M GOVINDARAJA PILLAI Vs. THANGAVELU PILLAI

JUDGEMENT

(1.) THIS revision comes before this court by way of reference made by the learned Sessions Judge of East Thanjavur under section 395 (2) of the Criminal Procedure Code, to this Court for the decision of the following question of law viz., whether all the witnesses cited in a case triable exclusively by the Court of Session, instituted on a private complaint, should be exa-mined by the committing Court, as contemplated under the proviso to section 202 (2) of the Code and if so, to quash the committal order passed by the learned Judicial Second Class Magistrate, Tiruvarur in P.R.C. No. 8 of 1980 on his tile, in which only four witnesses out of 9 cited have been examined.

(2.) THE matter in question no doubt raises a very interesting and important question of law in respect of which there is a cleavage of judical opinion among the various High Courts Sections 200 to 203 of Chapter XV of the Criminal Procedure Code, 1973, under the heading �Complaints to Magistrates,� deal with the exam nation of the complainant and the procedure to be followed by the Magistrates while taking cognizance of the cases and also the dismissal of the Complaint if there is no sufficient ground for further proceeding. Section 200 castsa mandatory duty on a Magistrate taking cognizance of an offence on a complaint, to examine the complainant and the witnesses present, if any, upon oath and to reduce the substance of such examination in writing and get the same signed by the concerned persons.

(3.) SECTION 202, which is an important provision to be examined for answering this reference, deals with the procedure to be adopted where the Magistrate, after postponing the issue of process for the purpose of deciding whether or not there is sufficient ground for proceeding in all the cases inclusive of a case triable exclusively by a Court of Session. There is a proviso to section 202 (2). I shall reproduce sub-sections (1) and (2) of section 202 (1) with the provisos,for a proper understanding of the import of the section , which I shall deal with exhaustively after referring to various decisions rendered by various High Courts on the matter. 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 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 orby 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 examined on oath under section 200. (2) In an inquiry under sub-section (1) the Magistrate may if he thinks fit take evidence of witnesses 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) .............�. SECTION 203 of the Code, gives a wide power to the Magistrate to dismiss a complaint without issuing process after considering the statements of the complainant and the witnesses and the result of the inquiry or investigation, if any. under section 202. If the Court is of the opinion that there is no sufficient ground for proceeding,, and for passing such, an order of the dismissal, the Magistrate has to record the reasons in brief. Only if the Magistrate is of the opinion that there is sufficient ground for further proceeding, he can issue process to the accused as provided under section 204.