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Sidhan and ors. Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ470
AppellantSidhan and ors.
RespondentState of Kerala and anr.
Cases ReferredSulaiman v. Eachara Warrier
Excerpt:
- - the accused were not happy with this. they were armed with dreadful weapons like crow bars and sticks. 1, being not satisfied with the case registered by the police and the investigation conducted by them, filed a private complaint alleging an additional offence punishable under section 307, i. the purpose is to rectify miscarriage of justice arising from wrong conceptions of law, irregularity of procedure, violation of fundamental rules of evidence, neglect of proper precautionary measures or the like. therefore the high courts will be slow to interfere in revision with criminal proceedings unless substantial grounds resulting in failure of justice are made out. normally revisional jurisdiction is to be exercised only in exceptional cases. especially when, as in this case, two.....orders. padmanabhan, j.1. this criminal revision petition was filed by the 10 accused against their conviction and sentence in s. c. nos. 47 and 71 of 1979 on the file of the additional assistant sessions judge, trichur, which was confirmed by the sessions judge, trichur, in crl. a. no. 22 of 1980.2. both the cases arise out of the same incident. all the ten revision petitioners were the accused in both the cases. one is a police charge and the other a private complaint. the private complaint resulted in sessions case no. 47 of 1979 by committal. sessions case no. 71 of 1979 arose out of the police charge. the private complaint was for offences punishable under sections 143, 148, 149, 324, 326, 341 and 307 of the indian penal code. the police charge was also for identical offences with.....
Judgment:
ORDER

S. Padmanabhan, J.

1. This Criminal Revision Petition was filed by the 10 accused against their conviction and sentence in S. C. Nos. 47 and 71 of 1979 on the file of the Additional Assistant Sessions Judge, Trichur, which was confirmed by the Sessions Judge, Trichur, in Crl. A. No. 22 of 1980.

2. Both the cases arise out of the same incident. All the ten revision petitioners were the accused in both the cases. One is a police charge and the other a private complaint. The private complaint resulted in Sessions Case No. 47 of 1979 by committal. Sessions Case No. 71 of 1979 arose out of the police charge. The private complaint was for offences punishable under Sections 143, 148, 149, 324, 326, 341 and 307 of the Indian Penal Code. The police charge was also for identical offences with the only exception that the offence under Section 307, I.P.C. was not included therein.

3. Since the private complaint included an offence under Section 307, I.P.C. which is exclusively triable by the Sessions Court, it was committed to the Sessions Court by the Magistrate. In the police charge there was no offence under any section which was exclusively triable by the Sessions Court. Therefore after taking cognizance, that case was pending before the Chief Judicial Magistrate, Trichur as C. C. No. 182 of 1979. One of the accused filed Crl, M. P. No. 2 of 1979 to stay the trial of Sessions Case No. 47 of 1979 till the disposal of C. C. No. 182 of 1979. That was dismissed. Thereafter, the same accused filed Crl. M. P. 554 of 1979. The prayer was to get C.C. No. 182 of 1979 transferred to the file of the Addl. Asst. Sessions Judge, before whom Sessions Case No. 47 of 1979 was pending. Instead of ordering transfer of the case as prayed for, the learned Sessions Judge ordered the Magistrate to commit C. C. No: 182 of 1979 also to the Sessions Court. That is how the police charge happened to be committed and tried as Sessions Case No. 71 of 1979 before the same Court. The two cases were not clubbed together, but kept separate and jointly tried.

4. The case arose in this way. Most of the accused are related to each other. They were on inimical terms towards P. W. 1 Damodaran. P. W. 1, Damodaran was the agent of P. W.4, Babu who was a contractor. P. W. 4, Babu, as contractor, has taken up the work of constructing the District Co-operative building, Palghat. The prior contractor was the first accused. The accused created labour problems and therefore on behalf of P. W. 4, P. W. 1 brought labourers from outside. The accused were not happy with this. During the first week of May, 1979 accused 1 to 5 warned and threatened P. W. 1 with dire consequences if he was bent upon helping P. W. 4 to bring labourers from outside. But P. W. 1 did not give much heed to the threat. Therefore, the accused, most of whom are related to each other, conspired among themselves to murder P. W. 1 and assault his associates and formed themselves into an unlawful assembly at about 10.30 p.m. on 25-5-1979 near the bridge at Pullu. They did so because they had information that P. W. 1 and his associates have gone to Trichur in a car and they will be coming back through that road, which is the only available access for them. They were armed with dreadful weapons like crow bars and sticks. They placed obstruction in the road near the bridge by placing benches, desks, stone etc. Armed with the above weapons, they waited beneath the bridge.

5. Just before 10.30 p.m., P. W. 4 Babu along with Suresh, son of P. W. 1, came in a motorbike. They were stopped by road block. Immediately, P. Ws. 1, 2 and 3 came in a taxi car, KLH 9181, driven by P. W. 5, Kunjumarakkar. They were also stopped by road block. Immediately all the accused came out of the hiding place with the deadly weapons, committed rioting and caused wrongful restraint to the abovesaid persons. Accused 2 and 3 opened the door of the car and accused 4 and 5 pulled P. W. 1 outside. First accused beat him on his head with a crow bar causing serious injuries. He directed the other accused to murder P. W. 1. P. W. 1 fell down. Thereafter the crow bar was pushed into his mouth resulting in removal of some of his teeth and dislocating some others. P. W. 2 Krishnan and P. W. 4 Babu tried to lift P.W.1 up. Accused No. 8 beat Krishnan on his left shoulder with an iron rod. Accused 2 and 7 beat Babu with bamboo sticks and accused 6, 9 and 10 beat P. W. 1 on different parts of his body. Thereafter, they left the scene believing that P. W. 1 is no more. The injured were removed to Anthikad Hospital on that night itself and attended by P. W. 8. On getting information from the Hospital, P. W. 9 recorded the first information statement of P. W. 2 from the hospital the next day at 10.50 a.m. and thereafter he registered and investigated the case.

6. After getting discharge from the hospital, P. W. 1, being not satisfied with the case registered by the police and the investigation conducted by them, filed a private complaint alleging an additional offence punishable under Section 307, I.P.C.

7. As I have stated earlier, the two cases were not clubbed together by the Addl. Asst. Sessions Judge. He only had a joint trial. The evidence was recorded in Sessions Case No. 47 of 1979. P. Ws. 1 to 9 are the witnesses examined. On the defence side no witness was examined. The prosecution produced and proved Exts. P 1 to P 10. Exts. D 1 to D 6(b) are the defence documents. There are two material objects namely, iron bar and wooden stick. Considering the entire evidence, the Addl. Asst. Sessions Judge came to the finding that all the accused were guilty of the offences for which the complaint was filed. They were convicted accordingly. First accused was sentenced to undergo rigorous imprisonment for two years for the offence under Section 307, rigorous imprisonment for two years and a fine of Rs. 500/- for the offence under Section 326, rigorous imprisonment for two months for the offence under Section 143, rigorous imprisonment for six months for the offence under Section 148 and simple imprisonment for one month for the offence under Section 341. Accused 2 to 10 were each sentenced to undergo rigorous imprisonment for six months for the offence under Section 307, I.P.C. rigorous imprisonment for six months and a fine of Rs. 100/- under Section 326, rigorous imprisonment for two months for the offence under Section 143, rigorous imprisonment for six months for the offence under Section 148 and simple imprisonment for one month for the offence under Section 341. Default sentences were also awarded. No separate sentences were awarded for the other offences. All the sentences were directed to be run concurrently. From out of fine, if collected, Rs. 1,000/- was directed to be paid to P. W. 1 as compensation. 1 have already stated that the conviction and sentences were confirmed in appeal by the Sessions Judge.

8. Counsel for the revision petitioners did not harp too much on the appreciation of evidence by both the Courts below. He only pointed out a few cirumstances, which, according to him, will justify interference under the limited revisional jurisdiction. I will be dealing with all those aspects in brief. The object of the revisional jurisdiction, unlike appellate jurisdiction, is to confer a sort of supervisory power. The purpose is to rectify miscarriage of justice arising from wrong conceptions of law, irregularity of procedure, violation of fundamental rules of evidence, neglect of proper precautionary measures or the like. Whether substantial justice has been done will be the main consideration. One of the objects of criminal law is to expedite prosecutions fairly and legally. Therefore the High Courts will be slow to interfere in revision with criminal proceedings unless substantial grounds resulting in failure of justice are made out. Even slight irregularities or improprieties not resulting in serious miscarriage of justice may not persuade the High Court to interfere in revision. Normally revisional jurisdiction is to be exercised only in exceptional cases. Especially when, as in this case, two experienced officers like the Asst. Sessions Judge and the Sessions Judge had occasion to go into the factual and legal position in detail, the trial judge having had the added advantage of recording the evidence and noting the demeanour of witnesses, the High Court will be very slow to interfere unless any of the irregularities mentioned above resulting in miscarriage of justice is made out. If rules of law of procedure and evidence are substantially complied with and no illegality or perversity resulted, the High Court will be hesitant to interfere. But where there has been failure of justice the High Court is not only justified in interfering but is in duty bound to do so in order to prevent an abuse of the provisions of law or procedure. Refusal to exercise jurisdiction or its wrong or illegal exercise may be permitted fields for interference. But if the conclusions are reasonable and proper and possible in the given facts and circumstances, even if different conclusions are also possible in the opinion of the High Court, it will not interfere to substitute its own conclusions replacing the conclusions of the subordinate court. Under the revisional powers a reappraisal of the evidence for coming to independent conclusions will not be the approach.

9. P. W. 1 is the person most seriously injured. As I have stated earlier, he was the main target of attack also. He was coming in a car along with P. Ws. 2 and 3. P. W. 4 and Suresh also were there at that time since they were also stopped by the road block. P. W. 5 is the driver. From the evidence of these witnesses, there is absolutely no reason for doubting their veracity when they say that they were actually in the scence of occurrence and witnessed everything from beginning to end. Therefore they are competent witnesses also. P. W. 6 claimed that he was returning from Trichur. The version of P. W. 7 was that he was coming back from Alappad. Both the courts below have not given much importance to their testimonies. They have given valid reasons also for not accepting the evidence of these two witnesses even though it may appear from the evidence that there was the possibility of themselves also having seen the occurrence. Any how P. Ws. 1 to 5 are competent witnesses and they have given more or less identical versions of the incident from the beginning to end. Of course, there are minor discrepancies in their evidence regarding minute details of the incident including the sequence of events and overt acts. Such discrepancies are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving, tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the courts if the evidence of the witnesses are found acceptable on broad probabilities. If at all any authority is required, it could be had from S. T. Shinde v. State of Maharashtra : 1974CriLJ674 wherein it was held:

These discrepancies pertain to the precise number of blows given by the assailant, the standing or lying posture of the victim at the time of assault etc. Such discrepancies in matters of detail always occur even in the evidence of truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorisation of details. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case.

These are very valuable principles for the appreciation of the evidence of witnesses. Going by these principles, the courts below must be found to have appreciated and accepted the evidence properly, keeping in mind the relevant rules for the appreciation of evidence.

10. As I have stated earlier, the injured were directly removed to the hospital from the scene of occurrence. On that night itself, P. W. 8 had occasion to examine them. Exts. P 3 to P 5 are the medical certificates issued by him and Ext. P 6 is the discharge certificate. One of the items of attack against the ocular evidence of witnesses was that the identity of all the assailants were not disclosed to the Doctor. At that time specific mention was made only regarding accused 1 and 2. It is only natural that in that state of affairs, especially when the attack was by 10 persons, the injured may not feel it necessary to narrate the names and other details of all the assailants. Some minor corrections in Exts. P 3 to P5 were pointed out by the counsel for the revision petitioners and this ground was properly dealt with by the court below. They have stated that there is nothing to indicate that any purposeful corrections were made by the Doctor. Wound certificates issued by P. W. 8 and his evidence in the box agreed fully in all material aspects with the evidence of the occurrence witnesses.

11. Now I shall refer to the grounds of attack made by the counsel for the revision petitioners against the acceptability of the evidence tendered by P. Ws. 1 to 5. One of the grounds is that all of them are relations and interested persons. It has to be remembered that the incident was at 10.30 in the night on a new moon day. Naturally no independent witness could be expected to be at the scene of occurrence at that time. There is nothing to show that anybody other than P. Ws. 6 and 7 had occasion to witness the occurrence except P. Ws. 1 to 5 and the accused. The relationship or the interested nature of the witnesses by themselves are not indications to find that they are unreliable. Their depositions will have to be scanned on the merits to test reliability. If found acceptable, the evidence cannot be discarded simply on the basis of relationship and interest. In fact interested and related witnesses ordinarily may not show any tendency to give evidence for the purpose of implicating innocent persons by excluding the actual culprits. I have gone through the evidence of P. Ws. 1 to 5 and I had occasion to peruse the judgments of the Courts below. I do not find any reason at all to come to the conclusion that the evidence tendered by P. Ws. 1 to 5 do not represent the true state of affairs.

12. Another contention raised by the counsel for the revision petitioners was that in the absence of an identification parade, the evidence of P. Ws. 1 to 5 cannot be accepted regarding identity especially when the Doctor was not informed about the identity of all the assailants. I have pointed earlier that the Doctor attended the injured shortly after the occurrence and at that time P. W, 1 was in a serious condition. Under such circumstances, the witness cannot be expected to give much importance in informing the Doctor about the identity of the assailants. The First Information statement was given the next day between 10 and 11 a.m. by P. W. 2, who was one of the injured. In Ext. P 1 the names and other details of all the accused were given correctly and a narration of the incident was also correctly given. P. Ws. 1 to 5 as well as the accused are persons belonging to the same village and known to each other for a pretty long time. Such being the case, I fail to understand the necessity for conducting a test identification parade. Further, evidence by identification is only for the purpose of ascertaining whether the investigation is moving in the correct line. Such evidence cannot substitute the place of substantive evidence. Evidently that evidence could only be considered along with the substantive evidence tendered before court including the identity of persons. When the accused are not strangers and when the witnesses were able to identify them correctly by names and other details, the question of conducting identification parade is out of place. Therefore, the contention in this respect is not having any force at all.

13. Some sort of stress was made on a minor discrepancy regarding the number of bloodstained teeth recovered from the scene of occurrence. When the mahazar shows that there were six teeth recovered from the scene, the evidence of P. W. 1 shows that he has lost only two or three teeth. This type of discrepancy does not have much bearing in the acceptability of the evidence on broad probabilities. One of the contentions is that eventhough the incident was on 25-5-1979, and the first information statement was given on 26-5-1979, the first information statement and the first information report are seen received in court only on 28-5-1979. It appears that such a contention was not raised before the courts below. The evidence of P. W. 2, who gave the first information statement and the evidence of P. W. 9, Sub-Inspector of Police, who recorded the same show that the statement was recorded and the case was registered on 26-5-1979 itself. There is absolutely no reason to disbelieve their versions. The first information statement was recorded at 10.50 a.m. on 26-5-1979 and the case was registered at 12-15. The next day (27-5-1979) was Sunday and as such a holiday. Anyhow there is nothing for me to consider that these records were created subsequently and hence the delay was occasioned. The only other infirmity pointed out was the omission in the scene mahazar to note the existence of light which enabled P. Ws. 1 to 5 to see everything and identify the assailants. The occurrence witnesses have spoken to light from three sources. There was the headlight of the car and this is only probable and it cannot be mentioned in the scene mahazar which was prepared the next day. The witnesses mentioned about the existence of electric light-from a lamp post in the street as well as from a nearby workshop. An omission by the person who prepared the scene mahazar the next day in day light cannot by itself be taken as a ground for concluding that the witnesses were perjuring in this respect. On the whole the appreciation of evidence and the factual findings of guilt concurrently entered by both the courts below do not require interference under the revisional powers. Those findings are reasonable and proper and there is no irregularity, impropriety or miscarriage of justice.

14. The main attempt of the revision petitioners was to prick holes on the basis of some legal flaws for the purpose of setting aside the conviction in order to get a remand for a retrial of the cases. Three grounds were raised by the counsel in this connection. (1) Eventhough the cases ought to have been clubbed and tried together as enjoined by Section 210 of the Code of Criminal Procedure, the Addl. Asst. Sessions Judge did not do so. He kept both the cases separate and recorded evidence only in Sessions Case No. 47/79 and used that evidence in Sessions No. 71/79 and entered conviction in that case. This is illegal. (2) The order passed by the Sessions Judge for committal of C.C. 182/79 to the Sessions Court was illegal and without jurisdiction and it resulted in material prejudice to the revision petitioners in the trial of the cases and (3) The provisions of the proviso to Section 202(2) of the Criminal P.C. was not complied with and this also resulted in material prejudice. On these three grounds the counsel contended that the conviction and sentences cannot stand and hence they will have to be set aside by ordering retrial with a direction to club the two cases together.

15. It appears to me that the provisions of Section 210 of the Criminal P.C. are not attracted in this case. Section 210 reads thus:

210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence - (1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.

16. This section postulates a contingency, where, after the commencement of the new Code, where a complaint is filed, and it is pending enquiry or trial, it is made to appear to the Magistrate, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the enquiry or trial held by him. Then only he need stay the proceedings and call for a report. The provisions of Section 210(2) will be attracted only in such a case. It may be reasonable to hold that at the time of institution of complaint case the police investigation must have started. But that is not a matter which is relevant for the purpose of the case in hand. Here, the police investigation started on 26-5-1979. The complaint was instituted long afterwards. In order to attracts. 210(l)and (2), it is necessary that when the complaint case is instituted or when the Magistrate is made known about the investigation during the enquiry or trial of the complaint case, the police investigation is pending and it is in progress and not finalised. In this case the police charge was laid before Court on 18-7-1979. Cognizance was taken. The, complaint was filed only subsequent to that. Therefore Section 210 is definitely out of question.

17. In the Full Bench decision of our High Court in Natesan v. Peethambharan 1984 Ker LT 116 : 1984 Cri LJ 324 (FB), it was observed:

Section 210 of the Code deals with a case where pending a case arising on a private complaint, it is brought to the notice of the Court, that a police investigation is in progress. That does not cover a case where after the police charge is filed, an aggrieved person approaches a criminal Court with a private complaint with a slightly different version of the same transaction or implicating more persons than are found as accused in the police charge. In such a situation, the provisions in Section 210 of the Code are not attracted.

18. In this case, though accused in both the cases are the same, versions in both the cases are not the same. There is a slight difference in the sections of the offence also. In : 1986CriLJ831 what was decided was that it is not permissible for the Court under Section 223 of the Criminal P.C. to club and consolidate the police case and private complaint where the versions are materially different, contrary and mutually exclusive. That may not apply to the facts of the case before me. Anyhow Section 210(2) of the Code is not applicable for the reasons already stated. In Natesan's case 1984 Ker LT 116 : 1984 Cri LJ 324 (FB) at p. 122 : Cri LJ at p. 328 it was held:

It may, perhaps, be that where the provisions of the Code compel adoption of two different procedures in two cases arising with reference to the same offence, he may have two cases on his file and proceed differently; or where consolidation of the two cases is allowed, he may have to hold a single enquiry or trial.

19. In this case the Magistrate seems to have committed an irregularity. He kept both the cases separate and distinct, but tried them together without recording evidence in Sessions Case No. 71/79. At the same time conviction was entered in Sessions Case No. 71/79 also on the evidence adduced in Sessions Case No. 47/79. As held by the Division Bench in Asokan v. Narayanan 1972 Ker LT 728 this procedure is irregular. But such a procedure adopted by the Asst. Sessions Judge has not resulted in prejudice. In fact for the same offence, the Asst. Sessions Judge convicted and sentenced all the accused in Sessions Case No. 47/79. He unnecessarily underwent the formality of repeating the conviction and sentences in Sessions Case No. 71/79 also. It appears that in Sessions Case No. 71/79 where there is no charge for an offence under Section 307 of the Indian Penal Code, conviction and sentence seems to have been repeated for that offence also. He could have avoided such a course by saying that in view of Section 300 of the Criminal P.C. and Article 20(2) of the Constitution, Sessions Case No. 71/79 does not arise for consideration because in Sessions Case No. 47/79 they were tried and convicted for the same offence. Sessions Case No. 71/79 could and ought to have been closed in that way. But on account of the irregularity committed by the Judge there is no question of prejudice or harassment. Except being formality, the conviction and sentences in Sessions Case No. 71/79 does not serve any purpose at all. A second trial or subsequent conviction, in essence and substance is actually not involved. The irregularity is only curable under Section 465 of the Code. Anyhow by way of caution, I provide that while sustaining the conviction and sentences in Sessions Case No. 47/79, the subsequent conviction and sentences in Sessions Case No. 71/79 will stand set aside in view of the provisions of Section 300 of the Criminal P.C. and Article 20(2) of the Constitution.

20. It was the first accused who filed Cri. M.P. 2 of 1979 to stay Sessions Case 47/79 pending disposal of C.C. 182 of 1979 (Police Charge). When that petition was dismissed, he moved Cri. M.P. 554 of 1979 praying that C.C. 182 of 1979 may be transferred to the file of the Addl. Assistant Sessions Judge. It was in that petition that the Sessions Judge passed the order directing the Magistrate to commit C.C. 182/79. Section 193 of the Code reads thus:

193. Cognizance of offences by Courts of Session - Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.

The Sessions Judge can take cognizance of an offence as a Court of original jurisdiction only by the process of committal except as provided under Section 319 of the Code which reads:

319. Power to proceed against other persons appearing to be guilty of offence - (1) Where in the course of any enquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such persons for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under Sub-section (1) then -

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

The provisions of Section 319 of the Code are not attracted in this case. In Natesan's case 1984 Ker LT 116 : 1984 Cri LJ 324 (FB), which was already referred to, it was observed at p. 120: Cri LJ at p. 327:

Section 193 of the two Codes deals with the taking of cognizance of offences by Sessions Courts in the same manner. Except as otherwise exclusively provided by the Code or by any other law, no Sessions Court can take cognizance as a Court of original jurisdiction unless the accused has been committed to it by a competent Magistrate. We may mention that Section 351 of the 1898 Code and Section 319 of the 1973 Code are, so to say, exceptions to this rule.

21. It is said that committal could be only under Sections 322 and 323 of the Code and not in no other way. The further contention was that the Sessions Judge had only the power of ordering transfer of the case and not to direct the Magistrate to commit a case. As a consequence, it was pointed out that the Magistrate had no power to commit a case which he was competent to try and which was not triable exclusively by the Sessions Court.

22. This is an instance in which Sessions Case No. 47/79 and CC. 182 of 1979 related to the same incident and the same accused. Sessions Case No. 47/79 was already committed to the Sessions Court, since it involved an offence exclusively triable by the Sessions Court. The other case was not committed because the Magistrate was not competent to do so since he himself was competent to try the case. In both the cases, the scope of enquiry by the Magistrate are different. In the committal proceedings arising in a case instituted on police report, the scope of committal enquiry is limited to finding out whether the averments disclosed the offences exclusively triable by the Sessions Court. But the committal proceedings initiated on a complaint case is entirely different and all the witnesses will have to be examined. Therefore, though the two cases relate to the same incident, there was no question of consolidation of the committal proceedings. The two committal proceedings had to be kept separately for which there is no legal bar. Even after the charge-sheet was filed in the police case, the aggrieved party is entitled to file a private complaint regarding the same incident. Parallel committal proceedings are not prohibited. Here, the complaint case was committed, since it involved an offence under Section 307, IPC which is exclusively triable by the Sessions Court and the other case did not involve such an offence and therefore it was naturally not committed. The Magistrate was bound to keep that case pending on his file and proceed with it according to law. At the same time, there cannot be two parallel trials of the same persons for the same offence. Section 300(1) of the Criminal P.C. reads;

300. Person once convicted or acquitted not to be tried for same offence -(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.

It prohibits only trial again for the same offence of the persons after trial and conviction or acquittal. But Article 20(2) of the Constitution places a complete embargo on a second prosecution itself.

23. It was in these circumstances that the Sessions Judge and the Magistrate were placed. The move for transfer of the case was made by the first accused himself. The Sessions Judge, though was competent to allow the prayer for transfer, the transfer of the case would not have enabled him to take cognizance in view of the prohibition under Section 193.

24. The question is whether under such circumstances, even in the absence of specific provision authorising the Sessions Judge to order committal of the case, he was competent to do so. It is true that the inherent power saved under Section 482 of the Criminal P.C. is available only to the High Court and not the subordinate Courts. But auxiliary powers, in the absence of specific provisions, in order to meet the ends of justice, are available even to subordinate Courts. Only thing is that such powers could be used only in extreme cases when there is no other remedy to avoid ends of justice being defeated. To allow two parallel proceedings, one before the Asst. Sessions Judge and the other before the Magistrate will definitely be a harassment to the accused and violation of the provisions already stated by me. In such cases, the approach of the Court should be whether the proposed action is prohibited by the Code and not whether it is permitted. The Code of Criminal Procedure is not intended as an Encyclopaedia which contains an exhaustive enumeration of all the necessary provisions to cope with all contingencies. The approach should not be that anything which is not permitted is prohibited. On the other hand, the approach must be the other way. But in order to adopt such an approach the restrictions which I have already stated are there. So also the question of prejudice is one thing which has to be kept in mind. In the State v. Sohan Lal , the Rajasthan High Court held:

We are disposed to hold the view that the trial Court has such power and should exercise it whether a legitimate occasion for doing so arises. With respect, we desire to point out in this connection that the view which seems to have weighed with certain Courts that no procedure can be adopted howsoever reasonable and proper it may be unless there is an express provision sanctioning it in the procedural Code governing the case is hardly correct. So far as we understand, the correct principle is that in matters of procedure, a particular procedure should be considered to be permitted if it is not prohibited and not that every procedure should be taken as prohibited, unless it is provided for; and there cannot possibly be any valid objection to the adoption of this general rule in cases where no prejudice thereby can ever be caused to any party, and on the other hand, the object of the kind of procedure sought to be adopted is to avoid such prejudice.

25. In the above situation, there is absolutely no illegality or impropriety in the order issued by the Sessions Court directing the Magistrate to commit C.C. 182 of 1979. That was the only course open to the Court in the circumstances to meet the ends of justice for which there was no other provision. That has not resulted in any prejudice to the accused. On the other hand it only avoided prejudice and harassment. Therefore, I am of opinion that the illegality alleged by the counsel for the revision petitioners is not available to them.

26. I am of opinion that there is no illegality or irregularity in the procedure for committal adopted by the learned Magistrate also. This contention was raised on the basis of the proviso to Section 202(2) of the Criminal P.C. which reads:

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.

27. In the complaint case, before committal, only the complainant and the three witnesses were examined by the Magistrate. But after committal the Asst. Sessions Judge examined all the witnesses when the case was tried by him as Sessions Case No. 47/79. This procedure is said to have caused prejudice to the revision petitioners. The question of prejudice need be considered only if there is an irregularity or illegality in the procedure adopted by the Magistrate in committing the case. The provision for examination of all the witnesses which is made applicable only in complaint cases seems to be for the purpose of ensuring that before committal the Magistrate is satisfied that there is a case for committal to the Sessions Court. That may be more so because the complaint case is not having the assurance of bona fides on the basis of an investigation by the police machinery.

28. But the proviso to Section 202(2) itself is concerned only with an enquiry under Section 202(1). Section 202(1) provides that in such an enquiry, the Magistrate may take evidence on oath only if he thinks fit to do so. For a Magistrate who is competent to take cognizance of an offence under Section 190, or for a Magistrate to whom a case has been transferred under Section 192 of the Criminal P.C. on a complaint even an enquiry under Section 202(1) need be conducted only if he thinks fit to do so. Only in such a case he need postpone issue of process under Section 204 and that is only for the purpose of ascertaining and deciding whether there are sufficient grounds to proceed with. Even without such an enquiry, by complying with the provisions of Section 200, the Magistrate can proceed direct to issue process under Section 204.

29. In this connection, counsel for the revision petitioners relied on certain decisions of some other High Courts.

30. Kamal Krishna v. State 1977 Cri LJ 1492 is a case in which it was held by the Calcutta High Court:

The proviso to Sub-section (2) of Section 202, Cr. P.C. enjoins that a Magistrate who has taken cognizance of an offence triable exclusively by a Court of Session will himself make an inquiry into and in doing so call upon the complainant to produce all his witnesses and examine them on oath. In other words, he is to perform certain statutory functions before issuing processes in connection with offence triable by the Court of Session. Though the procedure under the old Code which enjoined commitment inquiry has been abolished, a special procedure has been provided in Section 202, Cr. P.C. which serves the purpose of preliminary inquiry as was contemplated by the old Act. The examination of the witnesses as contemplated by the proviso to Section 202(2) must be done before process is issued. The examination of the complainant and all his witnesses is not a mere matter of formality. It is not therefore correct to say that the accused after he enters appearance cannot point out illegality in procedure at a stage prior to the issue of process as he did not then come to the picture.

So also the Bombay High Court in Shyamkant v. State of Maharashtra 1980 Cri LJ 1388 observed:

Section 202(2) proviso is introduced for the first time in the new Code of Criminal Procedure and it applies to a case which is exclusively triable by the Sessions Court, and when the prosecution is instituted on the basis of private complaint. In case of private complaint, obviously there being no earlier investigation by the police, the statement of witnesses under Section 161 and/or 162 of the Criminal P.C. are not available. Therefore, it appears that in its wisdom Legislature has made this wholesome provision. That said provision is mandatory is further clear from the provision of Section 208 of Criminal P.C.

31. But if the Magistrate thinks it not necessary to have an enquiry under Section 202(1), there cannot be any compulsion on him to have the witnesses examined. When the proviso to Section 202(2) is applicable only to an enquiry under Section 202(1), even though the proviso relates to the formalities required for the committal of a complaint case, the question of compliance of the proviso, whatever be its purpose, arises only if such an enquiry is conducted. In other words, if the Magistrate, who is competent to dispense with such an enquiry decides to do so, and proceeds to issue process after complying with the provisions of Section 200, no question of an enquiry under Section 202(1) or compliance of the proviso to Section 202(2) will arise.

32. Our High Court had occasion to consider this question directly in two cases. In Kochu Mohammed v. State of Kerala 1977 Ker LT 508 : 1977Cri LJ 1867 it was found:

From the very language, it is clear that it is entirely left to the discretion of the Court to decide whether there should be an enquiry. What is mentioned in Section 202(2) is that in an enquiry under Section 202(1), the Magistrate may, if he thinks fit, take evidence. The deduction that follows is that where the Magistrate does not conduct an enquiry under Section 202(1) he need not examine witness. Since Section 202(2) begins with the words 'in an enquiry under Sub-section (1)' the proviso to Sub-section (2)can have application only to cases where the Magistrate conducts an enquiry. It is true that Section 208 like its counterpart Section 207, directs that the Magistrate should furnish to the accused a copy of each of the statements recorded under Section 200 or 202 of persons examined by him. The provision only means that if there are witnesses examined under Section 200 or 202, the copies of their statements should be given. Section 209 which deals with commitment lays down a common procedure for cases instituted on a police report or otherwise. Thus an analysis of the provisions contained in Chapters XV and XVI shows that it is not obligatory to examine witnesses either at the pre-cognizanee stage or at the pre-commitment stage.

The self-same question arose for consideration in Sulaiman v. Eachara Warrier 1978 Ker LT 424. A Division Bench of this Court pointed out

There is nothing in the Code prohibiting a Magistrate after taking cognizance of an offence and examination by him of the complainant and the witnesses present, if any, under Section 200 from straightway issuing process under Section 204. The question then is whether the proviso to Section 202(2) stands in the way of doing that. That proviso is one to Section 202(2). Section 202(2) is specific that what is contained therein is applicable only to the inquiry referred to in Section 202(1). In Section 202(1) what is provided is that if the Magistrate thinks that postponement of the issue of process against an accused under Section 204 is necessary for deciding whether there is sufficient ground for proceeding he 'may' either inquire into the case himself or direct investigation to be made by a police officer. Mark the word 'may' there. That shows that it is open to him not to postpone the issue of process under Section 204 of the Code also. If he does not think fit to postpone the issue of process against the accused it is open to him to straightway issue process under Section 204 after examination of the persons contemplated by Section 200 of the Code. The choice is solely with the Magistrate. It is a matter entirely in his discretion. No fetter should be placed on that discretion. To tell the Magistrate that it is always desirable that in private complaints involving offences triable exclusively by the Court of Session he should follow the provisions of the proviso to Section 202(2) is to interfere with that discretion and that is not warranted by Section 202(1). Proviso (a) to Section 202(1) shows that direction regarding investigation by a police officer should not be made by the Magistrate if the offence complained of is exclusively triable by a Court of Session. In such a case, if he thinks that postponement of issue of process is necessary for finding out whether there is sufficient ground for proceeding he has to inquire into the case himself. And if he does that the proviso to Section 202(2) is immediately attracted. That proviso makes it obligatory on his part to call upon the complainant to produce all his witnesses and then to examine them on oath. But such a procedure is not contemplated if the Magistrate thinks after complying with the provisions of Section 200 that it is not necessary to postpone the issue of process against the accused for the purpose of finding out whether there is sufficient ground for proceeding.

33. It follows from the above discussion that there is absolutely no question of any illegality or irregularity in the committal proceedings. Consequently there was no occasion to have any prejudice also. These aspects were considered by the Asst. Sessions Judge as well as the Sessions Judge and found against.

34. It appears to me that the question of prejudice and illegality were raised before this Court only in an attempt to see whether they could escape conviction and sentence somehow or other by a re-trial. The case started in 1979 and we are now in 1985. I do not think that there is any necessity to accede to the request of the revision petitioners.

The Criminal Revision Petition is therefore dismissed.


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