H.L. Anand, J.
1. The question for decision, on a reference by one of us, Anand, J. is, if a succeeding Magistrate could issue process in a complaint of which cognizance had earlier been taken and the complainant and/or his preliminary evidence had been examined by his predecessor.
2. The circumstances in which the question arose in the two petitions, in so far as they are necessary for our present purpose, are set out in the referring order of July 10, 1984. The referring order considers at length the rival contentions, the scheme and the provisions of Ss. 6, 16, 26, 35, 190, 192, 202 to 204 and 326 of the Code of Cr.P.C. and justifies an affirmative answer to the question. It also examines the two earlier decisions of this Court in Cri. Rev. 107 of 1973, decided by Rangarajan, J. as he then was, on May 22, 1973, and in Cri. M (M) 446 of 1978, decided by R. N. Aggarwal, J., on October 5, 1978, in both of which an identical question was answered in the negative, on the learned Judges' reading of the decision of the Supreme Court in the case of Mahato : 1972CriLJ268 . The referring order further points out that in addition to the decision of the Supreme Court in the aforesaid case, Rangarajan, J. also dispelled the contention that the enabling provisions of Ss. 350 and 559 of the old Code, corresponding to S. 326 and 35 respectively of the present Code, would justify an affirmative answer to the question.
3. The arguments in support of rival contentions before us, by and large, followed the pattern at the earlier stage, as reflected in the referring order. Learned Counsel for the parties, however, referred to certain additional decisions to reinforce their respective contentions.
4. The question posed by the order of reference, in the context of the rival contentions, has three limbs :-
(i) Whether on a true construction of the scheme and the relevant provisions of the Code, a succeeding Magistrate could issue process in a complaint of which cognizance had earlier been taken and the complainant and/or his preliminary evidence had been examined by his predecessor
(ii) If so, can the decision of the Supreme Court in the case of Mahato : 1972CriLJ268 (supra) be said to point to the contrary
(iii) If the question at (ii) above is to be answered in the affirmative, is it open to this Court to ignore the decision of the Supreme Court, having regard to the provisions of Art. 141 of the Constitution, and the principles and practice in relation to per incuriam decisions of a higher court
5. The question as to the competence of a succeeding Magistrate to issue process may first be examined in the context of the scheme of the Code, and its provisions, relevant to the question.
6. S. 2(g) of the Code defines the expression 'inquiry' as meaning 'every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.' The expression 'court' and 'Magistrate', as such, are not defined by the Code. Section 3 of the Code which, according to its head-note deals with 'construction of references', however, provides that any reference without any qualifying words, to a 'magistrate' shall be constructed, unless the context otherwise requires, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate. Sub-section (2) of this section provides that, unless the context otherwise requires, any reference to the 'Court' of Judicial Magistrate, shall, in relation to a metropolitan area, be construed as a reference to 'the Court of the Metropolitan Magistrate for that area.' Chapter II of the Code deals with 'Constitution of Criminal Courts and Offices.' Section 6 in this Chapter, inter alia, provides that there shall be in every State the following classes of 'criminal courts', namely -
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrate of the second class; and
(iv) Executive Magistrates.
Chapter III of the Code deals with the subject of 'Power of Court'. Section 26, according to its head-note, deals with 'Courts by which offences are triable', and, inter alia, provides that an offence may be tried, inter alia, by any 'court by which such offence is shown in the First Schedule to be triable'. Column (6) of the First Sch. is headed 'By what Court triable', and this column mentions, among others, various 'Magistrates'. Section 27 deals with jurisdiction in the case of juveniles, and provides that 'any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960.' Section 29 is headed 'Sentences which Magistrates may pass', but the body of the section is interesting and runs thus :-
'29. Sentences which Magistrate may pass
(1) The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both;
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding one thousand rupee, or of both;
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the power of the Court of a Magistrate of the first class.'
Section 30 deals with sentence of imprisonment in default of fine, and provides that 'The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law, provided that the term 'is not in excess of the powers of the Magistrate under section 29'. Section 35, which corresponds to S. 559 of the old Code, deals with powers of Judges and Magistrates. This is how its provisions run :-
'35. Power of Judges and Magistrates exercisable by their successors-in-office :-
(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.
(2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant Sessions Judge, the Sessions Judge shall determine by order in writing the Judge who shall, for the purposes of this Code or of any proceedings or order there under, be deemed to be the successor-in-office of such Additional or Assistant Sessions Judge.
(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by order in writing the Magistrate, who shall, for the purposes of this Code of any proceedings or order there under, be deemed to be the successor-in-office of such Magistrate.'
Chapter XIV of the Code deals with conditions requisite for initiation of proceedings. Section 190 which deals with cognizance of offences by Magistrate provides that 'Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -
'(a) upon receiving a complaint of facts which constitutes such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.'
Section 191 provides for transfer of cases on application of the accused. Section 192 deals with 'making over' of cases to Magistrates, and provides that any Chief Judicial Magistrate may after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. Sub-section (2) of this section further provides that any Magistrate of the first class, empowered in this behalf by Chief Judicial Magistrate, may, after taking cognizance of an offence, 'make over' the case for inquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify and thereupon such Magistrate may hold the inquiry or trial. Chapter XV of the Code deals with Complaints to Magistrates. Section 200, which deals with examination of complainant, provides that 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. The examination of the complainant and the witnesses is, however, not necessary if the complaint is by a public servant, or if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192. The second proviso to the section runs thus :
'Provided further that if the Magistrate makes over the case to another magistrate, under S. 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.'
Section 203 deals with dismissal of a complaint and provides that '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 S. 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.' Chapter XVI of the Code deals with 'Commencement of Proceedings Before Magistrates', and in this Chapter, occurs S. 204 which is the principal section that falls for construction in this case. This is how the relevant portion of the section runs :-
'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;
(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.'
Section 326, which corresponds to S. 350 of the old Code, provides that whenever any Judge or Magistrate after having heard and recorded whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction, therein, and is succeeded by another Judge or Magistrate, who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. It further provides that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged. Sub-section (2) of this section provides that when a case is transferred under the provisions of this Code from one Judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1). Chapter XXXI of the Code deals with transfer of criminal cases. Section 406 deals with power of Supreme Court to transfer cases and appeals. Section 407 empowers the High Court to transfer cases and appeals. Section 408 empowers the Sessions Judge to transfer cases and appeals. Section 410 deals with withdrawal of cases by Judicial Magistrate which he had made over to any Magistrate subordinate to him.
7. As we pointed out in the referring order, there is a clear and definite distinction between a 'Court', properly so-called, and a 'persona designata'. When seizing is taken of a matter by a persona designata, it is a decision or cognizance of a matter by a designated person, authorised to do so in that behalf. Where, however, a matter, whether of a civil nature, or of criminal nature, is filed in a Court, properly so-called, cognizance or seizing is taken by the court and there is a distinction between the 'Court' and Judicial Officer, who, for the time being, presides over it. When a persona designata, who has taken seizing of a matter ceases to exercise jurisdiction, for any reason, his successor is perhaps incapable of exercising jurisdiction unless specifically designated as such. Where, however, a Court is properly seized of a matter, the change in its Presiding Officer does not make any difference, and since the Court had taken seizing of the matter, no further cognizance or seizing, by the succeeding Presiding Officer, is necessary until there is a specific provision or a known principle of law in that behalf, which may necessitate such a course. Court is the institution and the seat of judicial power, the presiding officers are the human instrumentality through whom the Court functions and exercises the power. Presiding Officers come and go, the Court, until abolished, survives the movement of the presiding officers.
8. Ordinarily, it is the policy of law, in civil, criminal and other proceedings, that a matter before a Court is decided, as far as possible, by the Presiding Officer, who had dealt with the matter, at the earlier stages because the Presiding Officer, who has for example, examined evidence, has had first hand impression of the witnesses, the conduct of the parties, as indeed, the demeanour of the witnesses, and would, thereforee, be in the best position to decide the questions in controversy between the parties. This is, particularly, so on the criminal side as an essential emanation of the requirement of a 'just and fair trial'. It is, however, not always possible to follow this practice, either on the civil or the criminal side, and the matters have invariably to be decided by Presiding Officers, who have not recorded evidence, or where the evidence was recorded, and other stages of the proceedings were conducted, partly by such Presiding Officers, and partly by one or more of his predecessors-in-office. The enabling provisions of S. 35 and S. 326 of the Cr.P.C. with certain additional safeguards built into the proviso to sub-section (1) of S. 326 of the Cr.P.C. are based on the legislative recognition of such eventualities. Section 326, however, on one reckoning, if due weight is given to the head-note, would appear to be inapplicable to any inquiry, other than an inquiry in committal proceedings, although the body of the section does not appear to admit of such a limitation, particularly, having regard to the fact that the expression 'inquiry' has been defined by S. 2(g) of the Code to mean, 'every inquiry, other than a trial, conducted under this Code by a Magistrate or Court' and would, thereforee, be wide enough to include an inquiry by a Court, seized of a complaint under Chap. XV thereof. On general principle, thereforee, there could be no bar to a succeeding Magistrate continuing the proceedings in an inquiry or a trial from the stage where the succeeded Magistrate left them off.
9. On a combined reading of the provisions of Ss. 200 to 204 of the Code, in the context of the classes of Criminal Courts, powers of Courts, including the competence of successor-in-office of a Presiding Officer of a Court to exercise powers and duties of the succeeded Presiding Officer, it follows that references in these provisions to a 'Magistrate' must be read as meaning the Criminal Court, over which the Magistrate presides, with the result that once a Court has taken cognizance, there is no difficulty in case of a change of the Presiding Officer of the Court for the succeeding Presiding Officer to continue the proceedings, where they were left off by the succeeded Presiding Officer. Some confusion, however, is possible, and has arisen because of the use of the expression 'Magistrate' in these provisions, which has created an impression, albeit a wrong one, as if cognizance of an offence was taken by the Presiding Officer and not by the Court, over which he was presiding. It is for this reason that S. 204 has at times been wrongly read as meaning that only such Magistrate could issue process who had taken cognizance of the matter himself, as it were, thereby ignoring that even in the scheme of the Code cognizance is taken by the 'Court', but through a Presiding Officer, for the time being appointed to that Court. Some further confusion has arisen because of the second proviso to S. 200, according to which a Magistrate 'makes over' the case for inquiry or trial to the another Magistrate under S. 192 after examining the complainant and the witnesses, 'the latter magistrate need not re-examine them'. This proviso has been read to imply that such re-examination is in terms dispensed with only in cases where S. 192 was invoked and that in cases other than that it was incumbent on the Magistrate, who had not taken initial cognizance, but has been called upon a deal with the complaint, at a subsequent stage, to examine the complaint and the witnesses even if they have been examined before by the Magistrate, who had earlier taken cognizance of the complaint. In taking this view, it is ignored that the second proviso was merely intended to enable the Magistrate to whom the case is made over to continue the proceedings without unnecessary repetition, of what had already happened and such a proviso was necessary because the Magistrate to whom the case is made over u/S 192 would be outside the purview of S. 35 of the Code for the obvious reason that such magistrate could not be considered a 'successor-in-office' of the magistrate who made over the case under S. 192 of the Code. Sub-section (2) of S. 326 no doubt provides that when a case is transferred 'from one Magistrate to another' the former shall be deemed to be succeeded by the latter, within the meaning of sub-section (1) of that section. There would, however, have been two difficulties in working out this provision if the second proviso to S. 200 had not been there. Firstly, it was doubtful if, having regard to the headnote of S. 326 this section would regulate an inquiry under Chap. XV of the Code. Secondly, sub-section (2) of this section would attract the section only if it was a case of transfer of a case 'from one magistrate to another' and it will be doubtful if 'making over' of a case 'by a magistrate to another', under S. 192, would be tantamount to a case being 'transferred from one magistrate to another', there being a distinction between a transfer of a case 'from one magistrate to another' and 'making over' of a case 'by a magistrate to another'. I would, thereforee, have no difficulty in arriving at the conclusion that by virtue of the provisions of S. 35 and 326 and the Scheme of the Code and having regard to the distinction between a criminal court, and a presiding officer of the Court, it would be competent for any succeeding Presiding Officer of the Court to issue process in a complaint, where cognizance of an offence had been taken by the Court, when it was presided over by his predecessor, who may have also partly or wholly recorded the statement of the complainant and of his witnesses.
