M.D. Bhatt, J.
1. This is the accused's petition under section 482 of the Code of Criminal Procedure for quashing his commitment to the Court of Session for trial under Section 211 of the I.P.C. and also the Sessions Trial which is in advance mid stage of prosecution evidence.
2. Station Officer of police station Sleennabad Tahsil Sehore filed a written complaint against the applicant-accused Bajji, under Section 211 of the I.P.C, in the Court of Magistrate First Class Sihore, alleging that the applicant-accused had lodged a written report dated 15-3-76 with the police that Mst. Bondobai's death had been caused by lathi assaults of one Sipe-hiya and that this report, on investigation by the police, was found to be false since, Mst. Bandobai had died a natural death. The Magistrate, on the filing of this complaint, immediately took the cognizance of the offence without examining the complainant, viz. the station officer of the police station Sleennabad, under Section 200 of the Code; and also without examining the complainant and all his witnesses under Section 202 of the Code, and issued the bailable warrant for appearance of the applicant- accused. After his appearance, and after hearing the parties, the applicant-accused, vide Magistrate's order dated 13-9-76, which is impugned before me, was committed to the Court of Session to stand his trial under Section 211 of the I.P.C. After the accused's commitment to the Court of Session the learned Sessions Judge, after considering all such papers and documents, as already filed along with the complaint, framed the charge, on U-10-76, under Section 211 of the I.P.C, against the applicant-accused. Evidence of eight prosecution witnesses was recorded thereafter; and when the case was fixed for adducing remaining evidence on 4-11-76, the applicant-accused filed an application before the Court of Session for quashing the commitment proceedings on the ground of 'illegality' inasmuch as, the complainant and all his witnesses were not examined, as was required to be done by the mandatory provision viz. proviso to Sub-section (2) of Section 202 of the Cr.P.C. 1973. The learned Sessions Judge held that the complaint filed by the Station Officer, Sleennabad was a 'police report', covered under Section 190(1)(b) of the Code; and as such, the Magistrate was competent to take cognizance of offence, upon such police report; and consequently, the procedure prescribed under Sections 202(2) and 208 of the Code in the matter of 'private complaints' was not applicable .o the case and the Magistrate was right in committing the case to the Court of Session, in accordance with Section 209 of the Code, without examining the complainant or his witnesses. The applicant-accused's petition, was therefore, dismissed. Hence now, his present petition under Section 482 of the Code.
3. The learned Counsel for the applicant-accused has urged before me that the offence under Section 211 of the I.P.C, being a non-cognizable offence, which could not be investigated by the officer in-charge of the police station without sanction of the Magistrate, as enjoined by Section 155(2) of the Code, the complaint could not be treated as a 'police report' and could only be treated as a 'private complaint', necessitating, therefore, the compliance of the procedure enjoined . by Sections 202(2) and 208 of the Code; and this being not done, commitment proceedings and so also the consequent Session: Trial, deserved to be quashed.
4. I have considered the arguments in the light of the material available in the record of committal proceedings and the record of pending Sessions Trial. The foremost initial question to be considered is whether the cognizance of the offence under Section 211 of the I.P.C. by the Magistrate, was taken on a 'police report' or on a 'private complaint'. The offence under Section 211 of the I.P.C. is indisputably a 'non-cognizable offence'1 as is evident from the classification given in the First Schedule of the Cr.P.C. 1973. In the instant case, it is found that the Station Officer of the police station Sleennabad, after investigation, had filed the complaint under Section 211 of the I.P.C. describing it as Istagassa. This offence, as described, was exclusively triable by Court of Session. It is not in dispute that the police officer concerned had investigated this (non-?) cognizable case without the order of a Magistrate having power to try such case or to committing the case for trial, as is enjoined by Sub-section (2) of Section 155 of the Code. There is no doubt that the provision of Section 155(2) ibid, is mandatory (see Subodh Singh v. State 1974 Cri LJ 185 (Cal) Explanation to Section 2(d) of the Code of 1973 in the matter of definition of 'complaint', is to this effect:
Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
