# ROSY AND ANR v. STATE OF KERALA AND ORS

- **Citation:** [2000] 1 S.C.R. 107
- **Court:** Supreme Court of India
- **Decided:** 2000
- **Case number:** Criminal Appeal Nos. 18-19 of 2000
- **Bench:** Kt. Thomas, M.B. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rosy-and-anr-v-state-of-kerala-and-ors-17033
- **Pages:** 30

## Headnote

B
Criminal Law .·
Criminal Procedure Code, 1973 :
c
Section 202(2) proviso-Holdi11g of inquiry-By Magistrat~ !11 cases
exclusively triable by Sessions Court-Nature of Discretionary or mandatory-Case committed to Sessions Court without examining any witnesl~bjection regarding non-examination of witnesses by the committal
court raised only at the lWge of final argumenfa· after rewrdmg of prosecution
evidence and statements of accused under s. 313-Validity of-Held : Per D
Thomas, !.; mandatory but omission by itself will not vitiate the proceedings
and if belated objection is taken it has to be decided according to S. 465-Per
Shah, !; discretionary but omission by itself will not vitiate trial unless it is
e1·tablished that prejudice is caused to the accu.1ed--Per curium; since the
objectin11 i~ takrn wher: t11e Ilia/ i.I' almost over the High Court e"ed in
E
directing the Afagfatratr! tn conduct a fresh enquiry and thereafter commit the
case to the Sessions Court-Case remanded to the Sessions Court with the
direction to complete the hearing and dfapose of the case on merits-Kera/a
Abkari Act-lnterpretation of Statutes.
Section 202(2j proviso-Nature of- Mandatory or discretionary--LegisF
lative intent-Detennination of--<.-'riteria fo,._f{eld : Per Thomas, J.; mere
placement of the proviso belows. 202(2) and not belows. 200 is not the only
criterion for discerning the legislative inte11t-lndications can be gathered from
other connected provisions for taking a contrary vieu-{n view of Ss. 204 and
208 and 4lst Report of the Law Commission S. 202(2) proviso is manG
datory--41st Report of the Law Commis.1ion.
Section 207:--Nature of inquiry unde~Standard to be adopted by
Magistrate-Held : Per Shah, J; is of a limited natur~-The standard to be
adopted by the Magistrate in scrutinising the evidence not the same as that
adopted for framing of charge.
H
107
108
SUPREME COURT REPORTS
12cco11 s.c.R.
A
Section 208-Furnishing of documents-To the accused-Held : Per
Thomas, J; it is obligatory for the Magistrate to supply the documents to the
accused free of cost.
Words and Phrases :
B
"Shall fumish''-Meaning of-In the contest of S. 208 of the ()iminal
Procedure Code, 1973.
The Excise Inspector filed a complaint before the Judicial
Magistrate under Sections 56 and 57-A of the Kerala Abkari Act against
C the appellants. As the offences were exclusively triable by the C uurt of
Sessions, the Magistrate committed the case to the Court of Sessions
without examining any witnesse~ although ten persons were named in the
list of witnesses. The appellants-accused did not raise any objection that
the order of committal was wrong due to non-examination of any witness
in the committal court either at the time of commencement of proceedings
D before the Session Court or when charges were framed by the Sessions
Court or even thereafter.
After framing the charge, trial was commenced and prosecution
examined witnesses and thereafter the accused were questioned under
E Section 313 of the Criminal Procedure Code, 1973. Thereafter, certain
witnesses were recalled and examined further statements of the accused
under Section 313 Cr.P.C. were recorded. Even at that stage the accused
did not raise any objection regurding non-examination of the witnesses in
the committal court. Hence, the Sessions Court passed over to the next
stage envisaged in Section 233 Cr.P.C. and directed the accused to enter
F upon his defence. The accused availed themselves of that opportunity and
examined four witnesses on the defence side. It was when arguments were
being heard that the accused raised the objections on the ground that
witnesses were not examined in the committal court as per proviso to
Section 202(2) Cr.P.C.
G
The Sessions Judge made a reference to the High Court under
Section 395(2) Cr.P.C. The appellants challenged this reference order by
filing a revision before the High Court. The High Court directed the
Magistrate to conduct a fresh enquiry in terms of proviso to Secti

## Text

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ROSY AND ANR.
A
v.
STATE OF KERALA AND ORS.
J&"lUARY 10, 2000
[KT. THOMAS AND M.B. SHAH, JJ.]
