KAIMALA BHARGAVI AMMA Vs. KUNDUMADATHIL RAVINDRAN NAIR

JUDGEMENT

(1.) The Judgement of the court was delivered by George Vadakkel, J. - The petitioner in Crl. R.P. No. 167 of 1977 is the wife of the 1st petitioner in Crl. R.P. No. 183 of 1977. The other petitioner in Crl. R.P. No. 183 of 1977 is the son of the 1st petitioner therein. The petitioner in Crl. R.P. No. 167 of 1977 filed a complaint before the Chief Judicial Magistrate, Manjeri. After recording her statement, but not of any witness, presumably because none was present, the Magistrate issued process. He then transferred the case to the II Class Magistrate, Malappuram. The accused were summoned before that court. That court committed the case to the Court of Session, Manjeri. The Sessions Court discharged the accused under S.227 of the Code of Criminal Procedure, 1973 as but for 'the bald allegation of the Complaint and the complainants' interested sworn statement there is nothing on record to show that the accused have committed the offences alleged. The father and son, the petitioners in Crl. R.P. No. 183 of 1977, are the accused in a complaint in respect of the same transaction delivery of immovable properly pursuant to a partition decree filed by one of the accused in the other case an Amin attached to the District Court, Manjeri. Since that case relates to offences not exclusively triable by a Sessions Court, the Sessions Court, transferred the same to the Chief Judicial Magistrate, Manjeri.

(2.) Our learned brother Poti, J., doubting the correctness of the Division Bench decision of this Court in Sulaiman v. Eachara Warrier ( 1978 KLT 424 ) has referred these cases for decision by a larger Bench, and thus these cases are before us. That decision takes the view that it is not obligatory upon a Magistrate, on receipt of a complaint, to adopt the course open to him under S.202 of the Code, and it is only if he decides upon that course and further, to hold an inquiry as envisaged thereunder that he need call upon the complainant to produce all his witnesses and examine them on oath even if the complaint discloses an offence triable exclusively by a Court of Session. It is stated in the reference order that in cases where the complaint discloses an offence triable exclusively by a Sessions Court, if the Magistrate does not hold an inquiry by calling upon the complainant to produce all his witnesses and examining them or does not direct an investigation to be made by a police officer or by such other person as the Magistrate thinks fit, the Public Prosecutor who is to open the case before the Sessions Court would not be in a position to say what evidence be proposes to let in to sustain the charge.

(3.) The scheme of the Code, as was of the old code, is that the Magistrate is required to issue process only on his being satisfied of a prima facie case for the complainant. So, S.200 thereof, as did S.200 of the old code, provides that ho shall examine upon oath the complainant and the witnesses present, and S.202, like S.202 of the Old Code, enables him, 'if he thinks fit' to postpone issue of process, so that he may inquire into the case himself or direct an investigation by a police officer or by such other person as he thinks fit, for deciding whether a prima facie case exists for issue of process. At this stage, preparatory to issue of process and in order to determine whether process should be issued or not, the accused has no locus standi, and it is for the complainant to make out a prima facie case for issue of process, by producing witnesses for examination on oath by the Magistrate who is bound to examine such witnesses as are present. Further, the Magistrate, in his discretion, may, at this stage, hold an inquiry into the case himself or cause the same to be investigated by a police officer or by such other person as he thinks fit in order to decide whether process should be issued or not. As in the matter of any discretionary jurisdiction vested in a court, it would not be proper to lay down any hard and fast rule as to when such discretion is to be exercised; nor is it possible or feasible. It is for the Magistrate to decide as to whether he should postpone the issue of process, and if he so decides, as to whether he should himself inquire into the case or direct an investigation; and further, if he is to direct an investigation, who should investigate, a police officer, or if not a police officer, which other person. May be the complainant is entitled to invoke the discretionary jurisdiction, and the revisional court may be competent to examine as to whether in any case the discretionary jurisdiction vested in the Magistrate as aforesaid has been rightly exercised or improperly refused to be exercised, but nonetheless the jurisdiction under S.202 of the Code is a discretionary one to be exercised by the Magistrate depending upon the facts and circumstances of each case. So no rule of general application with reference to any class of complaints, for example, complaints involving offences exclusively triable by a court of session, as regards even the desirability of the Magistrate holding an inquiry into the case himself or directing an investigation into it by a police officer or other officer can be laid down.