MOIDEENKUTTY HAJI Vs. KUNHIKOYA

JUDGEMENT

(1.) These cases have been referred to a Full Bench to decide the question 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 this Court in Sulaiman v. Eachara Warrier ( 1978 KLT 424 ) took the view that it is not mandatory since the duty to conduct an enquiry under S.202(1) of the Code of Criminal Procedure (for short 'the Code') itself is only discretionary. The correctness of that view is doubted and hence the question as well as the cases have been referred to the Full Bench.

(2.) Crl. MC 974 of 1984 arose our of a complaint filed by the respondent before the Judicial Second Class Magistrate, Parappanangadi against the three petitioners. The complaint is in protest against a police report in a murder case in which only two of the petitioners were made accused. Crl. MC 17 of 1985 is against a private complaint filed by the respondent before the Judicial First Class Magistrate, Payyannur against the petitioner which was taken to file as CP 22 of 1984 for offences punishable under S.313 and 493 of the Indian Penal Code.

(3.) In both cases, the common question for consideration is, whether a Magistrate, who receives a private complaint which discloses an offence exclusively triable by a Court of Session and who records the sworn statement of the complainant as contemplated by S 200 of the Code, should also resort to the enquiry envisaged in S.202(1) and by virtue of the proviso to sub-s. (2), is he bound to call upon the complainant to produce all his witnesses and examine, them on oath. In both cases the learned Magistrates concerned did not think it fit to postpone issue of process against the accused as contemplated in S.202(1) of the Code, but ordered process under S.204, evidently on the basis of the opinion that there was sufficient ground for proceeding. According to the petitioners, in dealing with a private complaint disclosing an offence exclusively triable by a Court of Session, Magistrate cannot skip over the stage contemplated in S.202 but must necessarily adopt the procedure contemplated therein. In Crl. MC 17 of 1985 there is a further ground that the complaint does not disclose offences which the Magistrate took cognizance of.