B
Criminal Law .·
Criminal Procedure Code, 1973 :
c
Section 202(2) proviso-Holdi11g of inquiry-By Magistrat~ !11 cases
exclusively triable by Sessions Court-Nature of Discretionary or mandatory-Case committed to Sessions Court without examining any witnesl~bjection regarding non-examination of witnesses by the committal
court raised only at the lWge of final argumenfa· after rewrdmg of prosecution
evidence and statements of accused under s. 313-Validity of-Held : Per D
Thomas, !.; mandatory but omission by itself will not vitiate the proceedings
and if belated objection is taken it has to be decided according to S. 465-Per
Shah, !; discretionary but omission by itself will not vitiate trial unless it is
e1·tablished that prejudice is caused to the accu.1ed--Per curium; since the
objectin11 i~ takrn wher: t11e Ilia/ i.I' almost over the High Court e"ed in
E
directing the Afagfatratr! tn conduct a fresh enquiry and thereafter commit the
case to the Sessions Court-Case remanded to the Sessions Court with the
direction to complete the hearing and dfapose of the case on merits-Kera/a
Abkari Act-lnterpretation of Statutes.
Section 202(2j proviso-Nature of- Mandatory or discretionary--LegisF
lative intent-Detennination of--<.-'riteria fo,._f{eld : Per Thomas, J.; mere
placement of the proviso belows. 202(2) and not belows. 200 is not the only
criterion for discerning the legislative inte11t-lndications can be gathered from
other connected provisions for taking a contrary vieu-{n view of Ss. 204 and
208 and 4lst Report of the Law Commission S. 202(2) proviso is manG
datory--41st Report of the Law Commis.1ion.
Section 207:--Nature of inquiry unde~Standard to be adopted by
Magistrate-Held : Per Shah, J; is of a limited natur~-The standard to be
adopted by the Magistrate in scrutinising the evidence not the same as that
adopted for framing of charge.
H
107
108
SUPREME COURT REPORTS
12cco11 s.c.R.
A
Section 208-Furnishing of documents-To the accused-Held : Per
Thomas, J; it is obligatory for the Magistrate to supply the documents to the
accused free of cost.
Words and Phrases :
B
"Shall fumish''-Meaning of-In the contest of S. 208 of the ()iminal
Procedure Code, 1973.
The Excise Inspector filed a complaint before the Judicial
Magistrate under Sections 56 and 57-A of the Kerala Abkari Act against
C the appellants. As the offences were exclusively triable by the C uurt of
Sessions, the Magistrate committed the case to the Court of Sessions
without examining any witnesse~ although ten persons were named in the
list of witnesses. The appellants-accused did not raise any objection that
the order of committal was wrong due to non-examination of any witness
in the committal court either at the time of commencement of proceedings
D before the Session Court or when charges were framed by the Sessions
Court or even thereafter.
After framing the charge, trial was commenced and prosecution
examined witnesses and thereafter the accused were questioned under
E Section 313 of the Criminal Procedure Code, 1973. Thereafter, certain
witnesses were recalled and examined further statements of the accused
under Section 313 Cr.P.C. were recorded. Even at that stage the accused
did not raise any objection regurding non-examination of the witnesses in
the committal court. Hence, the Sessions Court passed over to the next
stage envisaged in Section 233 Cr.P.C. and directed the accused to enter
F upon his defence. The accused availed themselves of that opportunity and
examined four witnesses on the defence side. It was when arguments were
being heard that the accused raised the objections on the ground that
witnesses were not examined in the committal court as per proviso to
Section 202(2) Cr.P.C.
G
The Sessions Judge made a reference to the High Court under
Section 395(2) Cr.P.C. The appellants challenged this reference order by
filing a revision before the High Court. The High Court directed the
Magistrate to conduct a fresh enquiry in terms of proviso to Section 202(2)
by examining all the witnesses and thereafter to commit the case to the
H Sessions Court.
ROSY v. STATH
109
In the appeal before this CPnrt it was contended on behalf of the
accused persons that proviso to Section 202(2) Cr.P.C. was mandatory and
as that was not complied with by the Magistrate, the accused ought to have
been discharged and there should not have been any direction to face
enquiry under Section 202 Cr.P.C ..
Allowing the appeal, this Court
(Per Shah, J.)
A
B
HELD : 1. Under Section 200 read with Section 202 of the Criminal
Procedure Code, 1973 it is only at the discretion of the Magistrate to decide
C
whether to hold an inquiry or not before issue of process to the accused.
Therefore, the question of complying with the proviso to Section 202(2)
Cr.P.C. would arise only in cases where the Magistrate before taking
cognizance of the case decides to hold the inquiry and secondly in such
inquiry by him, if he decides to take evidence of witnesses 011 oath. But the
object and purpose of holding inquiry or investigation under Section 202 D
is to find out whether there is sufficient ground for proceeding against the
accused or not and that holding of inquiry or investigation is not an
indispensable course before issue of process against the accused or dbmissal of the complaint. It is an enabling provision to form an opinion as
to whether or not process should be issued and to remove from his mind E
any hesitation that be may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence 011 oath.
[114-D-E]
Ranjit Singh v. State PEP SU (now Punjab), AIR (1959) SC 843, relied
on.