This definition makes it clear that a report made by the police on an unauthorised investigation of a non-cognizable case, is a 'complaint' under Section 190(1)(a) and not a 'police report' under Section 190(1)(b) of the Code. (See 41st Report of the Law Commission 'Volume I Para I to IV Page 10 and also the report of the Joint Committee on the Bill of 1970 at Page 71 also Biswanath v. State 1978 Cri LJ 318 (Cal)). In the instant case though the police had filed this Istagassa in the Court of Magistrate, the latter obviously had treated it as a 'challan' i.e. police report, as is evident from the Magistrate's Order-sheet dated 10-5-76 and treating the same as 'challan' had accordingly ordered the issue of process immediately for appearance of the accused and on the appearance of the accused and after hearing the parties, had passed the Orders of commitment on 13-9-76. Thus, procedure followed by him clearly indicates that the Magistrate, treating the Istagassa as the 'police report' and following the particular procedure for commitment of the case to the Court of Session only under Section 209(a) of the Cr. P. C, 1973. had actually committed the case to the Court of Session the offence being in his opinion triable exclusively by the Court of Session. Naturally, therefore, he had not followed the proc?dure enjo.ned by Sections 202 and 208 of the Code which was necessary in this case of a 'complaint'. The Magistrate obviously was wrong in committing the case to the Court of Session by following the procedure meant for 'police report' and by not following the procedure meant for 'complaint' which alone should have been dona. The commitment proceedings having been challenged in the Court of Session the learned Addl. Sessions Judge was wrong in holding, vide his Order D/- 4-11-76, that this Istagassa filed by the police, before the Magistrate, would be deemed to be a 'police report', entitling the Magistrate, therefore, to take the cognizance thereof under Section 190(1)(b) of the Code; and as such, this erroneous finding/being contrary to the Explanation of Section 2(d) of the Code, cannot be sustained.
5. Now the material question is whether the wrong procedure followed by the Magistrate in committing the case to the Court of Session, without following the provisions of Sections 202 and 208 of the Code, which are applicable to the case of a 'complaint', is tantamount to incurable 'illegality', vitiating, thus, the commitment proceedings and furthermore the pending sessions trial, inasmuch as, the complainant and all his witnesses had not been examined by the committing Court, before the issue of the process against the applicant-accused for his appearance. Although there is difference of opinion on this point amongst the various High Courts; but, the consensus of opinion appears to be that, before the commitment of the complainant's case to the Court of Session, the complainant and all his witnesses must be examined in the commitment proceedings and where, this has not been done, the Order of the commitment should be quashed for non-compliance of the mandatory proviso to Sub-section (2) of Section 202 of the Code. Sections 200 and 202 of the Code will, necessarily, have to be read together and appreciated, with reference to such a 'complaint' case where the offence complained of, is triable exclusively by the Court of Session. In case of a complaint where the Magistrate himself is competent to try the case, there is no difficulty in the matter of procedure. The Magistrate could well proceed to issue the process against the accused only after examining the 'com- plainant and the witnesses present'; or even without examining the complainant and his witnesses, when the complaint has been made in writing by a public servant, acting or purporting to be acting in discharge of his duties (See Section 200 and its first proviso (a), by altogether skipping over the procedure, enjoined by Section 202; or the Magistrate could equally postpone the issue of process till the holding of the inquiry under Section 202(1). But tho actual difficulty arises in a case of 'complaint' which is not triable by the Magistrate himself, but, is exclusively triable by the Court of Session. The question that looms large, in such a case, is whether the committing Magistrate could, as well, skip over the compliance of the proviso to Sub-section (2) of Section 202, and issue the process against the accused, only after following the procedure under Section 200 ibid. Ramchander Rao v. Boina Ramchander 1980 Cri LJ 593 (Andh Pra) appears to be the only D. B. decision so far, on this point. Their Lordships of the Andhra Pradesh High Court, overruling an earlier single Bench decision of the same Court, reported in Budaraju Rao v. T. V. Sarma 1976 Cri LJ 902 (Andh Pra) have succinctly observed as under at p. 595:
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. Whore the case is one triable exclusively by a Court of Session under the proviso to Sub-section (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 20: 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 the one hand is intended to restrain the Magistrate from refusing to take cognizance of the offence after examining only some witnesses, it is also intoed 1o 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.
