1. This case is before us on a reference made by our learned brother Muktadar, J. having regard to the importance of the question namely whether the proviso to Section 202 of the Cr. P. C. imposes an obligation on the Magistrate to examine all the witnesses cited by the complainant before issuing process to the accused.
2. This Criminal Miscellaneous Petition was filed by 29 accused for quashing the proceedings in P. R. C. No. 3 of 1979 on the file of Munsif Magistrate, Zahirabad.
3. The relevant facts are as follows:
On 23-8-1978 there was rioting in the village of Singtham, Zahirabad Taluk, Medak District, in which a person died. A complaint was lodged at Zahirabad Police Station on 24-8-1978 at 8 P. M, implicating the 29 petitioners herein and another. After registering the case and completing the investigation, the Inspector of Police, Crime Branch, CID, Hyderabad filed a charge-sheet against the petitioners 11 to 29 alone. The Police did not file a charge-sheet against the petitioners 1 to 11. Apparently the Police thought that there is no case so far as petitioners 1 to 10 are concerned.
4-5. On 17-2-1979, the first respondent-complainant filed a private complaint against all the 29 petitioners for offences under Sections 148, 302, 324, 452 and 440, I. P. C. read with Section 149, I. P. C. The sworn statement of the complainant was recorded on 20-2-1979. The first respondent cited as many as 22 witnesses in his complaint. As the case is one which is exclusively triable by a Court of Session, the learned Magistrate decided to hold an enquiry. On 1-3-1979 the statements of witnesses 3 to 6 and 8 mentioned in the list were recorded and the case was adjourned to 8-3-1979. On that day, listed witness No. 7 was examined and as the remaining witnesses were absent, the case was posted to 17-3-1979. On 17-3-1979, the Magistrate passed an order that the 'only remaining eye-witness was given up by the complainant, hence the enquiry under Section 202, Cr. P. C. is closed.' The case was posted to 20-3-1979 for consideration. On 21-3-1979 the Magistrate took the case on file against all the accused and issued non-bailable warrants to accused 1 to 10 and 27 and summons to the accused 11 to 26, 28 29 and registered the case as P. E. C. No. 3 of 1979. It is at this stage the present petition is filed to quash the proceedings.
6. In this petition Mr. C. Padmanabha Reddy the learned Counsel for the petitioners, strenuously contended that having regard to the proviso to Section 202 of the Cr. P. C. the Magistrate erred in issuing process without examining all the witnesses mentioned in the complaint, and that it is not open to the Magistrate to take the case on file after examining only some of the witnesses.
7. On the other hand, it is contended by Mr. Shankar Rao Bilolikar, the learned Counsel for the 1st respondent complainant that the proviso to Section 202 of the Cr. P. C. is intended to restrain the Magistrate from refusing to take cognizance of the offences after examining only some of the witnesses and therefore when the Magistrate is taking cognizance of the offences it is enough if direct witnesses are examined and that formal witnesses like the Doctor, the Investigating Officer and Panchayatdars need not be examined.
8. The short and interesting question that arises for consideration is whether the proviso to Section 202 of the Cr. P. C. imposes an obligation on the Magistrate to examine all the witnesses of the complainant before issuing process to the accused. Section 202, Cr.P.C. along with the proviso is as follows:
202 (1). Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may if he thinks fit, 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 as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding;
Provided that no such direction for investigation shall be made:
(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) Where the complaint has not been made by a Court unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an enquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
9. Section 202 of the Cr. P. C. contemplates that a Magistrate on receipt of a complaint of which he is auhorised to take cognizance may postpone the issue of process against the accused and enquire the case himself or direct investigation to be made by a Police Officer for the purpose of deciding whether there is sufficient ground for proceeding. Section 202(1)(a) of the Cr. P. C. directs that if the offence complained of is triable exclusively by a Court of Session he shall enquire the case by himself and cannot issue any direction for investigation. Clause (2) of Section 202 of the Cr. P. C. vests a discretion on the Magistrate to take evidence of witnesses on oath in an enquiry under Sub-section (1). But the proviso to Section 202(2), Cr. P. C. makes it clear that if the offence complained of is triable exclusively by a Court of Session he shall examine all the witnesses on oath. In our opinion the language of the proviso is clear and unambiguous. Where the case is one triable exclusively by a Court of Session under the proviso to Clause (2) of Section 202 it is mandatory on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The word used is 'all' and 'all' does not mean 'some'. He has to perform the statutory functions before issuing process in connection with the offences triable by a Court of Session. Though the committal proceedings as contemplated by the old Code have been abolished, Section 202 evolved a new procedure of examination of the witnesses. The examination of the witnesses is not a mere formality. This provision has been incorporated in the Code so that the accused has full information about the allegations about him and to enable him to prepare for his defence. We are of the view that the Section while on one hand is intended to restrain the Magistrate from refusing to take cognizance of the offence after examining only some witnesses it is also intended to give a fair and reasonable opportunity to the accused to get adequate information about the charge against him to prepare his defence. Section 208 casts a duty on the Magistrate to furnish the accused free of cost with copies of all the statements of witnesses examined by him. This provision is of great importance not only to the complainant but also to the accused. The object and the context in which the words 'the Magistrate shall examine all witnesses' appear (make it clear) that it is a mandatory provision which must be complied with. In a private complaint unless the witnesses are examined as contemplated by Section 202(2) the accused will not be in a position to point out any contradictions when they give evidence in the Court of Session. The accused can cross-examine the witnesses with regard to their earlier statements in the Court of the Magistrate, and point out the contradictions. It is no doubt true that the accused does not come into the picture in the committal Court. After the process is issued the accused appears and the case is made over to the Court of Session. Though he may not have a right in the Court of the Magistrate he has certainly a right to cross-examine the witnesses in the Sessions Court with reference to the statements made by them earlier in the Court of a Magistrate and therefore it cannot be said that the accused is not prejudiced at that stage. After the process is issued the accused has a right to complain that the mandatory provisions of Section 202(2) of the Cr. P. C, have not been complied with.
10. A similar question arose to Kamal Krishna v. State 1977 Cri LJ 1492 and the learned Judges of the Calcutta High Court had quashed the proceedings on the ground that all the witnesses mentioned in the complaint have not been examined by the Magistrate before issuing process to the accused.
11. In Paranjothi Udyar v. State 1976 Cri LJ 598 the Madras High Court dealing with a similar question observed as follows:
In cases instituted on a police report the accused will have the benefit of obtaining the copies of the statements of witnesses recorded by the police. In cases instituted other than on a police report the Legislature in its wisdom has thought of providing the same facility and benefit to the accused, and, therefore, the examination of the witnesses by the Magistrate in a case exclusively triable by a Court of Session, was made obligatory, so that the accused may have the copies of such statements and other documents, if any, mentioned in Clauses (ii) and (iii) of Section 208 furnished to him and have the benefit of preparing his defence as an accused in a police case will have.
In Babu Ram v. State of U.P 1978 Cri LJ 1430 (All) dealing with the same section it was held that in a case exclusively triable by the Court of Session, the accused can be summoned only after the Magistrate had called upon the complainant to produce all his witnesses and examined them on oath.
12. Mr. Shankar Rao Bilolikar, the learned Counsel for the first Despondent placing reliance upon a decision of the single Judge of this Court in B. S. Rao v. T.V. Sarma 1976 Cri LJ 902, contended that the proviso to Section 202(2) of the Cr. P. C. is intended to provide a safeguard against a Magistrate refusing to take cognizance of offences even before examining all the witnesses. It is no doubt true that the learned Judge has held that this section is not intended to give a lever to the accused to complain that the Magistrate should not have taken cognizance of the case without examining all the complainant's witnesses and it is only a complainant that can complain against the refusal of a Magistrate to take cognizance of the case without examining all his witnesses and that the accused does not enter the picture at all at that stage and the enquiry by the Magistrate under Section 202 is only for the purpose of enabling him to decide whether or not there is sufficient ground for proceeding. We are unable to agree with this view of the learned Judge for the reasons we have already indicated above. The section obviously is conceived in the interests of both the complainant as well as the accused. It restrains the Magistrate from refusing to take cognizance of the offences without examining all the witnesses and at the same time it is also intended to give an opportunity to the accused to know the entire case against him. Though the accused would not have the right of cross examination at that stage before the Magistrate, he has a right to cross-examine the witnesses at the stage of sessions trial with reference to their earlier statements before Magistrate. Therefore with great respect we are unable to agree with this reasoning of the learned single Judge of this Court.
13. A feeble attempt was made that the order is in the nature of an interlocutory one and as a revision is barred under Section 397(2) of the Cr. P. C. this Court should not exercise power under Section 482 as that would be circumventing the provisions of Clause (2) of Section 397 of the Cr. P. C. It is true that no revision lies against an interlocutory order, but in exceptional cases this Court has power under Section 482 of the Cr. P. C. to interfere when mandatory provisions of the statute have been violated and the rights of parties are affected. Since we have come to the conclusion that the mandatory provisions of- Section 202(2)! have been violated, we think it is a fit case where inherent powers should be exercised in order to secure the ends of justice.
14. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 the Supreme Court has succinctly stated the circumstances under which the inherent powers of the High Court can' be exercised under Section 482 of the Cr. P. C.
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
15. It was further held that for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, and that nothing contained in Section 397(2) can limit or affect exercise of the inherent power by the High Court though such cases would be few and far between.
16. The order of the Magistrate issuing process without examining all the witnesses of the complainant is a patent illegality resulting in great prejudice to the accused and In order to secure the ends of justice, we think this is a case where our interference is called for under Section 482 of the Cr. P. C. The order of the Magistrate issuing process and the subsequent order, if any, are set aside and the Magistrate will continue the proceeding from the stage immediately prior to the order issuing process and examine the remaining witnesses of the complainant day to day and complete the examination of the witnesses as expeditiously as possible in view of the fact that the police case in respect of the other accused namely, 11 to 29 has already come to the stage of trial.
17. In the result the revision is allowed as indicated above.