IN RE: THE EXTRA ASSISTANT AND … VS UNKNOWN

Admin

3 years ago

Spread the love

IN RE: THE EXTRA ASSISTANT AND … VS UNKNOWN

Citation	1983
Date of Judgment	13 October 1983
Court	Bombay High Court
Case Type	Criminal
Appellant	In Re: The Extra Assistant
Respondent	Unknown
Bench	B. Gadgil, S. Deshpande
Referred	Sections – 190(1)(a), 200, 202, 203, 204, 207, 208, 209 of the Criminal Procedure Code,1973307, 323, 342, 395, 436, 447 r/w 34, 504, 506 of the Indian Penal Code, 1860

FACTS OF THE CASE

The complainant had a field where she was at present at that time. It is alleged that accused Nos. 1 to 13 committed trespass and indulged in taking her away some properties. It was also alleged that the accused persons caused hurt to her, her grandchildren, and her daughter-in-law, who were also present in the field. She alleged that she has seen the incident.

The incident relates to acts that gave rise to the offense under sections 395, 323, and 447 which can be r/w Section 34 of the Indian Penal Code, 1860. Alleging all these acts where accused Nos. 1 to 13 have committed the trespass, the Complainant filed a complaint before the learned Judicial Magistrate of First Class.

The officials issued search warrants and other minor reliefs. The learned Magistrate then issued a process on the strength of the complainant’s sworn statement, which he recorded under section 200 of the Criminal Procedure Code, 1973 so that further investigation would start regarding the crime.

When the case finally reached the Sessions Court where the committal order was passed by the learned Magistrate then, the learned Extra Additional Sessions Judge, perused the record and found that the learned Magistrate has entertained the case as a private complaint under Section 202 of the Criminal Procedure, 1973. Here, all other witnesses were not examined under the investigation by the investigating officer. Then, they finally heard all the parties because the case was triable in the Court of Session.

The learned Extra Additional Sessions Judge, after examining the record and hearing the parties thought that the order of commitment was not correct. He observed that undoubtedly the statement of the complainant makes the case of dacoity as well as of causing hurt to the victim and it was illegal and the commitment was illegal too because all the witnesses were not examined by the investigating officer and also regarding learned Judicial Magistrate First Class did not take any action against the officer. The learned Extra Additional Sessions Judge also observed that under section 202 of the Criminal Procedure Code, 1973 the proviso to that section, stated that the Magistrate needed to examine all the witnesses because the case was triable by the Court of Session.

ISSUES

Whether it is legal for the learned Judicial Magistrate of a case can file a private complaint where he does not examine all the witnesses listed in the complaint after they take an oath?
Can the Sessions Court quash the learned Judicial Magistrate’s private complaint when he does not follow the provisions that are given under Section 202 of the Criminal Procedure Code, 1973?
How will be the matter dealt further if the Court has no power to quash the complaint which was made by the learned Judicial Magistrate without following the provisions of Section 202(2) of the Criminal Procedure Code, 1973?

ARGUMENTS

The learned Counsel for the accused drew our attention toward the provisions of Sections 200, 202, and 203 of the Criminal Procedure Code, 1973. He contended that the learned Magistrate in this case has passed the committal order and issued the further process of the claim which was triable by the Court of Session. He was competent under section 209 of the Criminal Procedure Code, 1973 and there was no infirmity in this case.

He contended that the reasonings of the learned Sessions Judge were so attracted in every case because when the complaint relates to a case that was triable by the Court of Session then the Magistrate must examine the complainant and all his witnesses as prescribed under the proviso. In this case, the learned Counsel for the accused contended that the learned Magistrate issued the process on the same day when he examined the complainant as it was a private complaint filed under section 200 under Chapter 15 of the Criminal Procedure Code, 1973. This Chapter states the procedure for complaints and their disposal.

The learned Magistrate after examining the complainant under Section 200 of the Criminal Procedure Code, 1973 made it justifiable in issuing the process under Section of the Criminal Procedure Code, 1973 because the case was triable by the Court of Session and the learned Magistrate passed the order of committal under Sec 209 of the Criminal Procedure Code, 1973.

The learned Counsel for the accused also urged before us that the procedure adopted by the learned Magistrate of the case is quite proper. He referred to the provisions of Section 208 of the Criminal Procedure Code, 1973 which provide that the Magistrate issues the process under Section 204 of the Criminal Procedure Code, 1973 which is required to furnish copies of the statements of the accused only if he commits under Section 208 of the Criminal Procedure Code, 1973. The learned Counsel for the accused invited our attention under Section 208(1) of the Criminal Procedure Code, 1973 which states that the statement recorded under Section 202 of the Criminal Procedure Code, 1973 of all persons should be examined by the Magistrate.

