Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions?

When a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, take cognizance of an offence. This procedure is not required to be followed when a written complaint is made by a public servant, acting or purporting to act in discharge of his official duties or when a Court has made the complaint or if the Magistrate makes over the case for inquiry/trial to another Magistrate under Section 192. Section 202(1) empowers the Magistrate to 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 or by such other person which he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By Amending Act No.25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the concerned Magistrate. Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200. Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Sessions then in terms of proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath. Section 203 empowers the Magistrate to dismiss the complaint if, after considering the statements made by the complainant and the witnesses on oath and the result of the inquiry or investigation, if any, made under Section 202(1), he is satisfied that there is no sufficient ground for proceeding. The exercise of this power is hedged with the condition that the Magistrate should record brief reasons for dismissing the complaint. Section 204, which talks of issue of process lays down that if the Magistrate taking cognizance of an offence is of the view that there is sufficient ground for proceeding then he may issue summons for attendance of the accused in a summons-case. If it is a warrant-case, then the Magistrate can issue warrant for causing attendance of accused. Section 207 casts a duty on the Magistrate to supply to the accused, copies of the police report, the first information report recorded under Section 154, the statements recorded under Section 161(3), the confessions and statements, if any, recorded under Section 164 and any other document or relevant extract thereof, which is forwarded to the Magistrate along with police report. Section 208 provides for supply of copies of statement and documents to accused in the cases triable by the Court of Sessions. It lays down that if the case, instituted otherwise than on a police report, is triable exclusively by the Court of Sessions, the Magistrate shall furnish to the accused, free of cost, copies of the statements recorded under Section 200 or Section 202, statements and confessions recorded under Section 161 or Section 164 and any other document on which prosecution proposes to rely. Section 209 speaks of commitment of case to the Court of Sessions when offence is triable exclusively by it. This section casts a duty on the Magistrate to commit the case to the Court of Sessions after complying with the provisions of Section 208. Once the case is committed, the trial is to be conducted by the Court of Sessions in accordance with the provisions contained in Chapter XVIII. 








The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI of Cr.P.C. finds adequate support from the judgments of this Court in R.C. Ruia v. State of Bombay, 1958 SCR 618, Vadilal Panchal v. Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR 639, Nirmaljit Singh Hoon v. State of West Bengal (1973) 3 SCC 753, Kewal Krishan v. Suraj Bhan (1980) Supp SCC 499, Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492. 






In Chandra Deo Singh v. Prokash Chandra Bose (supra), it was held that where there was prima facie evidence, the Magistrate was bound to issue process and even though the person charged of an offence in the complaint might have a defence, the matter has to be left to be decided by an appropriate forum at an appropriate stage. It was further held that the issue of process can be refused only when the Magistrate finds that the evidence led by the complainant is self contradictory or intrinsically untrustworthy. 






In Kewal Krishan v. Suraj Bhan (supra), this Court examined the scheme of Sections 200 to 204 and held: "At the stage of Sections 203 and 204 of the Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202 of the Criminal Procedure Code, there is prima facie evidence in support of the charge leveled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding" against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the Magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges." 






The aforesaid view was reiterated in Mohinder Singh v. Gulwant Singh (supra) in the following words: "The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should issue or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry." 






The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused. 






In Rosy v. State of Kerala (supra) the Excise Inspector filed a complaint before Judicial Magistrate, Thrissur for offences punishable under Section 57-A and 56(b) of the Kerala Abkari Act. As the offences were exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions, Thrissur. After the prosecution examined witnesses, the accused were questioned under Section 313 Cr.P.C. The public prosecutor then filed an application for recalling two witnesses, who were recalled and examined. Thereafter, further statements of the accused under Section 313 were recorded. The accused examined four witnesses. At that stage, an argument was raised that the committal order was bad because the Magistrate did not follow the procedure prescribed in the proviso to Section 202(2). The learned Sessions Judge opined that there was breach of the mandatory provision but made a reference to the High Court under Section 395(2) because he found it difficult to decide the course to be adopted in the matter. The High Court held that the order of committal was vitiated due to violation of the mandate of proviso to Section 202(2). 






In Ranjit Singh v. State of Pepsu, AIR 1959 SC 843 held: "Further, it is settled law that the inquiry under Section 202 is of a limited nature. Firstly, to find out whether there is a prima facie case in issuing process against the person accused of the offence in the complaint and secondly, to prevent the issue of process in the complaint which is either false or vexatious or intended only to harass such a person. At that stage, the evidence is not to be meticulously appreciated, as the limited purpose being of finding out "whether or not there is sufficient ground for proceeding against the accused". The standard to be adopted by the Magistrate in scrutinising the evidence is also not the same as the one which is to be kept in view at the stage of framing charges. At the stage of inquiry under Section 202 CrPC the accused has no right to intervene and that it is the duty of the Magistrate while making an inquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made." 






Shah J. in Kewal Krishan v. Suraj Bhan observed: "In this view of the matter it is apparent that the High Court erred in holding that there was breach of the mandatory provisions of the proviso to Section 202(2) of the Code and the order of committal is vitiated and, therefore, requires to be set aside. The High Court failed to consider the proviso to Section 200, particularly proviso (a) to the said section and also the fact that inquiry under Section 202 is discretionary for deciding whether to issue process (under Section 204) or to dismiss the complaint (under Section 203). Under Section 200, on receipt of the complaint, the Magistrate can take cognizance and issue process to the accused. If the case is exclusively triable by the Sessions Court, he is required to commit the case to the Court of Session." 






In Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635 and in M. Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917, approved the ratio of the latter decision that Section 202 is an enabling provision and it is the discretion of the Magistrate depending upon the facts of each case, whether to issue process straightaway or to hold the inquiry and held: "We agree with the conclusion of the Madras High Court to the effect (sic extent) that Section 202 is an enabling provision and it is the discretion of the Magistrate depending upon the facts of each case, whether to issue process straight away or to hold the inquiry. However, in case where inquiry is held, failure to comply with the statutory direction to examine all the witnesses would not vitiate further proceeding in all cases for the reasons that (a) in a complaint filed by a public servant acting or purporting to act in discharge of his official duties, the question of holding inquiry may not arise, (b) whether to hold inquiry or not is the discretionary jurisdiction of the Magistrate, (c) even if he has decided to hold an inquiry it is his further discretion to examine the witnesses on oath. If he decides to examine witnesses on oath in a case triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath, (d) it would also depend upon the facts of each case depending upon the prejudice caused to the accused by non- compliance with the said proviso (Section 465), and (e) that the objection with regard to non-compliance with the proviso should be taken at the earlier stage when the charge is framed by the Sessions Court." 






K.T. Thomas, J. adopted a different approach regarding interpretation of Section 202. He referred to the scheme of Chapters XIV, XV and XVI Cr.P.C. and observed: "Three categories of documents are mentioned in the aforesaid section the copies of which the Magistrate, who proceeds from the stage in Section 204, has to supply to the accused free of cost (in a complaint case involving an offence triable exclusively by a Court of Session). As the words used here are "shall furnish", it is almost a compelling duty on the Magistrate to supply the said documents to the accused. How can the Magistrate supply such documents? [In the present context the documents referred to in the third category mentioned in clause (iii) are not important.] The first category delineated in clause (i) of Section 208 consists of "statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate". 






It is now important to note that the words "if any" have been used in the second category of documents which is delineated in clause (ii) of Section 208, but those words are absent while delineating the first category. In my view those two words have been thoughtfully avoided by Parliament in clause (i). If a Magistrate is to comply with the aforesaid requirements in Section 208 of the Code (which he cannot obviate if the language used in the sub-section is of any indication) what is the manner in which he can do it in a case where he failed to examine the witnesses before issuing process to the accused? The mere fact that the word "or" is employed in clause (i) of Section 208 is not to be understood as an indication that the Magistrate is given the freedom to dispense with the inquiry if he has already examined the complainant under Section 200. A case can be visualised in which the complainant is the only eyewitness or in which all the eyewitnesses were also present when the complaint was filed and they were all examined as required in Section 200. In such a case the complainant, when asked to produce all his witnesses under Section 202 of the Code, is at liberty to report to the Magistrate that he has no other witness than those who were already examined under Section 200 of the Code. When such types of cases are borne in mind it is quite possible to grasp the utility of the word "or" which is employed in the first clause of Section 208 of the Code. So the intention is not to indicate that the inquiry is only optional in the cases mentioned in Section 208. If a case instituted on a complaint is committed to the Court of Session without complying with the requirements in clause (i) of Section 208 of the Code how is it possible for the Public Prosecutor to know in advance what evidence he can adduce to prove the guilt of the accused? If no inquiry under Section 202 is to be conducted a Magistrate who decides to proceed only on the averments contained in the complaint filed by a public servant (who is not a witness to the core allegation) and such a case is committed to the Court of Session, its inevitable consequence would be that the Sessions Judge has to axe down the case at the stage of Section 226 itself as the Public Prosecutor would then be helpless to state "by what evidence he proposes to prove the guilt of the accused". If the offence is of a serious nature or is of public importance the consequence then would be a miscarriage of justice." 






Thomas, J. then referred to the recommendations made by the Law Commission in its 41st Report and held: "Thus I have no doubt that the proviso incorporated in sub- section (2) of Section 202 of the Code is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in such cases. I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the court to summon such witnesses it is open to the Magistrate to issue such summons, for, there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses. I reiterate that if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission the court can consider how far such omission would have led to a miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code." 






Although, Shah, J. and Thomas, J. appear to have expressed divergent views on the interpretation of proviso to Section 202(2) but there is no discord between them that non examination of all the witnesses by the complainant would not vitiate the proceedings. With a view to clarify legal position on the subject, we deem it proper to observe that even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2). 






In Birendra K. Singh v. State of Bihar (supra), the only question considered by the Court was whether non-compliance of Section 197 Cr.P.C. was fatal to the prosecution. While holding that an objection regarding non-compliance of Section 197 can be raised only after the case is committed to the Court of Sessions, this Court observed that it was not made aware of the fact whether process was issued after complying with the provisions of Section 202. Therefore, that judgment cannot be read as laying down a proposition of law on interpretation of proviso to Section 202(2). That apart, it is important to mention that in Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500, a three-Judge Bench held that the decision in Birendra K. Singh's case does not lay down the correct law. 






As a sequel to the above discussions, examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for takingcognizance and issue of process against the persons named as accused in the complaint. 






(Shivjee Singh Vs. Nagendra Tiwary, AIR 2010 SCW 4064 : JT 2010 (7) SC 271 : 2010 (6) SCALE 307 : AIR 2010 SC 2261 : (2010) 7 SCC 578 : (2010) 7 SCR 667 : 2010 Cri.LJ. 3827)