P. GIRI AND ORS. Vs. ALPO MOMIN

JUDGEMENT

(1.) THE points that fall for consideration in this petition are: (i) Is a Magistrate bound to examine all the witnesses produced by the complainant while acting under Section 200 Code of Criminal Procedure 1973 before issuance of process against the accused under Section 204 of the Code of Criminal Procedure? (ii) whether the Magistrate is competent to issue process against the accused upon examination of the complainant alone and upon recording his opinion" that there is sufficient grounds for proceeding against the accused - These are the main questions posed by Mr. A.K. Bhattacharyya, learned Counsel for the Petitioners.

(2.) NOW , let me proceed to examine the first confection of the learned Counsel. To accept the contention I shall have to alter, change and upset the century old practice of the courts of the entire region. In this part of the land, the practice is to examine, the complainant and if the Magistrate is satisfied that the is sufficient ground for proceeding he issues process against the accused. If not, the Magistrate proceeds to examine "other witnesses present, if any", on the date of examination of the complainant. If the Magistrate finds no sufficient grounds for proceeding he dismisses the complaint under Section 203. To upset a long standing practice some strong force in support thereof is necessary. It may emanate from legislation or from judicial pronouncements. There is no decision supporting the contention of the Petitioners except two over -ruled decisions.

(3.) THE materials on record buttress the conclusion reached by the learned Magistrate. The order rendered Under Section 204 is impeccable. But the Counsel for the Petitioner has submitted that the order is bad for non -compliance with the provisions of Section 200 of the Code, namely, omission of the Magistrate to examine "the witnesses presem, if any", There is no challenge that "a prima facie case" was not established oh the statement of the complainant. Nor is there any challenge about absence of material to form the requisite 'opinion' contemplated Under Section 204. The arguments boils down to this: notwithstanding enough materials to form the requisite opinion the Magistrate should have taken an over -doze of material by examining all the witnesses present. Counsel submits that if a complainant comes with dozens of witnesses the Magistrate is bound to examine all of them though fully satisfied as to the existence of "sufficient ground for proceeding" Under Section 204 upon examination of the complainant alone, The Magistrate must examine all the witnesses like a robot, waste time, paper and ink and proceed on with the case day in and day out even though it is against the "public interest" and causes delay in dispensing justice in other matters. So what, argues the Counsel and pleads that the Court is obliged and the mandates of the cold words of law imprinted in black letters obligate the Magistrate to act in the way suggested. Let Justice suffer but the cold letters prevail, is the substance of the submission. It is abhorrent to the concept and norms of Justice. Law is not the end in itself. Justice is the legitimate end Human welfare is the common goal of both. The goal of justice and law is to wipe out tears, sufferings and sorrow and to, augment all forms of desirable consciousness, so that men may lead a happy life. Procedural law is not a tyrrant but a servant, not a hinder but an aid to justice. procedural prosecriptions are hand -maid and not the mistress, a lubricant and not a resistance in the Administration of Where the noncompliance, though procedural, will thwart fair, just and reasonable hearing or stands as an obstacle to cater justice to parties, the provision must be held to be mandatory, However, If the breach does not cause any injury to a just disposal of a case we cannot emplace such a regulatory requirement as dominant desideratum. Laws enacted have a stamp that they are meant for justice and not to wreck it. There is no doubt that if the Magistrate without examination of the witnesses produced by the complainant to back up his case, dismisses the complaint without examining the supporting witnesses, the process causing injury to the party must be hold to be violative of Section 200 as the said obligation imposed by and under Section 200 is mandatory. This is the quintessence of the decision of the Supreme Court in Nirmaljlt Singh Hoon v. The State of West Bengal : AIR 1972 SC 2639. The Contention that the ratio decidendi of Nirmaljlt Slngh (Supra) is that the Magistrate is bound to examine ail the witnesses produced by the complainant, although be is satisfied as to the existence of a prima facie case upon examination of the complainant and/or one or two witnesses, is nowhere to be found in the decision. While considering the object of Section 200 providing for examination of the complainant on oath, it was observed that it was meant to prevent the issue of process merely on basis of the complaint petition which could be false or vexatious or intended only to harass the accused and nothing more. We quote the observations of Nirmaljit Singh (Supra) relied on by the learned Counsel for the Petitioner: