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P.R. Murugaiyan Vs. Jayaveera Pandia Nadar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1977CriLJ1700
AppellantP.R. Murugaiyan
RespondentJayaveera Pandia Nadar
Cases ReferredBiroo Sardar v. Y. C. Ariff
Excerpt:
- - for a clear appreciation of the application of section 209, it is necessary to consider the scope of that section as well as the other provisions therein relating to committal proceedings on private complaints. the magistrate, after taking cognisance of the offence complained of, can summarily dismiss the complaint under section 205 after considering the statements on oath (if any) of the complainant and of the witnesses if he is of opinion that there is no sufficient ground for proceeding further. in case he is not satisfied with the material placed before him for the purpose of deciding whether or not there is sufficient ground for proceeding further, the magistrate can postpone the issue of process against the accused and for satisfying himself either be can (1) inquire into the.....orderratnavel pandian, j.1. the complainant in p. r. c. no. 1 of 1974 on the file of the judicial ii class magistrate, tiruthuraipoondi, has preferred this revision petition against the order of the learned magistrate discharging respondents 1 to 6 (accused 1 to 6) holding that offences alleged against accused 1 to 6 are not triable exclusively by the court of session and that it did not warrant their committal under section 209(a) crl. p. c. and that no prima facie case had been made out against accused l to 6 so as to convert the preliminary register case as a calendar case and proceed against the accused.2. the crux of the indictment of the complainant is as follows: the petitioner complainant preferred a private complaint against these respondents for offences under sections 147, 460,.....
Judgment:
ORDER

Ratnavel Pandian, J.

1. The complainant in P. R. C. No. 1 of 1974 on the file of the Judicial II Class Magistrate, Tiruthuraipoondi, has preferred this revision petition against the order of the learned Magistrate discharging respondents 1 to 6 (accused 1 to 6) holding that offences alleged against accused 1 to 6 are not triable exclusively by the Court of Session and that it did not warrant their committal Under Section 209(a) Crl. P. C. and that no prima facie case had been made out against accused L to 6 so as to convert the preliminary register case as a calendar case and proceed against the accused.

2. The crux of the indictment of the complainant is as follows: The petitioner complainant preferred a private complaint against these respondents for offences Under Sections 147, 460, 307, 342 and 323 I. P. C. alleging that on 17-11-1973, at about 10-30 p. m. while the complainant and one Sivaraj were sleeping in the room in the Lorry Booking office at Nagapattinam, about 50 persons led by respondents 1 and 2 entered into the building and that accused 1 and 2 shouted that they could not live peacefully unless the petitioner was done away with, and with the intent to kill him, the first respondent pushed him down while the second respondent kicked him and respondents 2 to 5 fisted him. Thereafter, at the instigation of respondents 1 and 2, respondents 4 to 6 tied the complainant with a rope and dragged him to the wharf. The first respondent told the other respondents that the petitioner should be taken to wharf and thrown into the sea. On seeing armed reserve constables in the harbour, accused 1 instructed the other accused to take the complainant to the godown of second accused, where he was locked. After some time, the police rescued the complainant on the information given by the complainant's brother-in-law, viz. one Mani, examined in this case as P. W. 7. Firstly, the case was taken on file by the Judicial II Class Magistrate, Nagapaltinam, and copies of the complaint were furnished to the accused on their appearance, and then it was transferred to the file of the Judicial II Class Magistrate, Tiruthuraipoondi, on 11-2-1974.

3. The complainant examined four witnesses including himself, of whom P. Ws. 1 to 3 were examined cm 27-3-1974, and P. W. 4, the Civil Assistant Surgeon attached to the Government Hospital, Nagapattinam, was examined on 1-3-1974, i, e., after the new Criminal Procedure Code (Act II of 1974) came into force. (The Act came into force, on 1-4-1974), The lower court passed the order of discharge on 6-6-1974.

4. As the question raised by the petitioner in this case is purely one of law, viz., as to whether the order of the learned Magistrate discharging the accused after the new Code came into force is legally sustainable or not, I think it is not necessary to go into a discussion of the evidence adduced on the side of the complainant.

5. Mr. Masilamani, appearing for the petitioner, would mainly contend that after the introduction of the new Code, every committal enquiry which was pending under the old Code at the commencement of the new Code, should be dealt with and disposed of in accordance with the provisions of the new Code, Therefore, according to him, after the issue of process to the accused Under Section 204, the Magistrate, before whom committal enquiry was pending, has no power as per the new Code to discharge the accused and as the case is one triable exclusively by the Court of Session, the Magistrate ought to have committed the accused to take the trial before the Court of Session. Besides this, he has also raised other contentions on the merits of the case touching upon the evidence adduced by the complainant, which, according to him, would warrant a committal. But, he did not seriously press the other contentions except the legal one.6. Mr. N. T. Vanarnamali, appearing for the accused, would urge that even under the new Code, a committing Magistrate can assess the evidence even in a committal enquiry and pass an order of discharge if it does not appear to the Magistrate that the offence is triable exclusively by the court of Session. He would stress upon the words 'it appears to the Magistrate' mentioned in Section 209 of the new Code, and argued that the Magistrate can suitably apply his mind to the facts of the case placed before him and assess the same so as to satisfy whether it appears to him that the offence is triable exclusively by the court of Session and therefore, in the instant case, the assessment of the evidence made by the Magistrate cannot be said to be outside the purview of the Act, but on the other hand the action of the Magistrate is legally justifiable and thus the order of discharge cannot be assailed.

7. Sub-section (2)(a) of Section 484 of the new Code reads as follows:

Notwithstanding such repeal, if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, enquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898, as in force immediately before such commencement, (hereinafter referred to as the old Code) as if this Code had not come into force;

Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.

In the instant case, we are concerned only with the proviso. In the light of the clear and unambiguous terms of the proviso, there cannot be any dispute that the enquiries under Chapter XVTI1 of the old Code, which were pending at the time of the commencement of the new Code, are to be dealt with only according to the provisions of the new Code. As this case was one pending disposal after the commencement of the new Code, we have to see whether the order of the learned Magistrate in discharging the accused is legally sustainable or not as per the provisions of the new Code. For a clear appreciation of the application of Section 209, it is necessary to consider the scope of that section as well as the other provisions therein relating to committal proceedings on private complaints.

8. Chapter XV of the Code consisting of Sections 200 to 203, lays down the proeedure to deal with complaints to Magistrates. Of these sections. Section 201 merely provides the procedure by Magistrates not competent to take cognisance of the case. The other three sections, viz.. Sections 200, 202 and 203 describe how a competent Magistrate should deal with complaints. Section 200 of the Code entitles a Magistrate to take cognisance of an offencern complaint; but, while doing so it is mandatory that he should examine the complainant and the witnesses present on path. The Magistrate, after taking cognisance of the offence complained of, can summarily dismiss the complaint Under Section 205 after considering the statements on oath (if any) of the complainant and of the witnesses if he is of opinion that there is no sufficient ground for proceeding further. However, he is required to state briefly his reasons therefor, as contemplated under that section. If. in the opinion of the Magistrate, there is sufficient ground for proceeding, he can issue process to the accused Under Section 204 and proceed further. In case he is not satisfied with the material placed before him for the purpose of deciding whether or not there is sufficient ground for proceeding further, the Magistrate can postpone the issue of process against the accused and for satisfying himself either be can (1) inquire into the case himself, or (2) direct an investigation to be made by a police officer, or (3) direct it to be made by some other person as he thinks fit. But, no such direction for investigation shall be made (1) where it appears to the Magistrate that the offence complained of is triable exclusively by a court of Session, or (2) where the complaint has not been made by a court unless the complainant and the witnesses present (if any) have been examined on oath Under Section 200. The provisos (a) and (b) to Section 202(I) of the new Code are mandatory and any order in contravention of the provisos would vitiate all further proceedings. Sub-section (2) of Section 202 reads that in an enquiry under Sub-section (1), it is for the Magistrate himself in his discretion to take evidence of the witnesses on oath. But, the proviso to Section 202(2) is a very important mandatory provision as it lays down a special procedure to be adopted in respect of offences complained of which are triable exclusively by the court of session. Thus, though Sub-section (2) of Section 202 is discretionary in its nature, empowering the Magistrate to take evidence of witnesses, the proviso to that section fetters that discretion of the Magistrate in respect of offences triable exclusively by the Court of Session. Now I shall extract proviso (a) to Sub-section (1) and the proviso to Sub-section (2) of Section 202, as they aro necssary for our further discussion. The proviso (a) to Sub-section (1) reads.--

Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session.

Proviso to Sub-section (2) 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.

A combined reading of these two provisos makes it clear that no direction or investigtion shall be made either by a police officer or by any other person where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Ses sion, but he shall call upon the complainant to produce all his witnesses and examine them on oath. The proviso to Sub-section (2) is introduced by the Parliament partly for the benefit of the accused to know the nature of the evidence which him prosecution proposed to rely upon against him, which in turn would enable him to prepare his defence after the copies of such statements are furnished to him Under Section 208 and partly to enable the court to control the proceedings in deciding whether or not there is sufficient ground for further proceedings.

9. Under the old Code, the procedure to be adopted in criminal proceedings instituted on police report was regulated by the comprehensive Section 207-A of Chapter XVIII whilst the other proceedings, viz,, the committal proceedings instituted otherwise than on a police report, were regulated by Sections 208 to 220 of Chapter XVIII.

10. In order to have a comparative study of the procedures laid down under the old and new Codes, with regard to the power of the Magistrate to discharge the accused in committal proceedings, I shall first examine the main differences between the procedures prescribed under Chapter XVIII of the old Code with regard to committal proceedings instituted on a police report and proceedings instituted otherwise (on private complaints etc). In a police case, the accused had to be furnished the copy of the police report, the statements of the prosecution witnesses as recorded by the police and above all, the documents on which the prosecution relied even at the commencement of the proceedings. In a complaint case, this was, of course not required. In a police case, the Magistrate was required 'to take the evidence of such persons, if any, as might be produced by the prosecution as witnesses to the actual commission of the offence alleged,' While he had a discretion to take the evidence of other prosecution witnesses if he considered it necessary in the interests of justice, he was not expected to take the evidence of any defence witness. In a complaint case, on the other hand, the Magistrate had to take 'all such evidence as might be produced in support of the prosecution or on behalf of the accused'. The Magistrate, in a police case, proceeded to frame the charge against the accused if, on the basis of the statements of witnesses recorded by the police Under Section 161(3) and then recorded by himself, he was of opinion that the accused should be committed for trial. But, in a complaint case, the Magistrate framed a charge when he was satisfied that there were sufficient grounds for committing the accused for trial. Thus, the difference in the wording suggests a higher standard for the prosecution evidence in a case instituted otherwise than on a police report and the difference was somewhat more noticeable in regard to the circumstances in which the Magistrate was expected to discharge the accused. In a police case, he might do so only if he was of the opinion that the evidence and documents 'placed before him' disclosed no ground for committing the accused person for trial. In other cases, he might do so if he found that there were no sufficient grounds for committing the accused person for trial The Law Commission, after carefully analysing the pros and cons of the abolition of the committal proceedings laid down under the old Code and taken into consideration the Criminal Justice Act of 1967, passed in England, whereby British Jurisprudence has introduced a new type of committal for trial without consideration of the evidence, and such Acts passed in various other countries, unanimously came to the conclusion that 'committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of trial before the Court of Session and ultimately decided to abolish such proceedings and accordingly recommended the omission of the whole of Chapter XVIII of the old Code.

11. As the entire Chapter XVIII of the old Code is now repealed by the new Code and the committal proceedings are totally abolished, we have to see whether by adhering to the words 'it appears to the magistrate' occurring in Section 209, the Magistrate could discharge the accused in cases where it does not appear to the Magistrate that the offence is triable exclusively by a Court of Session. Section 207 of the new Code lays down the dutyof the Magistrate, in committal cases instituted on police report, to furnish copies of police report and other documents to the accused free of cost, whereas Section 208 lays down the duly of the Magistrate to furnish copies of statements and documents to the accused free of cost in cases triable by the Court of Session instituted otherwise than on a police report. Under the latter section, one of such documents is the statement recorded Under Section 200 or Under Section 202, of all persons examined by the court. The furnishing of copies to the accused Under Section 208 comes into operation only when the Magistrate issues such process Under Section 204 of the new Code. In complaint cases, whether the case is a summons case or a warrant case or a case which is triable exclusively by the Court of Session, the Magistrate, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) Under Section 202 and he is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint after briefly recording his reasons therefor Under Section 203 of the Code, Therefore, the Magistrate, in cases triable exclusively by the Court of Session, if he has resorted to Section 202, shall call upon the complainant to produce all his witnesses and examine them on oath and assess the evidence to find out whether there is sufficient ground for proceeding, and if there is no sufficient ground for proceeding, he can dismiss the complaint without issuing process Under Section 204 of the New Code. The only thing is that the Magistrate has no jurisdiction to dismiss a complaint Under Section 203, without complying with the requirements of the law laid down in Section 200 or 202, In other words, he can apply Section 200 and straightway dismiss the complaint Under Section 203, or if he thinks fit to postpone the issue of process against the accused and to make an enquiry into the cases himself, he has to follow the procedure laid down Under Section 202 before he resorts to Section 203 or 204 of the Code. Thus, we see a safeguard to the accused in private complaint cases before the Magistrate decides to issue process to the accused, since he applies his judicial mind to the facts of the case to find out whether there is sufficient ground for proceeding or not. Of course, this guarantee or safeguard is lacking in cases instituted on police complaints.

12. The cognisance of the offence by a magistrate is Under Section 190(1) Crl. P. C. on a private complaint or a police charge-sheet or on any information received or upon his own knowledge. But, no court of Session shall take cognisance of any offence as a court oforiginal jurisdiction unless the case has been committed to it by a Magistrate. But, the court of Session could take cognizance without committal in such cases, an example being a complaint Under Section 500 I. P. C. In cases Under Section 199(2) Crl. P, C. instituted on a police report, the Magistrate could take cognisance of the offences disclosed in the charge-sheet, which may be either triable by him or exclusively triable by the Court of Session. In the formed case, he should follow the procedure contemplated for trial of summons cases or warrant cases, as the case may be, as per Sections 251 to 259 (Chapter XX-under the heading Trial of summons cases by Magistrates), or Sections 238 to 249 (Chapter XIX- under the heading 'Trial of warrant cases by Magistrates')- In the latter case (cases triable exclusively by the Court of Session), he should commit the case to the Court of Session Under Section 209, Crl. P. C. Section 227 of the new Code, corresponding to Section 251-A (2) of the old Code, and Section 228(1)(b) and (2) of the new Code, corresponding to Section 251-A(3) and (4) of the old Code, are analogous to Sub-sections (6) and (7) of Section 207-A of the old Code, which laid down the procedure to be adopted in commitment proceedings instituted on police report. Thus, the two sections, viz,, Sections 227 and 228 of the new Code, have brought about a change with regard to the forum of enquiry. The functions of the Magistrate under Sub-sections (6) and (7) of Section 207-A of the old Code are now to be performed by the Court of Session Under Section 227 (Power of discharge) and Section 228 (Framing of charges). By the change in the forum of enquiry, now the Court of Session has to do the preliminary scanning Under Sections 227 and 228, which was hitherto being done by all the Magistrates, so, it is clear that as the power of discharge is taken away in committal proceedings from the Magistrates, he has no other option except to commit the accused to take his trial before the Court of Session, if it appears to the said Magistrate that the offence is exclusively triable by the Court of Session.

13. In cases instituted on private complaints Under Section 200 Crl. P. C., the Magistrate should examine the complainant and the witnesses present on oath and if he is satisfied on their examination that there is sufficient ground for proceeding, he should straightway issue process to the accused Under Section 204 Crl. P, C. and proceed with the case. But, if he is not so satisfied at that stage, he can resort to Section 202, postponing the issue of process to the accused. After the inquiry Under Section 202, as I have already mentioned above, the Magistrate shall dismiss the complaint Under Section 203 if there is no sufficient ground for proceeding. But, if he finds sufficient ground for proceeding, he should issue process to the accused Under Section 204, Cr. P. C. In the light of the above discussion, it is clear that the power of discharge is taken away from the committing Magistrates in cases exclusively triable by the court of session. In a case instituted on a police report, there is no question of examination of any witness on oath by the committing Magistrate except in cases where the person accepting the tender of pardon made under Sub-section (1) of Section 306 is examined as a witness in the court of the Magistrate taking cognisance of the offence. In other words, the preliminary enquiries by the Magistrates in cases triable exclusively by the Court of Session, are dispensed with. But as regards the cases on private complaints triable exclusively by the Court of Session, the inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of a preliminary scrutiny. Before the application of Section 209 in a private complaint case, the Magistrate has got ample power to take evidence by resorting to Section 202 by examining the complainant and all his witnesses, and if upon satisfying himself that there is sufficient ground for further proceeding, he issues process to the accused Under Section 204, But, in cases instituted on a police report, the Magistrate has no power to scan or scrutinise the evidence, but has to perform certain preliminary functions such as supplying the records Under Section 207, issue of process etc. and then straightway apply Section 209.

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall--

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

The head-note clearly indicates that commitment takes place only when the offence is triable exclusively by the Court of Session. The committing magistrate has to examine the records submitted Under Section 173 to know whether an offence is triable exclusively by the court of Session, or not, Without such examination or scrutiny of records, it is impossible for him to come to any such conclusion. The mere fact that the Court of Session is given power to consider the document Under Sections 227 and 228 cannot go to show that the Parliament has intended to abrogate the limited power of the Magistrate in applying his mind to the facts of the case in committal proceedings. According to N. T. Vanamamalai, the intendment of Section 209 is not to make a committing Magistrate a transmitting agent as it is clear fromthe words 'when the accused appeals or is brought before the Magistrate and it appears to the Magistrate'. Further, he urged that it is a fundamental principle of natural justice that no person shall be condemned in his absence and only in recognition of that basic principle, the section is worded in Such manner and therefore an opportunity should be given to the accused to make a representation about the facts as found in the records submitted Under Section 173 and furnished Under Section 207 or Under Section 208, as the case may be, so that it may facilitate the Magistrate to take action under proper section or sections as disclosed by the records. Of course, it is evident from Section 209 that no committal can take place without the presence of the accused. The section does not explicitly provide for an opportunity being given to the accused to make any representation. The true import and intendment of the insistence on the presence of the accused is for the purpose of committing the accused to the Court of Session. It may be noted that the Legislature has purposely omitted in Sub-section (6) of Section 207-A of the old Code, which provides for the examination of the accused tor the purpose of enabling him to explain the circumstances appearing against him and the opportunity of being heard before the committal in cases instituted on police report. The object of this omission is, in my view, to emphasise the fact that the Magistrate need not hear the accused at all at that stage since he is not holding any inquiry and secondly that the preliminary inquiry, which involved a great deal of infructuous work causing delay in the trial of sessions cases, is totally abolished. Thus, once the Magistrate reaches the conclusion that the facts alleged in the police report or the private complaint make out an offence triable exclusively by the Nadat Court of Session, he is to do no more but to commit the accused. In other words, Section 209 does not contemplate any judicial inquiry with the accused present. Therefore, I am unable to agree with Mr. N. T. Vanamamalai that the insistence of the presence of the accused Under Section 209 is for the purpose of giving an opportunity to the accused of being heard. The words 'it appears to the magistrate also include cases in which it does not so appear to the Magistrate. Whether it appears or does not appear to the Magistrate, has to be decided only at the time when the Magistrate applies his mind to the facts of the case. Then arises the question: Where it does not appear to the Magistrate that the offence is triable exclusively by the Court of Session, can the Magistrate discharge the accused? Section 209 does not say expressly what should be done by the Magistrate when it does not appear that the offence is triable exclusively by the Court of Session. A Magistrate is not empowered to frame a charge Under Section 209 before the commitment. All that is required of a Magistrate under this section is that when it appears to him that the offence is exclusively triable by the Court of Session, he should commit the case. Hence, when the Magistrate is not clothed with the power of framing a charge when committing, logically it follows that there is no power for him to discharge the accused when in cases where after the perusal of the documents, it does not appear to him that it is an offence triable exclusively by the Court of Session, because discharge is an antithesis of charge. It is only when there is a provision tor framing a charge, the power of discharge is given: Vide Sections 227, 228, 239, 240, 245 and 246 of the new Code and Section 207, Sub-sections (6) and (7) and Sub-sections (2) and (3) of Section 251-A, Sections 253 and 254 of the old Code. Thus, it is seed from the above sections that whenever a power to frame a charge is given in the Act, the power of discharge is evident. Then, there may be a question whether the Magistrate, after having ordered issuance of process Under Section 204, can go back and say that it does not appear to him that it is an offence triable exclusively by the Court of Session. It is only when it appears to the Magistrate that the offence is one triable exclusively by the Court of Session, it could be said that the Magistrate has taken cognisance of an offence triable exclusively by the court of Session. When it does not appear so, the question of taking cognisance of the offence as one triable exclusively by the Court of Session does not arise. The answer to the above question would depend upon the tactor when a court is said to have taken cognisance of an offence.

15. The expression 'taking cognisance' has not been defined in the Code and it is difficult to ascertain at what precise stage of a case cognisance is said to be taken. In its broad and literal sense, it means 'taking notice of an offence' and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. Thus, when once the couit takes cognisance, it gets jurisdiction. Taking cognisance does not involve any tormal action, or indeed action of any kind, but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. The word 'cognisance' is defined in Wharton's Law Lexicon, 14th Edn, as 'the hearing of a thing judicially'. Therefore, the term 'taking cognisance' is a judicial action permitted by the court, taken with a view eventually to prosecution and preliminary to the commencement of the inquiry or trial. As observed by the Supreme Court in .Narayandas v. State of West Bengal : 1959CriLJ1368 :

as to when cognisance of an offence is taken will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognisance.... Obviously, it is only when the Magistrate applies his mind tor the purpose of proceeding Under Section 200 and subsequent sections of Chapter 16 of the Criminal Procedure Code (old Code) or Under Section 204 of Ch. 17 of the Code (old Code), thai it can be positively stated that he had applied his mind and therefore had taken cognizance.

The Supreme Court, in Darshan Singh v. State of Maharashtra : 1971CriLJ1697 , has observed as follows--

As has been held, taking cognisance does not involve any formal action or indeed action of any kind, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognisance, therefore, takes place when the Magistrate takes judicial notice of the offence. But, this is the position, whether the Magistrate takes cognisance of an offence on a complaint or on police report or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognisance of an offence upon a police report, prima facie he does so of the offence or offences disclosed in such report.

The Supreme Court in this case has quoted with approval the following observations in Pramathanath v. Saroji Ramjan : AIR1962SC876 --

It would not be proper to deride the question of sanction merely by taking into consideration the offences mentioned in the heading or the use of the expression criminal conspiracy'. The proper test should be whether the allegations made in the petition of complaint disclosed primarily and essentially an offence or offences for which a consent in writing would be necessary to the initiation of proceedings within the meaning of Section 196-A(2) of the Criminal Procedure Code; it is from that point of view that the petition of complaint must be examined.

Then, the Supreme Court, in the same decision, also quoted Biroo Sardar v. Y. C. Ariff : AIR1925Cal579 , with approval, for the view that it is not the section or sections referred which matter, but the offence prima facie disclosed. Therefore, though the police report or the complaint gives certain section or sections of law which are triable exclusively by the court of Session, the Magistrate takes cognisance only of the offences on the facts disclosed in the police report or the complainant, but not of the offences pertaining to the penal provisions mentioned in the police report or the complaint. If the Magistrate applies his mind to the facts of the case and takes judicial notice of the offence at any stage, then the words 'it appears to the Magistrate' occurring in Section 209 can have no meaning at all.

16. In eases instituted on private complaints as the one on Viand, the Magistrate taking cognisance of an offence examines the complainant and the witnesses present on oath and takes the case on his file, or the Magistrate, on receipt of a complaint for an offence which he is authorised to take cognisance, may, if he thinks fit, postpone the issue of process against the accused and then follow the procedure laid down Under Section 202, In other words, the Magistrate can take cognisance of an offence Under Section 190(1) Cri. P. C., on receipt of a complaint Under Section 200 Cri. P. C., and straightway issue process Under Section 204 or he, on receipt of the complaint, can postpone the issue of process, apply Section 202 and then issue the process Under Section 204. The Magistrate, acting either Under Section 200 or Under Section 202, if he is of opinion that there is no sufficient ground for proceeding, shall dismiss the complaint Under Section 203. Only if there is sufficient ground for proceeding, he resorts to Section 204 and issues process. If it appears to the Magistrate issuing process Under Section 204, that the offence is triable exclusively by the court of Session, he shall Without delay furnish to the accused free of cost a copy of each of the documents as enumerated Under Section 208. Thus, a comprehensive reading of Sections 200, 202, 204 and 208 makes it clear that in a case instituted otherwise than on a police report, the Magistrate, even at the time of issuing the process, must be satisfied whether the offence is triable by the court of Session or not, and copies of the statements and documents have to be furnished to the accused only on his being satisfied that the offence is triable exclusively by the court of Session, Otherwise, it logically follows that he need not furnish copies of the documents.

17. The proviso to Sub-section (2) of Section 202 emphasises that it must appear to the Magistrate that the nature of the offence is such that it is triable exclusively by the court of Session. Section 204 says that if the Magistrate taking cognisance of an offence, upon consideration of the materials before him, thinks that there is a prima facie case for proceeding in respect of an offence for which he has taken cognisance, he shall issue process against the accused. Section 208 also reiterates the condition precedent for furnishing copies of documents, viz., that it must appear to the Magistrate that the offence is triable exclusively by the court of Session, Therefore in my view, so far as the cases triable exclusively by the court of Session instituted on complaint are concerned, even before the issue of process Under Section 204 the Magistrate should come to an opinion as to whether the offence complained of is one exclusively triable by the. court of Session or not. Section 209 Crl. P. C., is a comprehensive section applicable both to cases instituted on police report as well as on cases instituted otherwise. A plain reading of Section 209 indicates that in both the cases aforementioned, after the appearance of the accused before the Magistrate, the Magistrate has to apply his mind and see whether it appears to him that the offence is triable exclusively by the court of session. Thus, in a case instituted on a complaint, a reading of these sections discloses that the Magistrate has to apply his mind at three stages, viz, Under Section 202(2), Under Section 208 and Under Section 209, because in all these sections the words 'it appears to the Magistrate that the offence is triable exclusively by the court of Session' are explicitly mentioned. Besides, at the stage of issuing process Under Section 204, the Magistrate is mainly concerned with the allegations made in the complaint or in the evidence adduced in support of the same and he has only to be prima facie satisfied whether there are sufficient grounds for proceeding further. Therefore, at this stage, the Magistrate, in order to form an opinion, has to apply his mind to the facts of the case. Thus, in cases instituted otherwise than on a police report, there are sufficient safeguards and the Magistrate is expected to apply his mind to the facts of the case at every stage and see whether the offence is one triable exclusively by the court of Session.

18. A plain reading of the Section 290 indicates that in all cases, whether instituted on a police report or otherwise, after the appearance of the accused, the Magistrate has to apply his mind and see whether it appears to him that the offence is triable exclusively by the court of Session. The word 'appears' is defined in the Shorter Oxford Dictionary, as follows--

To be plain; manifest; to be in one's opinion; to seem; as distinguished from 'to be'; to be to the superficial observer.' In Corpus Juris Secundum, by William Mack and Donald J. Kisser, Volume VI, also, the word is defined as follows:Appear, In its primary sense, the word refers to that which is seen by the eye. As a verb, to appear in person, or to exhibit one self so as to be visible; to come or be in sight, to be in view: to become visible. In derived sense, to become visible or clear to the apprehension of the mind; to be known as a subject of observation or comprehension or as a thing proved; to be obvious or manifest; signifying that which is obvious, or known, or clear, or made clear by evidence or reasoning; that which is proved or shown. The word has also been defined as meaning to have a certain semblance, to look, to seem.

It is to be noted that the word 'appear' is frequently used in judicial proceedings as meaning 'clear to the comprehension' where applied to matters of opinion or reasoning, and 'satisfactorily or legally known or made known' when used in reference to facts in evidence. When a statute requires that a certain conclusion be made to 'appear as a ground for proceeding by any tribunal, facts from which that conclusion follows must be proved, The word 'appears' is commonly used in two senses: in one sense, it means 'manifest, obvious or proved' and in the other it means 'seems'. In view of the meaning of the word 'appears' given above, it we read Setions 202, 208 and 209, where the word 'appears' occurs, it would mean that the Magistrate has to apply his mind and satisfy himself subjectively. As these words 'it appears to the Magistrate' appear at three stages as mentioned supra, in proceedings instituted otherwise than on a police report, in my view, the same words appearing in Section 209 are redundant so far as proceedings on private complaints are concerned, However, I am of the view that if is always desirable in cases instituted on complaints that while the Magistrate takes cognisance of offences triable exclusively by the court of Session, he should follow the procedure laid down Under Section 202 of the Code, which serves the purpose of a preliminary enquiry, as that alone would be a sufficient safeguard to the accused before the court resorts to Section 204, and as the court, being the legal custodian and guardian of the rights of the citizens, has a primary obligation to protect them from vindictive and vexatious prosecutions.

19. For the above discussions, I hold that the Magistrate cannot discharge the accused if it does not appear to him that the offence is one triable exclusively by the Court of Session, but he shall then proceed under Chapter XIX or Chapter XX as he is deemed to I have taken cognisance of offences tailing only under any one of those chapters. I am unable to agree with the contention of the learned Counsel that the order of the learned Magistrate discharging the accused is justified.

20. In the result, the order of the learned Magistrate discharging the respondents is set aside and I restore the case to the file of the Judicial II Class Magistrate of Thiruthuraipoondi, and direct the Magistrate to commit the case to the Court of Session The revision petition is accordingly allowed.

21. The learned Sessions Judge, on whose file Sessions Case No. 29 of 1974 is said to be pending, is directed to take the present ease on committal to him and try the said Sessions case No. 29 of 1974 together with this case and dispose of them expeditiously.


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