This D. B. decision of Andhra Pradesh High Court obviously dissents, also from another earlier single Bench decision of the said Court, reported in B. Laksh-manna v. B. Narasappa 1976 Cri LJ 127 (Andh Pra). Further, this D. B. decision is equally found to be in conformity with Kamal Krishna v. State 1977 Cri LJ 1492 (Cal), Paranjyothi Udiyar v. State 1976 Cri LJ 598 (Mad), Babu Ram v. State 1978 Cri LJ 1430 (All) and also Vishnu-prasad v. Shambhu Prasad 1977 Cri LR (Madh Pra) Note 279 of this Court.
6. Thus, in view of the above, I am clearly of the view that while in other cases, it is optional with the Magistrate who takes cognizance of a complaint, to make an inquiry under Section 202 of the Code to determine 'whether or not, there is sufficient ground for proceedings', but in a case where the offences disclosed by the complaint is exclusively triable by a Court of Session (according to First Schedule), it is obligatory upon the Magistrate to make an inquiry himself and to examine not only the complainant under Section 202 of the Code, but also all his witnesses, required to be produced by him under the proviso to Section 202(2) ibid.
7. Now, the question is whether the non-compliance of the proviso to Section 202(2) of the Code, is an 'illegality', vitiating the commitment proceedings and the pending Sessions Trial, or, is merely an error, omission or 'irregularity', curable under Section 465 of the Code. The theory behind the distinction between an 'irregularity' and an 'illegality' is that Section 465(1) of the Code speaks only of an 'irregularity' which would be curable unless actual failure of justice is proved. If it is an 'illegality', the case would be out of the purview of Section 465(1) of the Code. While 'irregularity' means the failure to comply with the procedural provisions of the Code, the 'illegality' means defects which strike at the very root of jurisdiction or the substance of justice (See Iqbal Ismail Sodawala v. State of Maharashtra AIR 1974 SC 1880 : 1974 Cri LJ 1291 and Santa Singh v. State of Punjab AIR 1976 SC 2386 : 1976 Cri LJ 1875. The question of failure of justice ultimately raises a question of material prejudice to the accused (See Gurubachansingh v. State of Punjab AIR 1957 SC 623 : 1957 Cri LJ 1009 and Willie Slaney v. State of Madhya Pradesh AIR 1956 SC 116 : 1956 Cri LJ 291. Their Lordships of the Supreme Court in W. Slaney's case (supra) have observed as under (at p. 297 of Cri LJ):
Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself into a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
In the instant case, the compliance of the proviso to Sub-section (2) of Section 202 of the Code has been completely skipped over and by-passed, for committing the case to the Court of Session. The whole procedure, erroneously adopted by the committing Court, was the one, as if it were a case based on a 'police report'. Non-compliance with the requirements of the mandatory proviso to Sub-section (2) of Section 202 of the Code, cannot be treated as a mere 'irregularity' in the course of commitment proceedings, curable under Section 465 of the Code. It is much more serious. It amounts to by-passing an important stage of the commitment proceedings and omitting the whole procedure, prescribed in the matter of a complaint where the offence complained of is exclusively triable by the Court of Session. Manner of commitment, as made is altogether different from that, mandatorily prescribed by the Code. This deviation thus constitutes disobedience to an express provision of the Code as to the mode of commitment, and goes to the root of the matter resulting in 'illegality of such a character which vitiates, not only the commitment proceedings but also the consequent Sessions Trial which is at present, at a trial stage. As pointed out in 1980 Cri LJ 593 (Andh Pra) (supra), the applicant-accused, by the erroneous procedure as followed by the committing Court, is found to be completely deprived of the earlier statements of the material witnesses, required to be recorded in the Court of committing Magistrate, so as to enable him to be in a position to point out any contradictions therein, during the course of evidence in the Court of Session. He is, thus, obviously prejudiced in his defence, resulting in failure of justice. The erroneous procedure as adopted, was something so vital as to cut at the root of jurisdiction and further was so abhorrent to what one might term natural justice; and as such, deserves to be struck down as illegal, such illegality being not curable under Section 465 of the Code.
8. In view of the above, the applicant-accused's petition under Section 482 of the Code, is allowed. Proceedings of commitment, being illegal, are quashed and consequently the pending Sessions Trial too, with the direction that the complainant's case be and is now remanded to the committing Magistrate to adopt the proper procedure from the initial stage, that is, from the stage of Section 200 and onwards of the Code, and to pass the necessary orders as deemed fit, according to law.