2.1. Further, it is settled law that the inquiry under Section 202 is of
a limited nature. Firstly, to find out whether there is prim a f acie case in
issuing process against the person accused of the offence in the complaint
F
and secondly, to prevent the issue of process in the complaint which is
either false or vexatious or intended only to harass such a person. At that G
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 also not the same as the one,
which is to be kept in view at the stage of framing charges. At the stage of H
110
SUPRhMr. COU!C REPORTS
[20COJ l S.C.R.
A inquiry under Section 202 Cr.P.C. accused has no right to intervene and
that it is the duty of the ~agistrate while making an enquiry to elicit all
facts not merely with a view 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. (120-B·Dl
B
Chandra Deu Singh v. Prakash 01andra Bose, [1964] 1 SCR 639;
Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, [1961] l SCR 1;
Pramatha Nath Taluqdar v. Saruj Ran/an Sarkar, [1962] Supp. 2 SCR 297;
Ninnaljit Singh Houn v. State of West Bengal, [1973] 2 SCC 753; Mohinder
Singh v. Gu/want Siw;h, [1992] 2 SCC 213 and Kewal Krishun v. Suraj Bhan,
C [1980] Supp. SCC 499, relied on.
2.2. The High Court erred in holding that there was breach of mandatory provisions of the proviso to Section 202(2) Cr.P.C. and the order of
committal is vitiated and, therefore, requires to be set aside. The High
Court failed to consider proviso to Section 200, particularly proviso (a) to
D the said Section and abo the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or to
dismiss the complaint (under Section 203). Under Section 200, on receipt
of the complaint, Magistrate can take cognizance and issue process to the
accused. If the case is exclusively triable by the Sessions Court, he is
required to commit the case tu the Court of Sessions [ 121-E-FJ
E
3.J. However, in cases where enquiry is held, failure tu comply with
the statutory direction to examine all the witnesses would not vitiate further
proceeding in all cases for the reason that in view of Section 465 Cr.P.C. it
would also depend upon the facts of each case depending upon the
p
prejudice caused to the accused by non-compliance of the said proviso
(Section 465). [123-CI
3.2. But a person complaining of such irregularity should raise ob·
jection at the earlier stage and be should point out how prejudice is caused
or is likely to be caused by not following the proviso. If he fails to raise such
G objection at the earlier stage, he is precluded from raising such objection
later. [126-E]
M.Ci. Pillai v. T Pillai, (1983) Crl.L.J. 917 (Mad.), approved.
Moideenkutcy Haji v. Kunhikuya, ( 1987, I KLT 6U (Ker.; (PB) and
H Sulaiman v. Eachara Wanier, (1978) KLT 424 (Ker.), referred to.
ROSY v. S"IATE
111
4.1. It is no doubt true that by the use of the words 'shall', it appears A
that language used in the proviso to Section 202(2) is itself a discretionary
one · giving option to examine or not to examine witnesses on oath. Hence,
proviso to Section 202(2) is required to be read accordingly. Normally, the
procedure prescribed therein should be followed, but non· observance of
the said procedure may not vitiate further proceedings in all cases. In a
case where a complaint is filed, not by the public servant, and where the
offence is exclusively triable by the Court of Sessions, the Magistrate
should follow the proviso to Section 202(2) and call upon the complainant
B
to produce all his witnesses and examine them on oath. However, in a case
where complaint is filed by a public servant after holding inquiry and
recording the statements, question of recording of each evidence may not C
arise. Hence, compliance of proviso by the Magistrate in all Sessions triable
cases is not a must and would not vitiate the further trial unless prejudice
caused to the accused is established. [123-G-H, 124·A·D)
4.2. Further, the aforesaid interpretation would be in consonance
with Chapter XXXV of the Cr.P.C., which deals with irregularities in the D
proceedings, which may or may not vitiate the proceeding. Sections 460 and
461 provide which irregularities would or not vitiate the proceedings. In
these Sections, there is no mention of Section 202. Moreover, during inquiry
under Section 202 when the Magistrate examines the witnesses on oath, as
far as possible proviso to Section 202 is to be complied with but the mandate is not absolute in view of provisions of Section 465 Cr.P.C.
Ll24-J<:-H, 125-AJ
4.3. The part of holding inquiry is a procedural one and, therefore,
even what is regarded, as mandatory traditionally may, perhaps have to be
moderated into wholesome directions to be complied with in time or in
extended time. [125-B]
State of Punjab v. Sham/al Murari, [1976] 1 SCC 719, relied on.
E
F
5. The High Court failed to notice the provisions of Section 465
Cr.P.C. as the objection with regard to such error, omission or irregularity
in the committal order was required to be raised at the earlier stage. After G
committal order in the case, the trial was almost over as evidence of the
prosecution witnesses was recorded by the Sessions Court, the statements
of the accused under Section 313 Cr.P.C. were also recorded, thereafter
witnesses were recalled and examined, further statements were recorded
and only at the stage of arguments the contention with regard to the H
112
SUPRflvlE COliRI J{hPORTS
[200U[ I S.C.R.
A so-called irregularity was raised, whicb is upheld by the Sessions Court
and the High Court. In the background of these facts, it has to be held that
holding of fresh inquiry under Section 202 would be totally um1ecessary in
the present case and thereaUer to commit the case again to the Sessions
Court. The Sessions Court is directed to complete hearing of arguments
and dispose of the case on merits in accordance with law. [ 126-(;-H, 127-AJ
B
(Per Thomas, J. concurring with the conclusions but disagreeing on
the question whether proviso to Section 202 is mandatory or directory) :
I. The questim1 of examining all witnesses would arbe only when the
C Magistrate opts tu hold an inquiry, otherwise not. This appears, prima
facie, from Section 202(2) of the Criminal Procedure Code, 1973. However,
the question is when the trial is exclushely triable by the Court of Sessions
whether the proviso to Section 202(2) b mandatory or discntionary. The
answer would not have been dillicult if one goes by the placement of the said
proviso alone, as it can then be said that inquiry is not a must. If the said
D proviso were Jllaccd in Section 200 of the Code even a doubt that the
legislative idea is to have all witnesses examined by the ~lagbtrate when
the o!Ience complained of is triable exclusively by the Court of Sessions
would have been db placed. Nonetheless the placement of the proviso is not
the only criteria in dbcerning the legislafoe intent. Indications can be
E gathered from other t'Oimeded provbions for tailing a contrary "iew.
113 l -I·, !-I, 132-Al
2. Three categories of documents are mentioned in Section 208
Cr.P.C. the copies of which the Magistrate, who proceeds from the stage
in Section 204, has to supply to the accm.ed free of cost (in a complaint
F case involving an offence triable exclusively by a r ourt of Sessions l. As the
words used here art: "shall furnish", it is almost a compelling duty on the
Magistrate to supply the said documents to the accused. It is not possible
for the Magistrate to com ply with the provisions of Session 208 in a case
where he failed to examine the witnesses before issuing process to the
accused. [132-H, 133-A-B]
G
3.1. Section 209 Cr.P.C. enjoins on the ~Iagistrate to commit the case
to the Court of Sessions after complying with the provbions in Section 208 ·
of the Code. In the Sessions Court a Publk Prosecutor alone can conduct
prosecution, whether the case was instituted rm police report or on comH plaint. Section 226 requires the Public Prosecutor to open the case and
... -
KUSY v. STA TF
113
state by what evidence he proposes to prove the guilt of the accused.
[133-G, 134-D-E]
3.2. If case instituted on complaint is committed to the Court of
Sessions without complying with the requirements of Section 208(i) of the
Code it would not be possible for the public prosecutor to know in advance
what evidence he can adduce to prove the guilt of the accused. If no inquiry
under Section 202 is to be conducted a Magistrate who decides to proceed
only on the averments contained in the complaint liled by a public servant
(who is not a witness to the core allegation) and such a case is committed
to the Court of Sessions, its inevitabfo consequence would be that the
Sessions Judge has to axe down the case at the stage of Section 226 itself.
[134-C-D]
A
B
c
4.1. This Court had already taken the stand that it would be advantageous to look into the deliberations made in the legislature, the Objects and Reasons for the enactment including the recommendations of the
Law Commission for the purpose of discerning the legislative idea behind
inclusion of any particular provision. [ 135-E]
D
Santa Singh v. State of Punjab, [1977] 1 SCR 229 and Mithile~h
Kumari v. Prem Behari Khare, [1989] 2 SCC 95, relied on.
4.2. Regarding Section 202 of the Code, Parliament has taken the cue
from the Law Commission Recommendation and introduced all the
parameters in accordance with such recommendations. That is yet another
factor, which lends support to the interpretations given above. [135-H]
5.1. Thus there is no doubt that the proviso to Section 202 of the Code
E
is nut merely incorporated to confer a discretion on the Magistrate, but a
F
compelling duty on him tu perform in such cases. The Magistrate in such
sltuation is not obliged to examine witnesses who would not be produced
by the complainant when asked to produce such witnesses. [136-B)
5.2. If the Magistrate omits tu cum ply with the above requirement
that would not, by itself vitiate the proceedings. If no objection is taken at
the earlier stage regarding such omission the court can consider how far
such omission would have led to miscarriage of justice, when snch objection is taken at a lat~r stage. A decision on such belated objection can be
taken by bearing in mind the principles adumbrated in Section 465 of the
G
Cude. [136-C-D]
H
114
SUPREME COURT REPORTS
[2000] I S.C.R.
A
6. In the present case, the stage had passed long ago for the accused
or the prosecution to have raised objections that the commi°ttal order was
vitiated due to non-examination of the witnesses before the Magistrate
issued process to the accused. Even if there was any such omission before
process was issued the accused cannot raise it as an objection for the first
time at the fag end of a long drawn trial in the Sessions Court is view of
B Section 465 of the Code. [129-B]
7.1. When the accused have chosen not to raise objection on the
premise of omission to examine witnesses before process was issued by the
Magistrate, it must be taken that they had no grievance that such omission
C had occasioned failure of justice. Even if they had taken such objection
after committal of the case to the Sessions Court there was no need to turn
the switchboard backwards as there is no scope for believing that such
omission had occasioned failure of justice. This is because no evidence of
any witness would be used in the trial court unless such witness was ex·
amined in the trial court and the accused is afforded reasonable opporD tunity to cross-examine him. (130-C-D]
E
F
G
Kalpanath Rai v. State, [1997) 8 SCC 732, relied on.
Moideenkutty Haji v. Kunhikoya, (1987) 1 KLT 635 and State of Kera/a
v. Balakrishnan, (1991) 2 KLT 323, referred to.
7.2. The impugned order passed by the High Court is set aside and
the Sessions Judge is directed to dispose of the case on merits.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 18-19 of 2000.
From the Judgment and Order dated 7.6.99 of the Kerala High Court
in Crl.R. No. 2 of 1999,
Verghese Kalliath and M.T. George for the Appellants.
G. Prakash for Respondent No. 1.
The Judgments of the Court wt:re delivered by
SHAH, J. Leave granted
These appeals by special leave are filed against the common judgH ment dated 7.6.1999 passed by the High Court of Kerala in Cr!. Reference
__/
ROSY v. STATF [SHAH, l:
115
... No. 2 ol 1999 and Criminal R.P. No. Hm of 1998. A Division Bench of A
the High Court quashed the committal order in Sessions Case 'lju. 39 of
1990 pending before the Sessions Court, Trissur and dirt:cted the
Magistrate tu conduct a frt:sh enquiry in terms of proviso to Section 202
(2) Criminal Prucecdun: Code (for Short "the Cod.:;) and thaeafter to
pass an order of committal tu the Sessions Court.
The criminal proceedings wherein it is alkged that methyl alcohol
was present in the arrack, tht: sampk of which was taken by an Excise
Inspector on 26.2.1988 and which arc p.:nding since November, 1989 are
being unduly dclay..:d on one account or the other including a rdcrence
made by the Sessions Judge and tht directions now issued by the High
Court. The Excise Inspector after completing tht: the enquiry filed a
complaint before a Judicial Magistrate, Trissur on 16.11.1989 for offences
punishable under Sections 57-A and 56(b) of the Kerala Abkari Act (for
short 'the Act'). As the offences are exclusively triable by the court of
Sessions, the k:arncd Magistrate by his order dated 26.SJ 990 committ.:d
the case tu the court of Sessions, Trissur. After framing the charge, trial
was commenced and prosecution examined witnesses and thereafter the
accused were questioned under Section 313 of the Code. Public Prosecutor
then filed an applil.:ation for recalling PW s 4 and 5, and they were recalled
and examined; further statements of the accused under Section 313 of the
Code were recorded. Thereafter accused examined PWs 1 to 4 and it was
during the course of arguments that the counsd for the accused raised the
contention that the Magistrate errt:d in not following the procedure
prescribed in proviso to Section 202 (2) of the Code before plll>sing
committal order dated 26.5.1990. After hearing both the sides, the learned
Sessions Judge arrived at the conclusion that there was breach of mandatory provisions and consequently prt:judice was caused tu the accused.
He found it difficult to decide as to which further course was required to
be followed and, therefore, he made a reference to the High Court under
Section 395(2) of the Code.
B
c
D
E
F
That case was numbered as Crl. Reference No. 2 of 1999. The
accused fikd Crl. R.P. ~o. 1035 of 1998 against the reference order. Both G
matters w.:re disposed of by the High Court as per the impugned judgment.
The High Court arrived at the conclusion that proviso to Section 202 (2)
is mandatory, thcr .!fore, non- examination of the witnesses at that stage
would rewlt in substantial failure of :ustm: and hence tht urdtr of committal was vitiated. The Magistrate was din:ch:d to conduct a fresh enquiry H
ll6
SUPREME COURT REPORTS
[2000] I S.C.R.
A in terms of proviso tu Section 202 (2) by examining all the witnesses <ind
thereafter to commit the case to the Sessions Court. That order ts under
challenge now befon: this Court.
The learned counsel fur the appdlants submitted that proviso tu subsection (2) of Section 202 Cr.P.C. is mandatory and as that was not
B complied with by the ~Iagistrate, accused ought to haw been acquitted and
the Court ought to have directed to drop the proceedings. It is contended
that a post trial enquiry by the committing Magistrate after framing of
charges by the Sessim1s Judge does not serve the purpose and object as
contemplated under Section 202 Cr.P.C. Hence, accused ought to have
C been discharged and there should not have been any direction to face a
farce of fresh enquiry under Section 202 Cr.P.C.
Learned Counsd for the State fairly agreed with the submission of
the learned counsel for the appellants that there was no necessity for
holding a fresh enquiry under Section 202 Cr.P.C. and a direction to
D commit the case to the Sessions Court in view of the fact that Sessions trial
was practically already over. The High Court ought to have directed the
Sessions Court to hear the arguments and to pass the judgment according
to law. According to him the scheme of Section 202 (2) Cr.P.C. clearly
reveals that it is the discn:tion of the Magistrate whether or not to hold
E the enquiry before committing the case to the Sessions Court.
We agree with the submission of learned counsel for the appellants
that the order passed by the High Court to hold fresh enquiry under
Section 202 (2) of the Code was unnecessary because (1) under Section
200 read with Section 202 Cr.P.C., it is only at the discretion of Magistrate
F to decide whether to hold an inquiry or not before issue of process to the
accused; (2) the High Court as well as the Sessions Court failed to notice
the provisions in Section 465 of the Code while considering the contention
raised by the defence counsel.
G
For appreciating the contention raised by the learned counsel, we
would first refer to Sections 200 and 202 Cr.P.C., which are as under :
H
"200. Examination of complaint - 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
ROSYv STATE[SI-IAH,J.;
117
by the complainant a11d the witnesses, and also by the Magistrate:
A
Provided 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 pwpo1ting to act in the discharge
of his official duties or a Court has made the complaint; or
B
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192 :
Provided further that if the Magistrate makes over the case to
another Magistrate under section 192 after examining the comC
plainant and the witnesses, the latter Magistrate need not reexamine them.
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 him under section D
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 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
examim:d on oath under section 200.
E
F
(2) In an inquiry under sub-section (1), the Magistrate may, if G
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.
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B
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[2000] 1 S.C.R.
(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 Cude on an officer in charge of a
police station except the power to arrest without warrant."'
(Emphasis added)
The aforesaid Section 200 requires a Magistrate taking cognizance
of an offence on a complaint to examine upon oath the complainant and
the witnesses present, if any. The proviso to the said section carves out an
exception in cases where a complaint is filed by a public servant acting or
C purporting to act in the discharge of his official duties or in cases where
the Court has made the complaint. ln such case complainant and witnesses
need not be examined. ln such cases, if he is satisfied that there is sufficient
ground for proceeding, he can straightway issue process. At this stage, the
Magistrate has thn:e options :
D
(i)
to issue process on the basis of complaint, if he 1s satisfied
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that there is sufficit:nt ground for proceeding against the
accused (Sec. 204); or
(ii) to dismiss the complaint (Sec. 203); or
(iii) to hold an enquiry -
(a)
by himself, or
(b)
by directing investigation by the Police Officer,
( c)
or by other person, for the purpose of deciding whether
or not there is sufficient ground for proceeding.
It is only if th.: Magistrate decides to hold the inquiry the proviso to
sub-section (2) of Si.:ction 202 would come into operation. If the offence is
triable exclusively by the court of Session&, the Magistrate himself has to
G hold the inquiry and no direction for investigation by police shall then be
made. Inquiry can be held for recording evidence on oath and if he thinks
fit. Sub- section (2) of Section 202 gives discretion to the Magistrate to
record evidence of witnesses on oath. To this discretionary power, the
proviso carves out an exception. lt provides that for the offence triable
H exclusively by the court of Session the Magistrate shall shall call upon the
•
ROS)' v. STATE [SHAH, J.]
119
complainant to produce all his witnesses and examine them on oath. Then
A
the next stage after holding inquiry is passing of appropriak ordt:r of either
dismissal of the complaint or issue of process. That is provided under
Sections 203 and 204 of the Code. Hence, on receipt of the complaint, the
Magistrate by following the procedure prescribed under Section 200 may
issue process against the accused or dismiss the complaint. Section 203
specific lly provides that after considering the statement on oath, if any, of B
the complainant and witnesses and the result of the inquiry or investigation,
if any, under Section 202, the Magistrate is of the opinion that there is no
sufficient ground for proceeding, he shall dismiss the complaint. For dismissal of complaint, he is required to briefly record his reasons for so
doing. In other cases, he has to issut: process i.e. either summons or
warrants as the case may be as provided under Section 204. However, no
summons or warrant is to be issued against the accused until a list of the
prosecution witm:ssess has been filed. Therefore, the question of complying
c
with the proviso to sub-section (2) of Seetion 2C2 would arise only in cases
where the Magistrate before taking cognizance of the case decides to hulu D
the inquiry and secondly in such inquiry by him, if he decides tu take
evidence of witnesses on oath. But the object and purpose of holding
inquiry or invt:stigation under Section 202 is to find out whether there is
sufficient ground for proceeding against the accused or not and that
holding of inquiry or investigation is not an indispensable course befon: E
issue of process against the accused or dismissal of the cqmplaint. It is an
enabling provision to form an opinion as to whether or not process should
be issued and to remove from his mind any hesitation that he may have felt
upon the mere perusal of the complaint and the consideration of the
complainant's evidence on oath.
In a case, Ranjit Singh v. T71e State of Pepsu (now Punjab, AIR (1959)
SC 843, when: the Sub-Inspector uf Police was convicted under Section 193
IPC by First Class Magistrate, it was contended that the procedure adopted
F
by the Magistrate was erroneous because he did not hold an enquiry as
required under Sections 200 and 202 of the Code. This Court n<.:gatived
G
the said contt:ntion and held thus :
"That cont.:ntion is equally untenable because under Section 200
proviso (aa) it is not m:cessary for a Magistrate when a complaint
is made by a Court to examine the complainant and m:ither Section H
120
SUPREME COUR !'REPORTS
l2COOJ 1 S.C.R.
A
200 nor Section 202 requires a preliminary enquiry before the
Magistrate can assume jurisdiction to issue process against the
person complained against."'
· ·
Further, it is st:ttled :aw that the inquiry under Section 202 is of limited
B nature. Firstly, to find out whether there is prim a f acie 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 intt:nded only to harass such a person. At that stage,
the evidrnce is not to be meticulously appreciated, as the limited purpose
being of finding out ·whether or not there is sufficient ground for proceedC ing against the accused''. The standard to be adopted by the Magistrate in
scrutinising the evidrnce is 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 Cr.P.C. accused has no right to intervene and that it is the duty
of the Magistrate while making an enquiry to elicit all facts not merely
D with a view 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. (Re : Chandra Dea Singh v. Prakash Chandra Bose
& Anr., (1964] 1 SCR 639, Vadilal Panchal v. Dattatraya Dulaji
Ghadigaonker, I 1961] l SCR 1, Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar, 11962] Supp. 2 SCR 297, Nirmaljit Singh Hoon v. The State of West
E Bengal and Another, [1973] 3 SCC 753 andMohinder Singh v. Gu/want Singh
and Others, (1992) 2 SCC 213.
This Court in Kewal Krishan v. Suraj Bhan and Another, (1980) Supp.
sec 499, dealt with the case where instead of finding out prima facie case
F made out against the accused, the Magistrate passed an order by
meticulously appreciating the evidence in a case exclusively triable by a
Sessions Court, at tht: stage of Sections 203 and 204. The Court hdd that
the Magistrate committed an irregularity by exceeding his jurisdict10n and
observed thus :
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H
"At the stage of Sections 203 and 204, Criminal Procedure Code
in a case exclusively triable by the Court of Session, all that the
Magistrate has to do is to see "whether on a cursory perusal of the
complaint and the evidence recorded during the preliminarv jqquiry under Sections 200 and 202. Criminal Procedure Code, ttrere
is prim a f acie evidence in support of the charge levelled against
ROSYv. STATE[SHAH.J.i
121
the accused. All that he has to st:e is whether or not then: is A
''sufficient ground for proceeding against the accused."
The Court further made it ckar thus :
"At this stage, the Magistrate is not to weigh the evidence
meticulomly as if he were the trial Court. The standard tu be
B
adopted by the Magistrate in scrutinising the evidence is not the
same as the one which is to be kept in view at the stage of framing
charges. The standard of proof and judgment, which is to be
applied finally before finding the accused guilty or otherwise is not
exactly to be applied at the stage of framing charges. A fortiori, at
C
the stage of Sections 202/204, if there is prima facie evidence in
support of the allegations in the complaint relating to a case
exclusively triable by the Court of Session, that will be a sufficient
ground for issuing process to the accused and committing them
for trial to the Court of Session."
In this view of the matter it is apparent that the High Court erred in
holding that there was breach of mandatory provisions of the proviso to
Section 202 (2) of the Code and the order of committal is vitiakd and,
therefore, requir ..;s to bt: '"t aside. The High Court faikd to curn,ider
proviso to St:ction 200, particularly proviso (a) tu the said Section and also
tht: fact that inquiry under Section 202 is di,crdionary for dc:ciding whdht:r
to issue prnct:ss (under Section 204) or to dismi" the complaint ( undt:r
Section 203). Under Section 200, on receipt of the complaint, Magistrate
can take cognizance and issue process to the accused. If the case is
exclusivdy triable by the Sessions Court, he is rt:quired to commit the case
to tht: court of Sessions.
However, the learned counsd fur the appellants vehemently submitted that in a case of complaint where the case is exclusively triable by
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the court of Session, the Magistrate must follow the mandate of proviso to
sub-section (2) and examine the complainant and his witnesses on oath G
before committing the case tu Sessions Court as this would give protection
to the accused because he would he in a position to know the case against
him and the evid;;;nce rdi;;;d upon by the complainant in support of his case.