The learned Counsel for the accused invited our attention towards a judgment of the Division Bench of Kerala High Court in the case of Sulaiman v. Eachara Warrior reported in 1978. The contention of The learned Counsel for the accused finds support from the reasoning of the judgment of the Kerala High Court. The Kerala High Court has observed, there is nothing in the Code prohibiting a Magistrate from taking cognizance of an offense and examination by him the complainant, and the witnesses who were present there.

We agree with the reasoning of the Kerala High Court in the above judgment where the contention was raised by the learned Counsel for the accused, but the complainant’s learned Advocate did not have anything to say. On the contrary, he supported the contention of the learned Counsel for the accused. But the learned Public Prosecutor for the State contended that the view of the Kerala High Court runs contrary. He invited our attention to the judgment delivered by this Court in the case of Shyamkant v. State of Maharashtra reported in 1980. The Division Bench of this Court construed proviso to Section 202 of the Criminal Procedure Code, 1973.

JUDGEMENT

There was a private complaint that was related to offenses under Section 323, 342, 395, 436, 447 r/w 34, 504, 506 of the Indian Penal Code, 1860. It appears that the learned Magistrate has postponed the issue of the process which has been examined by himself both the witnesses and the complainant of the case. Section 202 of the Criminal Procedure Code, 1973 deals with the postponement of the issue of process. Once the Magistrate makes up his mind and postpones the issue of the process then either conducting an examination of the complainant or asking him to produce all his witness comes into consideration.

The Magistrate recorded the statement of the complainant and finally issued a process even in respect of the offenses under sections 307 and 395 of the Indian Penal Code, which was triable exclusively by the Court of Session. The Division Bench of the court said that it did not appear from the record that the Court had called upon the complainant to produce his witnesses and there was a mandatory provision regarding this.

The learned Public Prosecutor relied on the judgment which can be viewed by the Court which seems to be that in a case that was triable exclusively by the Court of Session in a private complaint filed by the complainant before a Magistrate and the Magistrate needed to follow the procedure prescribed under Section 202(2) of the Criminal Procedure Code, 1973.

Section 200 of the Criminal Procedure Code, 1973 empowers the Magistrate to take cognizance of an offense disclosed by the complaint filed before him and has the power to initiate proceedings upon receiving the complaint. After receiving the private complaints of which the Magistrate can take cognizance under section 190(1) (a) of the Criminal Procedure Code, 1973.

Section 190 (a), (b), and (c) of the Criminal Procedure Code, 1973 the Magistrate may adopt any of these three ways as prescribed under:

He may issue process at once under section 204(1) of the Criminal Procedure Code, 1973;
He may postpone the issue of process and may direct inquiry or investigation as provided by Section 202(1) of the Criminal Procedure Code, 1973; or
He may dismiss the complaint under section 203 of the Criminal Procedure Code, 1973.

Under Section 200 of the Criminal Procedure Code, 1973 the learned Magistrate can take cognizance of an offense which shall be examined upon oath by the complainant and the witnesses present, if any, and the substance of such examination that shall be in written format and shall be signed by the complainant, the witnesses, and also by the Magistrate. If the Magistrate prima facie finds that the allegations made in the complaint and were supported by the sworn statement of the complainant are sufficient to proceed further where he is competent to issue process immediately.

However, in case of doubt and it is open for the Magistrate to adopt the procedure provided by Section 202 of the Criminal Procedure Code, 1973, and if he does not make his mind to issue process on examination of the complainant as provided the consideration for the issue of process and inquiry and report as provided by Section 202 of the Criminal Procedure Code, 1973 may not be identical but are similar to find out a sufficient ground for proceeding. The order which was passed by the Magistrate is quite proper and legal.

The Magistrate before committing the case to the Court of Session is required to follow the provisions of Sections 207 and 208 of the Criminal Procedure Code, 1973. If the case is instituted on police report he should comply with Section 207. We have already observed that the Magistrate has passed the order of committal under section 209 of the Criminal Procedure Code, 1973. However, it was clear that the Sessions Judge submission was made either by the prosecution or by the accused for supporting charge under section 226 of the Criminal Procedure Code 1973, or discharge as provided by Section 227 of the Criminal Procedure Code, 1973.

Section 202(2) of the Criminal Procedure Code, 1973 comes into play when the Magistrate postpones the process issue and holds an inquiry. The learned Magistrate has not postponed the issue of process and hence, the issue of process and the consequent commitment without examining all the witnesses is quite legal and proper for the case.

PRECEDENT CASES

The object of Section 202 of the Criminal Procedure Code, 1973, and the provisions in this Chapter came up for consideration before the Supreme Court in its three judgments to which we may refer: