HAUSABAI TUKARAM WABLE V/S WAMAN KONDAJI GHOGARE 13 OCTOBER, 1983
Citation (1984)86 BOMLR163
Date of judgment 13th 0ctober 1986
Court Bombay High Court
Case Type Criminal case
Appellant HAUSABAI TUKARAM WABLE
Respondent WAMAN KONDAJI GHOGARE
Bench Gadgil, S Deshpande
Referred Code of Criminal Procedure – 200,202, 202(2),209,208,204,395(2),3161,162,
4(1),192,
Indian Penal Code -395,323,447 read with section 34.
FACTS OF THE CASE
The complainant Hausabai was in possession of a field Gat No. 285 of Mouje Loni Kd. She was at the material time present in the field. It is alleged that accused Nos. 1 to 13 committed trespass and indulged in taking away some properties. It was also alleged that the accused caused simple hurts to her, her grandchildren, and her daughter-in-law, who were also present in the field. She alleged that she had seen the incident. The incident relates to acts that give rise to the offenses under Sections 395, 323, and 447 read with Section 34 of the Indian Penal Code. Alleging that accused Nos, 1 to 13 have committed these acts, the complainant filed a complaint before the Learned Judicial Magistrate, First Class, Shrirampur. An offense under Section 395 is exclusively triable by the Court of Sessions, while offenses under, Sections 323 and 447 read with Section 34 are triable by the Magistrate.
The learned magistrate, after issuing the process, committed the said case to the Court of Sessions by his order dated January 21, 1983. When the case reached the Sessions Court, on the strength of the committal order passed by the learned Magistrate, it was numbered as Sessions Case No. 12 of 1983. The learned Extra Additional Sessions Judge, Ahmednagar, perused the record and found that the learned Magistrate had entertained the case on a private complaint under Section 202 of the Criminal Procedure only on the strength of the statement of the complainant and all other witnesses were not examined. He thought that the case was exclusively triable by the Court of Sessions. He, therefore, heard the parties on the nature of the order of commitment passed by the learned Magistrate.
The learned Extra Additional Session judge, after examining the record and hearing of parties, found that learned Magistrate has committed an error in the issuing process in a case which was exclusively triable by the Sessions court.
ISSUES
(i) Whether a commitment, made by the Judicial Magistrate, F.C., of a case to Court of Sessions on private complaint is legal when he does not examine on oath all the which listed in the complaint?
(ii) When a Judicial Magistrate, F.C. commits a case to the Court of Session, instituted on a private complaint without following provisions of Section 202 of the Criminal Procedure Code, can Sessions Court quash the commitment and send the proceeding back for inquiry according to law?
(iii) If this Court has no power to quash the commitment made by the learned Magistrate without following the provisions of Section 202(2) Cri. P. C. how the matter is to be dealt with further?
Arguments
When the case was referred for the reference to the High court under Section 395(2) of the Criminal Procedure Code. Shri shah while giving the reference gave the support of reasoning of the judgment of the Division Bench of Kerala High Court in the case of Sulaiman V.Eachara Warrier (1978) Ker L.J.424. The Kerala High court has observed that there is nothing in this code prohibiting a Magistrate after taking cognizance of the offence and examination by him of the complaint and the witness present, if any under section 202(2) stands in a way of doing that. That proviso is section 202 (2) and it is specific that what is contained therein is applicable only to the inquiry referred to in Section 202(1).
The court further observed that it shows that it is open for him not to postpone the issue of process under Section 204 of the code. If he does not think fit to postpone the issue of process against the accused it is open to the Magistrate to straightaway issue process under Section 204 after examination of the persons contemplated by Section 200 of the Code. The choice is solely with the Magistrate.
We are in agreement with the reasoning of the Kerala High Court in the above judgment. In answer to this contention raised by the learned Counsel for the accused, the complainant’s learned advocate did not have anything to say. On the contrary, he supported the contention of Shri Shah. However, the learned advocate for the complainant raised another point in regard to the inadequacy of the material with which we will deal later.
While deciding the object of the Section 202 of Criminal Procedure Code and the provision of this chapter came up for consideration before the Supreme court in its three judgments which are referred here;
Vadilal Panchal v. Dattatraya Dulaji (1961) 1SCR1
Chandra Deo Singh v. Chandra Prakash Bose (1964)1SCR639
Dr. D.S. Khannna v. Chief Secretary, Patna (1983)2SCR724
We are referring to these cases only to show that the object of inquiry and investigation as provided by Section 202 or examination of the complainant as provided by Section 200 of the Criminal Procedure Code, is the same. The object underlying these provisions is to find out whether there is a prima facie case for the issuing process or not. This was pointed out by the Supreme Court as long back as in Chandra Deo Singh v. Prakash Chandra Bose(supra), The Supreme Court in the said case was dealing with the old Criminal Procedure Code i.e. Chapter 16 (now Chapter 15 of the New Code). There is no substantial change excepting re-numbering of the sections in this Chapter, which contains Sections 200 to 203. It is the discretion of the Magistrate to find out at that stage from the complaint after examining the complainant, whether the alleged facts will have to be inquired into or he may put any question to the complainant or his witnesses if they are present. The scope for inquiry is very limited. The Supreme Court has observed in Head-Note “B” as follows:
For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.
The same view has been taken by the Supreme Court in the case of Dr. S.S. Khanna v. Chief Secretary, Patna (supra), which we have referred to above. The Supreme Court has observed as follows (at p. 597, para. 8):
An enquiry under Section 202 of the Code is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an accused unless it is decided to issue a process against him. Even if he participates in the proceedings under Section 202 of the Code, he does so not as an accused but as a member of the public. The object of the enquiry under Section 202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom-the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under Section 202 of the Code.
JUDGEMENTS
He submitted that because of the failure of the Magistrate to examine the witnesses, there will be some difficulty in framing the charge before the Sessions Judge and the prosecution may be under disability on account of that failure and it is likely that the Sessions Judge will not be able to go on with the trial. In our opinion, such a question does not arise before us for our consideration, However, we are clear that in a particular case, if, on the material before the learned Sessions Judge, any submissions are made either by the prosecution or by the accused for supporting charge under Section 226 or discharge as provided by Section 227 of Chapter 18 of the Code, it will be open for the learned Sessions Judge to consider the same on its own merits. In this case, such a contingency has not arisen and we do not propose to deal with that situation. We may observe that such a situation will be very rare having regard to the general procedure provided by Criminal Procedure Code in Chapter 15 dealing with complaints.
In this view of the matter, our answer to point No. 1 of the Reference is as follows:
That the proviso to Sub-section (2) of Section 202 of the Criminal Procedure Code comes into play when the Magistrate, postpones the issue of process and holds inquiry.
In this case the learned Magistrate has not postponed the issue of process and hence, issue of process and the consequent commitment without examining all the witnesses is quite legal and proper.
In view of our answer to point No. 1, points Nos. 2 and 3 do not survive.
In the result, the Reference is answered accordingly and the case is sent to the Sessions Court. Reference answered
written by Simrah Khan intern under legal vidhiya.
