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Boya Lakshmanna Vs. Boyachinna Narasappa and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1976CriLJ127
AppellantBoya Lakshmanna
RespondentBoyachinna Narasappa and anr.
Excerpt:
.....and examine them on oath. ..4. a reading of the above provisions would at once make it clear that whatever the offence complained of may be, it is open to the magistrate to issue process against the accused under section 204, cri......once make it clear that whatever the offence complained of may be, it is open to the magistrate to issue process against the accused under section 204, cri. p.c. after examining the complainant and his witnesses if any, present in the court at the time of the presentation of the complaint under section 200, cri. p.c. if in the opinion of the magistrate taking cognizance of the offence there is sufficient ground for proceeding. it is also open to the magistrate after taking cognizance of the offence and after examining the complainant and his witnesses if any, under section 200, cri. p.c. to dismiss the complaint under section 203, cri. p.c. if after considering the statement on oath of the complainant and the statements, if any, of the complainant's witnesses, the1 magistrate is of the.....
Judgment:
ORDER

Madhusudan Rao, J.

1. This revision is directed against the order of committal passed by the learned Judicial First Class Magistrate. Pattikonda in P.R.C. No. 6 of 1974 on the file of his court. The petitioner is the sole accused who has been committed to : he Court of Session, Kumool for taking his trial in regard to offences punishable under Sections 148 and 302 read with Section 149 I. P.C. along with the four accused in P.R.C. 5 of 1974 who were also committed to the Court of Session, Kurnool to take their trial for offences punishable under Sections 148 and 302 read with Section 149, I. P.C.

2. The facts which led up to this petition are as follows:

3. Crime No. 70 of 1974 was registered by the S.I. of police, Gonegandla against the petitioner and four others in regard to the death of one Hussainappa and the same was investigated. During the investigation the petitioner pleaded alibi. The Inspector of Police, C. B. C. I. D. investigated into the plea and held the same to be false. Another Inspector of the C. B. C. I. D. again examined the plea of the petitioner and found it to be true. On the basis of the investigation of the second C. B. C. I. D. Inspector, a charge-sheet was filed only against the other four, eliminating the petitioner. The- charge-sheet was taken on court's file as P.R.C. 5/74. The respondent herein Who gave the first report to die police filed a complaint in the Court of the Judicial First Class Magistrate, Pattikonda against the petitioner alleging that he also participated, in the murder of the deceased concerned in P.R.C. 5/74. The complaint was filed on 28-5-1974. A list of 18 witnesses was appended to the complaint. The Magistrate examined the complainant under Section 200, Cri. P.C. and after recording his sworn statement on 28-5-1974, took the case on file under Sections 148 and 302 read with Section 149, I. P.C. against the petitioner. Registering the case as P.R.C. 6/74 he posted the case to 12-6-1974 and directed the issuance of a non-bailable warrant against the petitioner. Before the v-arrant was executed, the petitioner surrendered before the Court Subsequently after hearing the advocates of the res- pondent-complainant and the petitioner-accused, the learned Magistrate passed an order on 28-9-1974 committing the petitioner to the Court of Session, Kurnool for being tried along with the four accused who were committed in P.R.C. 5/74. As against this order of committal, the instant revision is filed contending that the committal is illegal in so far as the learned Magistrate did not follow the procedure laid down in the proviso of Section 202(2), Criminal P.C. (New Code).

4. Relying on the proviso of Section 202(2) of the new Code, Sri B. Venkata Rao, the learned Counsel for the petitioner strenuously contends that under the new Code it is incumbent on the Magistrate to examine the complainant and his witnesses in cases which are exclusively triable by the Sessions Court.

To appreciate the contention it may be useful to set down the concerned provisions of the new Code to the extent relevant.

Section 200. Examination of complainant

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided that : ...

Section 202. Postponement of issue of Process: (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 inquiry 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.(3) If an investigation...

203. Dismissal of complaint: If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

204. Issue of process: (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons-case, he shall issue his summons for the attendance of the accused or

(b) a warrant-case, he may issue a warrant or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant...

4. A reading of the above provisions would at once make it clear that whatever the offence complained of may be, it is open to the Magistrate to issue process against the accused under Section 204, Cri. P.C. after examining the complainant and his witnesses if any, present in the Court at the time of the presentation of the complaint under Section 200, Cri. P.C. if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding. It is also open to the Magistrate after taking cognizance of the offence and after examining the complainant and his witnesses if any, under Section 200, Cri. P.C. to dismiss the complaint under Section 203, Cri. P.C. if after considering the statement on oath of the complainant and the statements, if any, of the complainant's witnesses, the1 Magistrate is of the opinion that there is no sufficient ground for proceeding. In the latter case, he shall have to briefly record the reasons for the dismissal of the complaint. It is not incumbent on the Magistrate to postpone the issue of process against the accused in any case. Even if it is a case in regard to an offence triable exclusively by the Court of session postponement of the issue of process is not obligatory. It is only in cases where after examining the complainant and his witnesses, if any, under Section 200, Cri. P.C. the Magistrate does not proceed either under Section 203, Criminal P.C. or 204, Criminal P.C. but thinks that the issue of process has to be postponed, he has to make a further enquiry under Section 202, Criminal P.C. Once a Magistrate decides the postponement of the issue of process after examining the complainant and his witnesses if any under Section 200, Criminal P.C. in the case of offences exclusively triable by the Court of Session, as required in the proviso to Section 202(2), Criminal P.C. he shall call upon the complainant to produce all his witnesses and examine them on oath. The proceedings under Section 202, Criminal P.C. arc not 'inter partes' and they precede the issuance of process against the accused. The words in subsection (1) of Section 202, Cri. P.C. make it abundantly clear that the proceedings under the section are to be instituted only when the Magistrate considers it necessary to postpone the issue of process against the accused and the purpose of the proceedings is just to decide whether or not there is sufficient ground for proceeding against the accused. In the instant case after recording the sworn statement of the complainant under Section 200, Criminal P.C. the Magistrate did not consider it necessary to postpone the issue of process. On the other hand he took the case on file, registered the same as P.R.C. 6/74 and passed an express order directing the issuance of a non-bailable warrant for the production of the petitioner before him. The( case passed the stage of Section 202, Cri. P.C. and there can be no question of the Magistrate being required to follow the proviso to Sub-section (2) of Section 202, Cri. P.C. Under Section 209, Criminal P.C. a Magistrate shall commit the accused to the court of session, if it appears to him that the offence is triable exclusively by the Court of session and he need not make any further preliminary enquiry as was the case under the Old Code. The petitioner who was the accused in the case appeared before the Magistrate and it is only after his appearance in pursuance of the warrant issued by the Court the Magistrate heard the petitioner's counsel and committed him to take his trial before the Sessions Court. Under the circumstances, there is absolutely nothing erroneous or irregular in the procedure adopted by the Munsif-Magistrate in committing the accused-petitioner to take his trial before the Court of Session. The revision petition is unmeritorious and it is accordingly dismissed.


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