
appeal read as under:
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 677
[G.S. SINGHVI, J.]
"200. Examination of complainant.- A Magistrate taking
A
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:
B
-- -Br.mtLded that, when the complaint is made in writing,
the Magistrate-need not examine the complainant and the
witnesses-
( a)
if a public servant acting or purporting to act in the C
discharge of his official duties or a Court has made
the complaint; or
(b)
if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
D
Provided further that if the Magistrate makes over the
case ;to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.
202. Postponement of issue of process.-(1) Any
Magistrate, on receipt of a complaint of an offence df
which he is authorised to take cognizance or which has
been made over to him under section 192, may, if he thinks
E
fit, and shall, in a case where the accused is residing at a
F
place beyon'"' the area in which he exercises his
jurisdiction 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
G
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
H
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B
c
D
E
F
G
678
SUPREME COURT REPORTS
!2010] 7 S.C.R.
coltlplalned of Is triable exclusively by the Court of
Sessiohsi ot
{b)
where tHe comptaitit 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 witness 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.
203. Dismissal of complaint.- If, after considering the
statements on oath (if any) of the complainant and of the
witnesses and the result of the inquiry or investigation (if
any) under Section 202, the Magistrate is of opinion that
there is no sufficient ground for proceeding, he shall
dismiss the complaint, and in every such case he shall
record his reasons for so doing.
204. Issue of process.- (1) If in the opinion of a Magistrate
taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks
H
fit, a summons, for causing the accused to be brought or
SHIVJEE SINGH v. NAGENDRA TiWARY AND ORS. 679
[G.S. SINGHVI, J,J
to appear at a certain time before such Magistrate or (if
A
he has no jurisdictiotl hitnselO some other Magistrates
having jurisdiction.
(2) No surnmons ot warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-
. section (1) shall be accompanied by a copy of such
complaint.
(4) When by any law for the time being in force any
process-fees or other fees are payable, no process shall
B
c
,be issued until the fees are paid and, if such fees are not
paid within a reasonable time, the Magistrate may dismiss
D
the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87.
207. Supply to the accused of copy of police report and
E
other documents. - In any case where the proceeding has
been. instituted on a police report, the Magistrate shall
without delay furnish to. the accused, free of cost, a copy
of each of the following:-
(i) the police report;
F
(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
G
to examine as its witnesses, excluding there from 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;
H
A
B
c
D
E
F
G
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680
SUPREME COURT REPORTS
(2010] 7 S.C.R.
(iv) the confessions and statements, if any, recorded under
section 164;
(v) any other document or relevant extract thereof
forwarded to the Magistrate with the police report under
sub-section (5) of section 173:
Provided that the Magistrate may, after perusing any such
part of a statement as is referred to in clause (iii) and
considering the reasons given by the police officer for the
request, direct that a copy of that part of the statement or
of such portion thereof as the Magistrate thinks proper,
shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any
document referred to in clause (v) 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.
208. 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, or all persons examined by the Magistrate;
(ii) the statements and confessions, 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
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 681
[G.S. SINGHVI, J.]
document is voluminous, he shall, instead of furnishing the
A
accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader
in Court.
209. Commitment of case to Court of Session when
8
offence is triable exclusively by it.-When in a case
instituted on a police report or otherWise, the accused
appears or is brought before the Magistrate and it appears
to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall-
(a)
commit, after complying with the provisions of
section 207 or section 208, as the case may be,
c
the case to the Court of Session, and subject to the
provisions of this Code relating to bail, remand the
accused to custody until such commitment has
D
been made;
(b)
subject to the provisions of this Code relating to
bail, remand the accused to custody during, and
until the conclusion of, the trial;
(c)
send to that Court the record of the case and the
documents and articles, if any, which are, to b~
. produced in evidence;
E
(d) . notify the Public Prosecutor of the commitment of
F
the case to the Court of Session."
7. An analysis of the above reproduced provisions shows
that when a complaint is presented before a Magistrate, he can,
after examining the complainant and his witnesses on oath, take
cognizance of an offence. This procedure is not required to be
G
followed when a written complaint is made by a public servant,
acting or purporting to act in discharge of his official duties or
when a Court has made the complaint or if the Magistrate
makes over the case for inquiry/trial to another Magistrate under
Section 192. Section 202(1) empowers the Magistrate to
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A 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 which he
thinks fit for the purpose of deciding whether or not there exists
sufficient ground for proceeding. By Amending Act No.25 of
B 2005, the postponement of the issue of process has been
made mandatory where the accused is residing in an area
beyond the territorial jurisdictiori of the concerned Magistrate.
Proviso to Section 202(1) lays down that direction for
investigation shall not be made where it appears to the
c Magistrate that the offence complained of is triable exclusively
by the Court of Sessions or where the complaint has not been
made by a Court unless the complainant and the witnesses
have been examined on oath under Section 200. Under Section
202(2), the Magistrate making an inquiry under sub-section (1)
0 can take evidence of the witnesses on oath. If the Magistrate
thinks that the offence complained of is triable exclusively by
the Court of Sessions then in terms of proviso to Section 202,
he is required to call upon the complainant to produce all his
witnesses and examine them on oath. Section 203 empowers
E the Magistrate to dismiss the complaint if, after considering the
statements made by the complainant and the witnesses on oath
and the result of the inquiry or investigation, if any, made under
Section 202(1 ), he is satisfied that there is no sufficient ground
for proceeding. The exercise of this power is hedged with the
condition that the Magistrate should record brief reasons for
F dismissing the complaint. Section 204, which talks of issue of
process lays down that if the Magistrate taking cognizance of
an offence is of the view that there is sufficient ground for
proceeding then he may issue summons for attendance of the
accused in a summons-case. If it is a warrant-case, then the
G Magistrate can issue warrant for causing attendance of
accused. Section 207 casts a duty on the Magistrate to supply
to the accused, copies of the police report, the first information
report recorded under Section 154, the statements recorded
under Section 161 (3), the confessions and statements, if any,
H recorded under Section 164 and any other document or
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 683
[G.S. SINGHVI, J.]
relevant extract thereof, which is forwarded to the Magistrate
A
along with polic~ report. Section 208 provides for supply of
copies of statement and documents to accused in the cases
triable by the Court of Sessions. It lays down that if the case,
instituted otherwise t~an on a police report, is triable exclusively
by the Court of Sessions, the Magistrate shall furnish to the
B
accused, free of cost, copies of the statements recorded under
Section 200 or Section 202, statements and confessions
recorded under Section 161 or Section 164 and any other
document on which prosecution proposes to rely. Section 209
speaks of commitment of case to the Court of Sessions when c
offence is triable exclusively by it. This section casts a duty on
the Magistrate to commit the case to the Court of Sessions after
complying with the provisions of Section 208. Once the case
is committed, the trial is to be conducted by the Court of
Sessions in accordance with the provisions contained in
0
Chapter XVIII.
8. The object of examining the complainant and the
witnesses is to ascertain the truth or falsehood of the complaint
. and determine whether there is a prima facie case against the
= person who, according to the complainant has committed an
E
offence. If upon examination of the complainant and/or
witnesses, the Magistrate is prima facie satisfied that a case
is made out against the person accused of committing an
offence then he is required to issue process. Section 202
empowers the Magistrate to postpone the issue of process and
F
either inquire into the case himself or direct an investigation to
be made by a police officer or such other person as he may
think fit for the purpose of deciding whether or not there is
sufficient ground for proceeding. Under Section 203, the
Magistrate can dismiss the complaint if, after taking into
G
consideration the statements of the complainant and his
witnesses and the result of the inquiry/investigation, if any, done
under Section 202, he is of the view that there does not exist
sufficient ground for proceeding. On the other hand, Section
204 provides for issue of process if the Magistrate is satisfied
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A that there is sufficient ground for doing so. The expression
"sufficient ground" used in Sections 203, 204 and 209 means
the satisfaction that a prima facie case is made out against the
person accused of committing an offence and not sufficient
ground for the purpose of conviction. This interpretation of the
B provisions contained in Chapters XV and XVI of Cr.P.C. finds
adequate support from the judgments of this Court in R. C. Ruia
v. State of Bombay, 1958 SCR 618, Vadilal Panchal v.
Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra
Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639,
c Nirmaif it Singh Hoon v. State of West Bengal (1973) 3 SCC
753, Kewal Krishan v. Sura} Bhan (1980) Supp SCC 499,
Mohinder Singh v. Gu/want Singh (1992) 2 SCC 213 and
Chief Enforcement Officer v. Videocon International Ltd.
(2008) 2 sec 492.
D
9. In Chandra Deo Singh v. Prakash Chandra Bose
(supra), it was held that where there was prima facie evidence,
the Magistrate was bound to issue process and even though
the person charged of an offence in the complaint might have
a defence, the matter has to be left to be decided by an
E appropriate forum at an appropriate stage. It was further held
that the issue of process can be refused only when the
Magistrate finds that the evidence led by the complainant is self
contradictory or intrinsically untrustworthy.
F
10. In Kewal Krishan v. Sura} Bhan (supra}, this Court
examined the scheme of Sections 200 to 204 and held:
"At the stage of Sections 203 and 204 of the Criminal
Procedure Code in a case exclusively triable by the Court
of Sessions, all that the Magistrate has to do is to see
G
whether on a cursory perusal of the complaint and the
evidence recorded during the preliminary inquiry under
Sections 200 and 202 of the Criminal Procedure Code,
there is prima facie evidence in support of the charge
leveled against the accused. All that he has to see is
H
whether or not there is "sufficient ground for proceeding"
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 685
[G.S. SINGHVI, J.]
against the accused. At this stage, the Magistrate is not A
to weigh the evidence meticulously as if he w~re the trial
court. The standard to be adopted by the Magistrate in
scrutinizing the evidence is not the same as the one which
is to be kept in view at the stage of framing charges."
B
11. The aforesaid view was reiterated in Mohinder Singh
v. Gu/want Singh (supra) in the following words:
"The scope of enquiry under Section 202 is extremely
restricted only to finding out the truth or otherwise of the
allegations made in the complaint in order to determine C
whether process should issue or not under Section 204 of
the Code or whether the complaint should be dismissed
by resorting to Section 203 of the Code on the footing that
there is no sufficient ground for proceeding on the basis
of the statements of the complainant and of his witnesses, D
if any. But the enquiry at that stage does not partake the
character of a full dress trial which can only take place after
process is issued under Section 204 of the Code calling
upon the proposed accused to answer the accusation
made against him for adjudging the guilt or otherwise of E
the said accused person. Further, the question whether the
evidence is adequate for supporting the conviction can
be determined only at the trial and not at the stage of the
enquiry contemplated under Section 202 of the Code. To
say in other words, during the course of the enquiry under
F
Section 202 of the Code, the enquiry officer has to satisfy
himself simply on the evidence adduced by the
prosecution whether prima facie case has been made out
so as to put the proposed accused on a regular trial and
that no detailed enquiry is called for during the course of G
such enquiry."
(emphasis supplied)
12. The use of the word 'shall' in proviso to Section 202(2)
is prima facie indicative of mandatory character of the provision
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A
contained therein, but a close and critical analysis thereof along
with other provisions contained in Chapter XV and Sections
226 and 227 and Section 465 would clearly show that non
examination on oath of any or some of the witnesses cited by
the complainant is, by itself, not sufficient to denude the
B
concerned Magistrate of the· jurisdiction to pass an order for
taking cognizance and issue of process provided he is satisfied
that prima facie case is made out for doing so. Here it is
significant to note that the word 'all' appearing in proviso to
Section 202(2) is qualified by the word 'his'. This implies that
C the complainant is not bound to examine all the witnesses
named in the complaint or whose names are disclosed in
response to the order passed by the Magistrate. In other words,
only those witnesses are required to be examined whom the
complainant considers material to make out a prima facie case
0
for issue of process. The choice being of the complainant, he
may choose not to examine other witnesses. Consequence of
such non-examination is to be considered at the trial and not
at the stage of issuing process when the Magistrate is not
required to enter into detailed discussions on the merits or ,
demerits of the case, that is to say whether or not the
E
allegations contained in the complaint, if proved, would
ultimately end in conviction of the accused. He is only to see
whether there exists sufficient ground for proceeding against
the accused.
F
13. We may now refer to the judgment in Rosy v. State of
Kera/a (supra) on which reliance has been placed by both the
learned counsel. The factual matrix of that case reveals that the
Excise Inspector filed a complaint before Judicial Magistrate,
Thrissur for offences punishable under Section 57-A and 56(b)
G of the Kerala Abkari Act. As the offences were exclusively
triable by the Court of Sessions, the learned Magistrate
committed the case to the Court of Sessions, Thrissur. After
the prosecution examined witnesses, the accused were
questioned under Section 313 Cr.P.C. The public prosecutor
H then filed an application for recalling two witnesses, who were
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 687
[G.S. SINGHVI, J.]
recalled and examined. Thereafter, further statements of the
A
accused under Section 313 were recorded. The accused
examined four witnesses. At that stage, an argument was
raised that the committal order was bad because the
Magistrate did not follow the procedure prescribed in the
proviso to Section 202(2). The learned Sessions Judge opined
B
that there was.breach of the mandatory provision but made a
reference to the High Court under Section 395(2) because he
found it difficult to decide the course to be adopted in the matter.
The High Court held that the order of committal was vitiated due
to violation of the mandate of proviso to Section 202(2). Before . c
this Court, the issue was considered by a two-Judge Bench.
M.B. Shah, J., referred to Sections 200 and 202, the judgment
of this Court in Ranjit Singh v. State of Pepsu AIR 1959 SC
843 and held:
"Further, it is settled law that the inquiry under Section 202
D
is of a limited nature. Firstly, to find out whether there is a
prima facie case in issuing process against the person
accused of the offence in the complaint and secondly, to
prevent the issue of process in the complaint which is
either false or vexatious or intended only to harass such a
E
person. At that stage, the evidence is not to be
meticulously appreciated, as the limited purpose being of
finding out "whether or not there is sufficient ground for
proceeding against the accused". The standard to be
adopted by the Magistrate in scrutinising the evidence is
F
also not the same as the one which is to be kept in view
at the stage of framing charges. At the stage of inquiry
under Section 202 CrPC the accused has no right to
intervene and that it is the duty of the Magistrate while
making an inquiry to elicit all facts not merely with a view
G
to protect the interests of an absent accused person, but
also with a view to bring to book a person or persons
against whom grave allegations are made."
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A
B
c
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Shah, J. then referred to the ratio of the judgment in Kewal
Krishan v. Suraj Bhan (supra) and observed:
"In this view of the matter it is apparent that the High Court
erred in holding that there was breach of the mandatory
provisions of the proviso to Section 202(2) of the Code
and the order of committal is vitiated and, therefore,
requires to be set aside.