P VARADARAJULU NAIDU Vs. PKUPPUSWAMI NAIDU

JUDGEMENT

(1.) This is a criminal revision case against the order of the Presidency Magistrate dismissing a complaint under Section 203, Criminal Procedure Code. The chief ground of attack is that the Magistrate has ignored the proper procedure under Secs.202 and 203 and adopted a procedure for which there is no warrant and which is in many ways open to objection.

(2.) It appears that the procedure is one which has been for many years in practice in that Court. It is that when a complaint is put in and sworn to, the Magistrate without hearing the complainant's case or his witnesses issues notice to the accused to appear and show cause against the issue of process, hears what the accused has to say, examines any witness he wishes to have examined and then decides whether the com-plaint shall be received or not.

(3.) It is argued that this procedure is justified by Section 202. It may be said that it is not prohibited by the letter of that section but it is clearly contrary to the spirit of that section and to the general principles of the Code. Section 202 clearly implies that an accused is not to be troubled unless the Magistrate is first satisfied that the complaint is prima facie true, and therefore the case is made out which the accused must rebut. To call upon an accused to appear and disclose his defence before the Magistrate has satisfied himself that the complaint is prima facie true is contrary to the spirit of the whole procedure of criminal trials. It, is no justification to say that the accused is willing to adopt that procedure, be-cause if he refused to adopt it, he will do so at his peril and the Magistrate would at once conclude that there was a good case against him. It is a procedure most unfair to the accused. He is in effect compelled not only to state, but to substantiate his defence, before the prosecution has substantiated any case against him, and this is the exact opposite of the principle underlying the prescribed procedure. It is not until the prosecution case has been fully and thoroughly put forward and tested by cross-examination that the accused is to be called upon to put forward his defence. Under the procedure now adopted if the Magistrate rejects the defence and considers that there is a case to go on with, then the accused has to put his case forward before a Magistrate who has already rejected his defence. From this point of view alone the procedure is indefensible.