He relied upon a Full Bench decision of the Kcrala High Court in
Moideenkutty Haji & Ors. v. Kunhikoya & Ors., (1987) 1 K.L.T. 635. The H
122
SUPREME C '.OURT REPORTS
[WOO[ l S.C.R.
A question involved in that case was whether it is mandatory that a
Magistrate, before issuing process to the accused on a complaint disclosing
an offence which is exclusively triable by a Court of Session, shall call upon
the complainant to produce all his witnesses and examine them on oath. A
Division Bench of the Court in Suluimun v. Eachura Wanier, (1978) KLT
B 424 had takt:n the view that it is not mandatory since th1:: duty to conduct
an enquiry under S. 202 (1) of the Code of Criminal Procedure itself is
only discretionary. The correctness of that view was doubted and hence the
question as wdl as the cases had been referred to the Full Bench. The
Court referred to various decisions ot Kerala High Court wherein a view
C was taken to the effect that an inquiry under Section 202 ( 1) is desirable
in complaint cast: which involves offonce t:xclusively triable by the court of
Sessions. It is only discretionary and the obligation to comply with the
proviso to Section 202 will arise only when Magistrate exercises his discretion to hold an inquiry. The Court also referred to other decisions of
various High Courts where the same view was taken and also decisions
D where the contrary view was taken. The Full Bench referred to objects and
purposes recommended by the Law Commission for the m:w provll.ion of
Section 202 in the Act and finally held that in a complaint case the inquiry
under Section 202 by the Magistrate into the truth of the complaint is made
mandatory and in a way it is intended to take the place of inwstigation by
E the police. This ~afeguard must be to take the place of the preliminary
inquiry proceedings provid~d in the old Code and that sub-section (2)
together with tht: proviso must ht: rt:ad a~ a proviso to Section 202. When
it is so read, the ob.iects underlying in the scheme of Chapter XV can be
bt:tter served.
F
The Madras High Court in M.G. Pillai v. T. Pillui, (198:'\) Cr!. L.J.
917 has held that order of committal passed under Section 209 by the
Magistrate taking cognizance of an offence under St:ction 2CO and thereafter straightway i;ssuing process under Section 204 is a valid committal
order and that cannot be challengt:d as illegal on the ground that
G Magistrate has not availed himself of an inquiry under Section 202. However, the Court further held that onct: tht: Magistrate decides to follow
Section 202, which is an enabling provision, the proviso to Section 202 (2)
would come into operation, which makes it obligatory for Magistrate to call
upon the complainant to produce all his witnesses and examim: them on
H oath; the failurt: on his part to comp!)' with the statutory direction given
>
)
ROSYv. S'lATE(SHAfi,J.]
123
under the said proviso would vitiate the further proceedings taken by him. A
We agree with the conclusion of the Madras High Court to the cfft:ct
that Section 202 is an enabling provision and it is a direction of the
Magistrate depending upon the facts of each case, whethcr to issue process
straightway or to hold the enquiry. However, in case when: enquiry is held,
failure to comply with the statutory direction to examine all the witnesses
would not vitiate further proceeding in all cast:s for the reasons that (a) in
a complaint filed by a Public servant acting or purporting to act in discharge of his official dutit:s, the question of holding inquiry may not arise,
(b) whether to hold inquiry or not is discretionary jurisdiction of the
Magistrate, ( c) even if he decided to hold inquiry it is his further discrttion
to examine the witnesses on oath.. lf he decides to examine witnesses on
oath in a case triable exclusively by tht: court of Session, he shall call upon
the complainant to produce all his witnesses and examin1C them on oath,
B
c
( d) it would also depend upon facts of each case depending upon the
prejudice caused to the accused by nun-compliance of the proviso (Sec. D
465), and ( e) that the objection with rngard to non .. compliance of proviso
should be taken at the earlier stage when the charge is framed by the
Sessions Court.
At initial stage, if objection is raised and it i' found by the Sessions
Court that by nun-holding uf inquiry, prejudice is caused tu the au used,
he may dirnct tht: Magistrate' to foltuw the proc.edurn prescribed under the
proviso. lt is no doubt true that by the ust: of the words "shall", it appears
that language ust:d in the proviso is of mandatory nature. At the same time,
it is a procedural law and it is to be read in context of Section 2CQ which
enables the Magistratt: to issue process without holding any inquiry and
that inquiry under St:ction 202 is itsdf discrt:tionary one - giving option to
examine or not to examine witnesses. Hence, proviso to the said sub-section
is required to be read accordingly though couched in mandatory term by
using tht: word 'shall'. Normally, the procedure prt:scribed therein should
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be followed, but non-observance of the said procedure may not vitiate
further proceedings in all cases.