Sankar Prasad Mitra, C.J.
1. This Special Bench of three Judges has been constituted under extraordinary circumstances arising out of the present Criminal Revision Case No. 676 of 1973 as well as Criminal Revision Case No. 854 of 1973 (Bimal Chandra Samaddar v. Ranjit Samaddar). Both the Revision Cases have been heard by this Bench. In the instant case on the 16th July, 1973 a petition of complaint was filed on behalf of Shyam Sundar Singhania in the Court of the Police Magistrate at Alipore. On the same day the complainant was examined and summons was issued under Section 406 of the Code of Criminal Procedure for alleged criminal breach of trust. On 27th August. 1973, the accused petitioner Tara Dutta made an application to this Court under Section 439 read with Section 561-A of the Code for quashing the proceeding. On August 27, 1973, Talukdar. J. issued a rule calling upon the District Magistrate, 24-Parganas as also Shyam Sundar Singhania to show cause as to why the proceedings complained of in the petition should not be quashed or such other or further order or orders be made as to this Court may seem fit and proper. The learned Judge also granted an ad interim stay. The matter ultimately came up for hearing before R. Bhattacharya, J. on 10th September. 1974. Bhattacharya, J. obviously had his doubts about the view expressed by Talukdar, J. in MacCulloch v. State, reported in (1974) 78 Cal WN 307 = (1974 Cri LJ 182). The view of Talukdar, J. inter alia, was that a Magistrate after a complainant is examined under Section 200 of the Code should enquire of the complainant whether any of his witnesses was present in court and if no witnesses were present, the Magistrate should mention that fact in the order sheet. His Lordship further held that an order under Section 200 which is issued without complying with the above procedure must be set aside and the defect could not be cured under Section 537 of the Code. His Lordship sitting with A. N. Banerjee, J has adhered to the same view in a judgment delivered on February 20 1974 in Brahmananda Goyal v. N. C. Chakra-barti (1975) 79 Cal WN 60 = (1974 Cri LJ 1079) R. Bhattacharya, J. directed on the 10th September, 1974 that the matter be placed before the Chief Justice under the second proviso to Sub-rule (2) to Rule 9 of Part I of Chapter II of the Appellate Side Rules, for appropriate and necessary orders for referring it to a Division Bench taking criminal cases for decision. The said proviso is as follows:--
'Provided further that such Judge (i. e. a Single Judge) may send back any particular case he thinks fit to the Bench taking criminal cases to be disposed of by two Judges.'
2. R. Bhattacharya, J.'s order of September 10. 1974 was placed before the Acting Chief Justice Mr C. N Laik on the 17th September. 1974. The Acting Chief Justice directed that the matter be heard by a Division Bench presided over by him.
3. On 3rd October, 1974, the Acting Chief Justice sitting with our learned Brother N. C. Mukherji, J. heard the matter. The reference was held to be incompetent on the ground that the entire case had not been sent up.
4. On the 18th February, 1975. R. Bhattacharya. J. again referred the matter to the Chief Justice for constitution of a larger Bench to deal with the entire case according to the law laid down by the Supreme Court in Bhagwan v. Ram-chand, : 3SCR218 and also under the said proviso to the said Rule.
5. It would be necessary at this stage to set out the relevant facts of Criminal Revision Case No. 854 of 1973 (Cal) (Bimal Chandra Samaddar v. Raniit Samaddar) which, has been heard along with this case. In the latter case a petition of complaint was filed on 17th August, 1973. On that day the complainant was examined under Section 200, Cr. P. C. and summons was issued. On 24th September, 1973, the accused Bimal Chandra Samaddar made an application to this Court under Section 561-A read with Section 439. Cr P. C. for quashing the proceedings on the ground, inter alia of violation of Section 200 of the Cr. P. C. due to the failure of the Magistrate to record in his order-sheet of the 17th August, 1973, that no witness of the complainant was present in Court.