10. The learned Judges, who had decided the earlier two cases, were primarily influenced by the decision of the Supreme Court in the case of Mahato : 1972CriLJ268 (supra), and prima facie fell in error in ignoring the clear distinction between the 'Court' and the 'Presiding Officer' as indeed, the clear provisions of the Code enabling a successor-in-office to continue the proceedings. Rangarajan, J. unfortunately brushed aside the provisions, corresponding to Ss. 35 and 326 of the present Code, as empowering the succeeding Presiding Officer for reasons which cannot stand close judicial scrutiny.
11. The Code does not appear to either suffer from any lacuna or unnecessarily impel avoidable duplication of work in the matter of recording of the statement of a complainant or his evidence, before issue of process in a complaint case, or for that matter, in cases instituted otherwise than on a complaint of an offence. If, after taking cognizance of a complaint, the Presiding Officer of a Court 'makes over' the case for inquiry to another Court of competent jurisdiction re-examination of the complainant, or of his witnesses, by the Court, to which the case is made over, is not necessary, if the Court making it over has done it, and this is accomplished by the second proviso to S. 200 of the Code. The second proviso is, however, in terms confined to a case made over under S. 192. The proviso has no application to a case which has been 'transferred' from one Court to another by a superior court. These are provided in Chapter XXXI of the Code. In such cases the provision of sub-section (2) of S. 326 of the Code, which incorporates a legal fiction that where a case is transferred from one court to another, the former court would be deemed to cease to exercise jurisdiction and to be succeeded by the latter, within the meaning of sub-section (1) of that section, obviates what may be unnecessary duplication of work. Should, however, an 'inquiry' under Chapter XV be outside the purview of S. 326, because of the indication from its headnote, the provision of S. 35 would come in aid of the situation and, on the principle incorporated in sub-section (2) of S. 326, the transferee Magistrate or Judge would be deemed to be the successor-in-office. In the third class of cases, in which a case is neither made over to a court nor is transferred from one court to another, but there is only a change in the presiding officer of the same court, S. 35 comes in aid to avoid duplication of work. There is, thereforee, no category in which the court is obliged to indulge in the luxury of duplication of work, except where a case is covered by proviso to Section 326, and the succeeding Presiding Officer is of opinion that further examination of any other witnesses 'is necessary in the interests of justice'. A word is perhaps necessary to explain the opening part of sub-section (1) of S. 204. There is nothing in this section which precludes the possibility of a Magistrate dealing with the matter at the stage of proceeding, even when the Magistrate had not taken initial cognizance, because when the initial cognizance had already been taken by the Court, presided over by a predecessor, and preliminary step had already been taken, the Magistrate who decides to proceed under S. 204, nevertheless proceeds after he takes 'cognizance' because otherwise how does he proceed It is important to bear in mind in this context that when initial cognizance was taken by his predecessor, the cognizance or the competence to take cognizance did not get exhausted, as it were. If taking cognizance only means applying judicial mind for the purpose of proceeding under the Code, then the moment a successor Magistrate applies his mind to proceed further from the stage the succeeded Magistrate left it off, he takes cognizance, even though cognizance had already been taken by the predecessor, albeit preliminary cognizance.
12. The conclusion arrived at by me on general principle, and on an examination of the scheme and relevant provisions of the Code, finds support from a Full Bench decision of the Patna High Court in the case of Krishnadeo Prasad : AIR1965Pat1 . Relying on an earlier decision of the Calcutta High Court : AIR1938Cal195 and distinguishing an earlier decision of the Patna High Court, the Full Bench held that it was the Magistrate taking cognizance of an offence on a complaint, or receiving the complaint when it is filed, who can pass an order under S. 203 or 204 in respect of that case, 'but his successor-in-office, either temporary or permanent, can also pass an order under those sections'. It was further observed that a Magistrate to whom the case was 'transferred' may also pass an order u/s. 203 of the Code. Except the two earlier decisions of the Court, referred to above, no other decision was cited in support of the contention that a succeeding magistrate was not entitled to issue process on the basis of cognizance taken by his predecessor. In the way I have looked at the power of the succeeding Magistrate to issue process in the context of the scheme and the relevant provisions of the Code, these two decisions do not appear to me to represent the true legal position, and I say so with respect. These two decisions are primarily based on the decision of the Supreme Court in the case of Mahato : 1972CriLJ268 (supra) and that takes me to the second limb of the question, if that decision could be legitimately understood as reinforcing the contention that a successor Magistrate was disabled from issuing process where his predecessor had taken cognizance and recorded evidence notwithstanding the enabling provisions of Ss. 35 and 326 of the Code.
