K SATHYANARAYANA KAMATH Vs. REVANAPPA

JUDGEMENT

(1.) This is a petition by the complainant against the order dated 14/3/1986 passed by the Sessions Judge, Shimoga, in S.C. 21/84 refusing to interfere with the order dated 26/3/1984 passed by the Chief Judicial Magistrate, Shimoga in C.C. 57/82. On a private complaint filed by the petitioner on 24/4/1982, the Chief Judicial Magistrate, as can be seen from the order-sheet dated 27/4/1982, recorded the sworn statements of the complain ant and his one witness and ordered the registration of the case and issued process against the accused persons for the offences under sections 395, 354 and 323 read with section 149 I.P.C. That order issuing process was challenged by the accused persons in criminal revision petition No. 343/82. This Court set aside the said order issuing the process on the ground that the court without taking cognizance initially had proceeded to record the sworn statements of the complainant and his witnesses, and sent back the case to the court of C.J.M., Shimoga for disposal according to law. After the case was sent back, the Chief Judicial Magistrate again recorded the sworn statements complainant and his one witness and issued process for the offences under sections 395, 354 and 323 read with section 149 I.P.C. Ultimately the proceedings dragged on in the court of the Chief Judicial Magistrate. He, by his order dated 26/3/1984, committed the case to the Court of Sessions. After the case was committed to the Court of Sessions, the complainant filed an application in the Sessions Court to quash the commitment and to remand the matter to the Magistrate for enabling him to examine all the witnesses. This application was rejected by the Sessions Judge. Hence this revision.

(2.) A question arose before this Court in Naganagouda v Kamalaxi1, as to whether in cases exclusively triable by the Court of Sessions, it was incumbent on the complainant to examine him and all his witnesses. In the said case Kudoor, J. held: The opening expression in sub-section (2) in an enquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath positively that subsection (2) shall come into play only in a case where the Magistrate decides to hold an enquiry under sub-section (1). In this view of the matter, the proviso to sub-section (2) shall also given an enquiry stipulated under sub-section (1) and it cannot be said that this proviso controls section 200 of the Code It is not obligatory for the Magistrate to invariably take recourse to the proviso to sub-section (2) where the offence complained of is triable exclusively by the Court of Sessions. Certainly he is empowered to deal with the case where the offence complained of is triable by the Court of Sessions by adopting the procedure laid down under section 200 and take appropriate decision as required under section 203 or under sub-section (1) of section 204 of the Code. It is further held as To illustrate, that in a given case if the offence complained of is exclusively triable by the Court of Sessions and on examining the complainant and his witnesses on oath as required under section 200 of the Code if the Magistrate were to come to the conclusion that there is no sufficient ground to proceed with or that there is sufficient ground for proceeding certainly he could decide the matter as required under section 203 or sub-section (1) of section 204 of the Code as the case may be. It cannot be said that in a case where the offence complained of is exclusively triable by the Court of Sessions, the Magistrate is required to call upon the complainant to produce all his witnesses and examine them on oath. In Nagana Gouda's case, Kudor, J. has referred to Ramanatha v. State and others, wherein it was held:

(3.) However, in a latter case Abdul Khader v. Mohammed Faizuddin. Patil J. while dealing with this question has held: In a case instituted on a private complaint, where the offences alleged are exclusively triable by a Court of Sessions, it is not only not permissible for the Magistrate to direct investigation by the police as provided under section 156(3), or section 202 but it is also obligatory on him to call upon the complainant to produce all his witnesses and examine them on oath as provided under proviso to sub-section (2) of section 202 Cr. P.C. before issuing process under section 204. The Magistrate has also no jurisdiction to appreciate the evidence of the witness in such a, case to reach any conclusion if the offences disclosed are triable by the Magistrate. That is exclusively the function of the Sessions Judge. After issue of process, the only judicial function that the Magistrate is called upon to do is one indicated in Section 208 Cr. P.C. to furnish to the accused, free of cost, a copy of each of-(i) statements recorded under section 200 or section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 161 or section 164; and (iii) any documents produced before the Magistrate on which the prosecution proposed to rely; provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thoreof, direct that he will only be allowed to inspect it either personally or through pleader in Court. Thereafter commit the case to the Court of Sessions and it is for the Sessions Judge to appreciate the evidence so recorded by the Magistrate and to find out whether any such case exclusively triable by the Court of Sessions is or not made out. In the absence of evidence of all the witnesses, it would also be not possible to the Sessions Judge to appreciate the contentions urged before him. Therefore, failure on the part of the Magistrate to call upon the complainant to file the list of witnesses and examine all such witnesses sought to be examined not only tantamounts to violation of provisions of section 202, but it is also prejudicial to the case of the accused. In short, Patil, J. held that in the case of offences exclusively triable by the Court of Sessions, it is incumbent on the Magistrate to examine the complainant and all his witnesses without fail before the Court reaches the stage where it considers whether the process should be issued or not. No reference has been made in the said Ahbul Khaders case to the judgment reported in Ramanatha v. State case (supra) or to the judgment reported in Gouda v. Kamalaxi, case (supra).