13. The case of Mahato : 1972CriLJ268 (supra), which was relied upon in the earlier two decisions of this Court referred to above, had really no relevance to the fact situation before this Court, either in the earlier cases, or in the present set of petitions. Mr. Sarkar, the Magistrate, who had issued process in that case, was neither the Presiding Officer of a 'transferee' Court, nor the ' successor-in-office' of Shri S. K. Gangoli, who was the Presiding Officer of the Court, which had taken cognizance of the complaint. It was in this context that the Supreme Court observed that Sarkar could have proceeded with the complaint only if either he had 'taken cognizance' or the case had been 'transferred' to him. The Supreme Court was, however, not concerned with the third possibility where the Presiding Officer proceeding with the case was successor in office of the Presiding Officer, during whose tenure cognizance had been taken. This authority was thereforee, of no help in the fact situation in the two cases, referred to above, and it is not possible to spell out of this decision any support for the proposition that a succeeding Magistrate could not issue process where cognizance had been taken and statement of the complainant or his witnesses had been examined by his predecessor.
14. A contention was raised on behalf of the petitioners that the Supreme Court in the case of Mahato : 1972CriLJ268 (supra) purported to lay down exhaustively the situations in which process could be issued on a complaint by a Magistrate. This is not borne out by the decision. The Supreme Court was not concerned in that case with the issue of process by a succeeding Magistrate as there was no occasion for the court to consider such class of cases. The decision leaves no manner of doubt as to the class of cases with which the Court was dealing in that case. With a view to eliminate any possible doubt, I made an attempt to get the paper-book of that case to make sure if the Supreme Court was concerned in that case with the succeeding Magistrate, but the paper-book had already been destroyed under the Rules. However, from the recital of facts in the judgment, there can be little doubt that the Magistrate, who had issued process in that case, was not the successor-in-office of the Magistrate, who had taken cognizance and had recorded the statement of the complainant and his witnesses.
15. It was further urged on behalf of the petitioners that the decision in the case of Mahato : 1972CriLJ268 (supra) was not distinguishable because there was no indication in the judgment of Shri Sarkar, who issued the process, was or was not the successor of the Magistrate, who had taken cognizance of the complaint, and had recorded the statement of the complainant, and that when the Supreme Court pointed out in that case that there were only 'two courses' open for issue of process, namely, either by the Magistrate 'who takes cognizance' or a Magistrate to whom the case 'has been transferred', the third possibility of a successor Magistrate issuing process was impliedly excluded. It is not possible to agree with this contention. The Court was not concerned in that case with a successor Magistrate, but a Magistrate, who was presiding over an entirely different court, which had neither taken cognizance of the complaint earlier nor was a Court to which the case had been transferred. The Presiding Officer of that Court was also not the successor so as to attract the enabling provision of the Code, which clearly empowers a succeeding Judicial Officer to exercise all the powers of the predecessor. The Supreme Court was not concerned with that class of cases. It is precisely for this reason that the decision of the Supreme Court would not be an authority for the proposition that even a succeeding Magistrate would not have power to continue the proceedings from the stage where they have been left off by his predecessor. In the way I have looked at the second limb of the question, the third limb as to the binding nature of the precedents of a higher court, does not survive for consideration.
16. Although a specific question has been referred for decision of the Bench, it is obvious that if the question is answered in the affirmative, the challenge to the impugned orders do not survive and the two petitions must fail. We would, thereforee, answer the reference in the affirmative and in consequence dismiss the petitions. The Courts concerned would proceed with the complaints with expedition to make up for the time lost in the proceedings in this Court.
J.D. Jain, J.
17. I agree.
18. Reference answered in affirmative.