6. On September 24, 1973, Talukdar. J. issued a Rule on the above application and granted an ad interim stay.
7. On 20th March, 1974, the Rule granted by Talukdar, J. came up for hearing before A. K. De, J. His Lordship directed that the records be laid before the Chief Justice to enable him to constitute a larger Bench as his Lordship was finding it difficult to agree with the views expressed by Talukdar, J. in MacCul-looh's case, (1974 Cri LJ 182} (Cal) and by the Division Bench in Brahmananda's case (1974 Cri LJ 1079) (Cal). A. K. De, J. observed that the question arising for decision was, whether an order of a Magistrate, issuing process against an accused under Section 204 of the Cr. P. C. without examining the complainant's witness, though not present on the date of his initial examination under Section 200 was bad in law and liable to be set aside. The learned Judge observed further that the question was frequently coming up before the Court. And it was felt that the matter should be reconsidered by a larger Bench as indicated by the Supreme Court in Bhagwan v Ram Chand, : 3SCR218 .
8. On 23rd May. 1974, the order of A. K. De, J. was placed before me. I referred the matter to a Bench consisting of the Chief Justice, Mr. Justice M. N. Dutt and Mr. Justice A. K, De.
9. On May 29, 1974 the larger Bench so constituted held that the reference did not lie and the matter was directed to go back to the referring Bench for disposal.
10. On May 31, 1974. A. K. De, J. being the referring Judge heard the matter again and sent the case to a Bench taking criminal cases to be disposed of by two Judges in terms of the Second Proviso to Sub-rule (2) of Rule 9 of Part I, Chapter II of the Appellate Side Rules. A. K. De. J. directed that the records be laid before the Chief Justice for appropriate orders.
11. The matter was again placed before me on the 10th June, 1974. I directed that the matter be heard by a Division Bench presided by Borooah, J.
12. A Division Bench composed of Borooah and H. N. Sen, JJ heard the reference on July 11, 1974. It was held that the order dated the 31st May, 1974, of A. K. De. J. sending back the case to a Division Bench for disposal was not in accordance with the provisions of the Appellate Side Rules. Accordingly the matter was sent back to the referring Bench for being dealt with in accordance with law. The Division Bench has observed that it does not appear that the referring Judge did not agree with the proposition of law laid down in MacCulloch's case (1974 Cri LJ 182) (Cal) and in Brahmananda's case. The Division Bench has observed further that there is no duty cast upon the Magistrate to take any steps for the examination of the complainant's witnesses who are not present.
13. On 21st August, 1974 the matter came back to A. K. De, J. His Lordship was of the view that the case could no longer be taken up by a Single Judge who had lost his jurisdiction by reason of the order which he made on the 31st May, 1974, He directed that the matter be again laid before the Chief Justice,
14. On 30th August. 1974, when the file was placed 'before me I sent it to a Division Bench, presided over by S. K. Bhattachayya, J.
15. The case was heard by S.K. Bihattacharyya and A. P. Bihattacharyya, JJ. on 24th December, 1974. The Reference was held to be incompetent and the case was sent back to the referring Judge for being dealt with in accordance with law. It was observed that the referring Judge did not express his disagreement but merely stated that the matter needed to be reconsidered. The Reference, therefore, was not in accordance with the second proviso to Rule 9 (2) of Chapter II of Part I of the Appellate Side Rules. The referring Judge according to this Bench, could send back a particular case to be disposed of by the Bench taking Criminal cases to be disposed of by two Judges and it was not open to him to refer it to a Bench taking Criminal cases to be disclosed of by two Judges.
16. When the matter again came back to A. K. De, J., his Lordship said that when this case was 'sent back' it should go before a Division Bench and not to a Single Judge, A. K. De. J. has observed further that as the Chief Justice determines or constitutes Division Benches the case may be Laid before him.
17. On the 26th February, 1975, upon considering the previous history of this case I assigned the matter to R. Bhattacharya, J.
18. On 5th May. 1975, R. Bhattacharya, J has delivered his judgment. His Lordship has directed that the matter be placed before the Chief Justice for constitution of a suitable larger Bench to examine the questions of law involved and to dispose of the same. The entire case was sent to be dealt with according to the principles laid down by the Supreme Court in the case of Bhagwan v. Ram Chand, : 3SCR218 or under the second proviso to Sub-rule (2) of Rule 9 of Part I, Chapter II of the Appellate Side Rules. R. Bhattacharya, J. has expressed the view that a Magistrate has judicial discretion to issue summons by examining the complainant without examining other witnesses if he is satisfied prime facie that a case has been made out for issuing process. Even if no witness is examined at that stage before issuing summons, such non-examination cannot be held to be fatal though such examination of witnesses is mandatory and it may be regarded as a curable irregularity as it does not cause prejudice either to the complainant or to the accused.
19. The opinion of R. Bhattacharya. J. was placed before me on the 29th May, 1975. After careful consideration of all that has happened in the two Criminal Revision Cases Nos. 676 of 1973 and 854 of 1973 I constituted this larger Bench or Special Division Bench of three Judges for deciding the matters in dispute.
20. On behalf of the accused in both the cases it has been urged before us that the Reference to this larger Bench as well does not lie. Bhattacharya, J has referred the matter either according to the principles of law laid down by the Supreme Court in Bhagwan v. Ram Chand, : 3SCR218 , or under the second proviso to Sub-rule (2) of Rule 9 of Part I. Chapter II of the Appellate Side Rules. According to Mr. D. C. Roy, counsel for the accused Tara Datta and Mr. Banerjee. counsel for the accused Bimal Chandra Samaddar, the Reference could not be made under any of the provisions referred to by the learned Judge. In Bhagwan v. Ram Chand, : 3SCR218 Gajendragadkar, C. J. speaking for the Supreme Court observed:
'It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety,
21. Mr. D. C. Roy, counsel for the petitioner Tara Dutta has submitted that the principles which Gajendrasadkar, C. J. had enunciated, have no application to Calcutta High Court which has its own specific rules for dealing with the situation that has arisen. In any event, in the latest judgment of the Supreme Court reported in : 2SCR774 (B. Banerjee v. Anita Pan) at page 1148 in paragraph 2 the principle that a Single Judge is bound by a Division Bench ruling has been reiterated. And the latest judgment of the Supreme Court should prevail over all other previous judgments.
22. The next contention is that R. Bhattacharya, J. under the second proviso to Rule 9 (2) of Part I of Chapter II of the Appellate Side Rules, could have referred the matter 'to the Bench taking Criminal Cases to be disposed of by two Judges' that is, the regular Criminal Division Bench. His Lordship should not have referred the matter to the Chief Justice for constitution of a larger Bench. If the regular Division Bench were not inclined to take up these matters they would have placed the cases before the Chief Justice who could constitute another Division Bench. And if the second Division Bench disagreed with the judgment of Talukdar and A. N. Banerjee, JJ. the matter might have been referred to a Full Bench. It was urged further that A, K. De, J. should also have followed the same procedure, instead of sending the matter to the Chief justice more than once.
23. It seems to us that in these cases it is unnecessary to enter into these controversies. The complications which have arisen have been fully set out in this judgment. Time and again these matters were referred to two learned Single Judges of this Court who were sending the matters back to the Chief Justice. A Special Bench and two Division Benches have taken the view that the References to them were incompetent. Paced with these extraordinary and perhaps unprecedented circumstances I have constituted this larger Bench or a Special Division Bench. As to the power of the Chief Justice to constitute this Bench we intend first to refer to the second proviso to Rule 1 of Chapter II of the Appellate Side Rules read with Rule 9 of Part II of Chapter VII, The relevant provisions are as follows:
Part I, Chapter II.
'1. A Division Bench for the hearing of appeals from decrees or orders of the Subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit.
(ii) Provided also that, on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for the hearing of any particular appeal, or any particular question of law arising in an appeal, or of any other matter.'
Part II. Chapter VII. '9. For the purpose of the above Rules, a Bench of three or more Judges hereafter constituted by the Chief Justice under Rule 1 (ii) of Chapter II of these Rules shall be deemed to be a Full Bench.'
24. It is clear that in civil matters the Chief Justice whenever he thinks fit can constitute a Special Division Bench consisting of three or more Judges for the hearing of any matter. And a Special Division Bench so constituted shall be deemed to be a Full Bench. The question is whether the Chief Justice has the same or similar powers with respect to criminal matters. This question has been consider-ed by a Full Bench of this Court as well as by the Supreme Court to which we shall presently advert.
25. In Saurendra Mohan v. Saroj Ranjan. : AIR1961Cal461 , a Bench consisting of two Judges drew the attention of the Chief Justice to the fact that the cases involved matters of importance including the question whether certain Division Bench decisions were good law. The Chief Justice thereupon constituted a larger Bench of three Judges. In paragraphs 6 and 7 of the judgment this larger Bench (described as Full Bench) observes as follows:--
'(6) The first point urged before us relates to the competence of this Bench to decide the matter. It has been urged before us that under the Rules of the High Court. Appellate Side, it was not competent on the part of a Division Bench consisting of two Judges dealing with Criminal Matters to refer any matter to a larger Bench for decision. In this connection our attention has been drawn to Rules 1 and 9 of Chaper II of the Appellate Side Rules. Rule 1 deals with Civil Matters, Proviso (ii) to Rule 1 is as follows;--
'Provided also that on the requisition of any Division Bench, or whenever the thinks fit, the Chief Justice may appoint a Special Division Bench, to consist of three or more Judges, for the hearing of any particular appeal, or any particular question of Law arising in an appeal, or of any other matter.' 'Rule 9 which deals with Criminal matters, does not contain a corresponding provision, Sub-rule (1) of Rule 9 is as follows: --
'A Division Bench for the hearing of cases on appeal, reference or revision in respect of any sentence or order of any Criminal Court shall consist of two or more Judges.'
'It has, therefore, been argued before us that when the Chief Justice allotted these Revision Cases to a Bench consisting of two Judges they were in seisin of the case, and it was their duty to dispose of the matter finally, and if they differed they should have stated the point on which they differed and then the matter would be referred to a third Judge under the provisions of Section 429 of the Code of Criminal Procedure; but the Bench had no power, whether or not formally differing from one another, to recommend that the matter should be referred to a larger Bench. '
'7. Now, it is true, in Rule 9 of the Appellate Side Rules, Chapter II, there is no express provision corresponding 'to the proviso (ii) to Rule 1 which relates to Civil matters. But this does not, in our opinion, take away the inherent power of the learned Chief Justice to refer any matter to a Bench of three Judges when the matter is of some importance. As already pointed out. Sub-rule (1) of Rule 9 provides that a Criminal Bench may consist of two or more Judges. Ordinarily, a Bench consists of two Judges excepting in matters which can be disposed of by a Single Judge. A criminal matter would be referred to a larger Bench consisting of three or more Judges only when the matter is of considerable importance. The Chief Justice may on his own initiative, allot such an important matter to a Bench of three Judges, or his attention may be drawn to the fact that the matter is of some importance and then he may exercise his discretion to refer the matter to a larger Bench. In the present case, the attention of the learned Chief Justice was drawn to the fact that the matter was of some importance by the Bench of two Judges to which the cases had been referred in the first instance. There was nothing illegal in drawing the attention of the learned Chief Justice to the fact that the cases involved matters of importance and recommending that the cases should be referred to a larger Bench. Thereafter, the learned Chief Justice acted in the exercise of his inherent jurisdiction and referred the cases to a Larger Bench, namely this Bench, and we do not think there was any illegality in such reference and, therefore, there can be no question as to our competence to deal with the matters.'
26. This Full Bench judgment recognises the inherent power of the Chief Justice to constitute in a criminal matter a larger Bench either on his own initiative or on his attention being drawn to the fact that the matter was of importance. The Full Bench on one of the points raised, did not accept the views expressed in several Division Bench judgments of this Court and held that they must be deemed to have been overruled by subsequent Full Bench judgments. In the instant case 'both A. K. De and R. Bhattacharya, JJ. had been drawing my attention to the importance of the points of law involved in these cases. I have also fully set out the previous histories of these matters in this court when they were being placed before one Bench after another. In these exceptional circumstances there was no other alternative left to me than to constitute in the exercise of my inherent power this larger Bench whose opinion would prevail over opinions expressed previously either by a Single Judge or by a Division Bench.
27. The Full Bench case, we have referred to, went up on appeal to the Supreme Court The Supreme Court judgment is reported in : AIR1962SC876 (Pramathanath v. Saroj Ranjan). There was a difference of opinion between S. K. Das, J. on the one hand and Kapur and Hidayatullah. JJ. on the other on the merits of the case; but on the competence of the larger Bench all the three learned Judges of the Supreme Court were unanimous. In paragraph 12 of the judgment at pages 882 to 883 S. K. Das, J. has observed :
'Now, as to the first question (that is whether the Special Bench was lawfully in seisin of the case and was competent to deal with the applications in Revision: vide paragraph 11) Chapter II of the Rules of the High Court at Calcutta (Appellate Side) deals with the Constitution and powers of the Benches of the Court. Rule 1 of the said Chapter says in effect that a Division Bench for the hearing of appeals from decrees or orders of the Subordinate Civil Courts shall consist of two or more Judges as the Chief Justice may think fit; there is a proviso (proviso (ii) to the Rule) which says that on the requisition of any Division Bench, or whenever he thinks fit, the Chief Justice may appoint a Special Division Bench to consist of three or more Judges for the hearing of any (particular appeal, or any .particular question of law arising in an appeal, or of any other matter. It is clear that the Rule and the proviso deal with the hearing of appeals from decrees or orders of the Subordinate Civil Courts; in other words, they deal with civil matters. Rule 9 of the same Chapter deals with criminal matters and Sub-rule (i) of the said Rule says that a Division Bench for the hearing of cases on appeal, reference or revision in respect of the sentence or order of any Criminal Court shall consist of two or more Judges. There is no proviso to this Rule similar to the proviso to Rule 1 referred to earlier. And the argument is that in the absence of such a proviso it was not open to the Division Bench......... to refer the case back to the Chief Justice for the constitution of a larger Bench (though it was open to the Chief Justice to constitute originally a Division Bench of three Judges to hear the case), and if the Judges were equally divided in opinion. Section 429 of the Code of Criminal Procedure would apply and the case had to be laid before another Judge and judgment given according to the opinion of this third Judge. I am unable to accept this argument as correct. It is clear from the Rules, in Chapter II that the constitution of Benches is a matter for the Chief Justice and Rule 13 of Chapter II says that a Full Bench appointed for any of the purposes mentioned in Chapter VII, Rules 1 to 5. shall consist of five Judges or three Judges as the Chief Justice may appoint Now, Rule 1 of Chapter VII says, inter alia, that whenever one Division Bench shall differ from any Division Bench upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench and Rule 5 says that if any such question arises in any case coming before a Division Bench as a Court of Criminal Appeal, Reference or Revision the Court referring the same shall state the point or points on which they differ from the decision of a former Division Bench, and shall refer the case to a Full Bench for such orders as to such Bench seem fit...... Even if Rules 1 and 5 in Chapter VII may not strictly speaking, apply to the present case because the Division Bench did not formulate the point or points on which they differed from the earlier Bench decisions......... I think the principles of those Rules would apply and it was open to the Chief Justice on a Reference by a Division Bench, to constitute a larger Bench to consider the same, I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to Rule 9 in Chapter 11 correspondjpg to the proviso to Rule 1_ did__not_take_away the inherent power of the Chief Justice to refer any matter to a Bonch ot three Judges. Sub-rule (1) of Rule 9 itself (provided that a Division Bench for the hearing of cases on Appeal. Reference or Revision in respect of the sentence or order of any Criminal 'Court shall consist of two or more Judges. Therefore, it was open to the Chief Justice to constitute a Bench of three Judges for the hearing of the case and in my view it made no difference whether he constituted such a Bench originally or on a Reference back by the Division Bench. I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of the Division Bench feels, for a sufficient and good reason, that he should not hear this case. It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice. I think, must possess such inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of correctness or otherwise of earlier Division Bench decisions of the same Court will fall for consideration in the case. Section 429 of the Code of Criminal Procedure does not apply to such a case because it is not a case where the Judges composing the Court are equally divided in opinion. Rather it is a case where the Judges composing the Division Bench consider that the case is of such importance that it should be heard by a larger Bench.'
28. As we have said on the point of the Chief Justice's power to constitute a larger Bench there was no difference of opinion between S. K. Das. J. and Kapur and Hidayatullah, JJ. Kapur. J. for self and Hidayatullah, J. in paragraph 62 at page 903 observes as follows:--
'In regard to the power of reference to a larger Bench, we are in agreement with S. K Das. J., and in the circumstance it is unnecessary to express an opinion as to the applicability of Section 196-A, Criminal Procedure Code to the facts of this case.'
29. The Full Bench and the Supreme Court decisions referred to above leave us in no doubt that this larger Bench constituted in the exercise of the Chief Justice's inherent power can finally set at rest the controvercies which have arisen in the matter so far as this Court is concerned. The Full Bench this expressly stated that even in the absence in Rule 9 of Chapter II, Appellate Side Rules of a provision corresponding to proviso (ii) to Rule 1 which relates to civil matters, the Chief Justice has inherent power to refer any matter to a Bench of three Judges when the matter is of some importance. The Supreme Court has expressly agreed with this view. Both the Full Bench and the Supreme Court have made it clear in our opinion, that the Chief Justice can exercise his inherent power to constitute larger Benches in criminal matters in situations or circumstances envisaged in civil matters by proviso (ii) to Rule 1, Chapter II of the Appellate Side Rules. We, therefore, overrule the contentions raised on behalf of the accused as to the competence of this Bench. We reiterate that 'being a larger Bench, its decision in view of the principles aforesaid laid down by the Full Bench and the Supreme Court will prevail over all previous decisions of this Court whether by a Single Judge or by a Division Bench. We now proceed to deal with the merits.
30. Let us first examine the provisions of Section 200 of the Code of Criminal Procedure, 1898. This section is in Chapter XVI of the Code. The heading of this Chapter is 'of complaints to Magistrates'. Section 200 runs thus:
'A Magistrate taking cognizance of an offence on complaint shall at once (examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses) and also by the Magistrate.
Provided as follows:--
(a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192;
(aa) When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
(b) Where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing; but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him reauire it to be reduced to writing;
(c) When the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.'
31. The words put within brackets in the main provision were substituted by Section 26 of Act 26 of 1955 for the words 'examine the complainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant.' Before the amendment therefore, there was no provision for examination of the complainant's witnesses present, if any, or of reducing to writing the substance of their examination.
32. Before us the argument on behalf of the accused is that the section requires that not only the complainant but his witnesses present shall also be examined. Since the Magistrate's imperative duty is to examine the witnesses present, if any the Magistrate must enquire whether any witnesses are present and if none is present he should record that fact in his order-sheet. It is urged that this procedure has many advantages. It would avoid future complications. For instance, the complainant cannot say to a Revisional Court that there were other witnesses present in support of his complaint but the Magistrate did not examine them. The accused also cannot take the point that the complainant had produced only his 'pocket' witnesses; he had other witnesses present; and if they had been examined the case of the complainant would have been demolished. If such points be taken before a Revisional Court, the absence of the Magistrate's note that no other witness was present may cause embarrassment to the Magistrate concerned as well as to the Revisional Court. The Revisional Court may have to ascertain the correct position from the Magistrate concerned and it may not be possible for the Magistrate to remember in the absence of record whether there were other witnesses present in a particular case. Secondly, when the enquiry is made 'by the Revisional Court, the same Magistrate may not be there. He may have been transferred, he may have retired or he may not be available. In the absence of any records the Revisional Court would never be able to ascertain the correct position. The absence of the record, therefore, may cause prejudice 'both to the complainant and the accused Learned counsel compared the provisions of Section 200 with those of certain other sections of the Code as well. But these comparisons, except as hereinafter stated, do not appear to be relevant for our purposes. It has been strongly urged that one of the mandatory requirements implied in Section 200 is that Magistrate must record that there was no other witness present in Court and on account of the Magistrate's failure to do so the proceedings held before a Magistrate after taking cognizance under Section 200 of the Code are liable to be quashed or set aside.
33. In support of these propositions, learned counsel for the accused relied first on the judgment of Talukdar, J. (Sitting Singly) in MacCulloch v. The State, 78 Cal WN 307 - (1974 Cri LJ 182). The learned Judge has held that the provisions of Section 200 of the Code are mandatory; it is obligatory on the part of the Magistrate to examine not only the complainant but also the witnesses who are present in Court; and to fulfill his obligation under the Statute the Magistrate should, after the complainant is examined, enquire of the complainant whether any of his witnesses is present in Court; and if any witness be present, it is his duty to examine the witness.
34. Talukdar, J. has stated further that if no witnesses are present, the Magistrate should mention that fact in his order and if this procedure is not followed the order that is passed is not in accordance with the procedure established by law. His Lordship has also held that the order is not curable under Section 537 of the Code and must be set aside in limine. The learned Judge in support of his view has relied principally on the case of P. S Ramaswami Nadar v. R. Viswanathan, 1957 Cri LJ 673 (Mad). In this case of the Madras High Court, in a Re-visional Application, the complainant alleged that he was present with witnesses but the witnesses were not examined on oath and the Magistrate did not reduce into writing the substance of their examination. The Advocate for the complainant conceded before the learned Judge (Soma-sundaram. J.) that he did not represent the complainant at that stage and Mr. A. Nagarajan was the Advocate who appeared before the Magistrate for the complainant. Mr. Nagarajan was present in Court. On being asked by the learned Judge he said that two of the complainant's witnesses were present in the Magistrate's court. The learned Judge accepted the advocate's statement and proceeded to observe:
'The section is mandatory, and it is therefore obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who were present in Court.'
Somasundaram, J. in the next paragraph observes :
'the Magistrate in future will do well in asking the complainant as soon as he is examined on oath whether any witnesses are present in court, and if witnesses were present, it is his duty to examine them on oath; but if no witnesses are present, he will do well to mention in the order itself that no witnesses were present according to the statement of the complainant or the Advocate who appeared in court.'
35. There is no dispute that under Section 200 it is obligatory on the part of the Magistrate to examine the complainant and his witnesses present, if any, and to reduce the substance of their examination into writing which is to 'be signed by the complainant, his witnesses and the Magistrate, except in cases where any of the provisos to the section applies. But the observations of Somasundaram, J. with respect to the Magistrate's duty to enquire of the complainant whether witnesses were present and to record in his order sheet the result of his enquiry appear to be an expression by the learned Judge of what is desirable though not obligatory.
36. The other case on which Talukdar. J. has relied is the case of Nirmaljit Singh Hoon v. State of West Bengal, : 2SCR66 . Shelat, J. delivering the judgment on behalf of himself, Dua, J. and Khanna, J. observed at page 2640:
'The object of such examination (under Section 200) is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint, and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such a person.'
37. There is no doubt that the object of the examination under Section 200 is to enable the Magistrate to find out whether the complainant can make out a prima facie case and to see that the accused is not unnecessarily harassed. But that object has nothing to do, in our opinion with the requirement, if any, of recording in the order-sheet that no witness of the complainant was present.
38. The judgment in MacCulloch's case (1974 Cri LJ 182) (Cal) was approved by a Division Bench of this Court consisting of Talukdar and A. N. Banerjee, JJ. in Brahmananda Goyal v. N. C. Ghakrabarti, 79 Cal WN 60 = (1974 Cri LJ 1079). Here also reliance has 'been placed principally on Nirmaljit's case. : 2SCR66 and Ramaswami's case, 1957 Cri LJ 673 (Mad).
39. There is a difference, in our opinion, between desirability and a mandatory requirement. It is certainly desirable that a Magistrate after examining the complainant should enquire of the complainant or his lawyer if other witnesses are present in Court. And if the complainant or his advocate says that no other witness is present that statement should 'be recorded by the Magistrate in his order-sheet. Such recording obviously avoids the complications with which Somasundaram, J. was faced in Ramaswami's case. (1957 Cri LJ 673 (Mad)). But the question before us is whether the failure of the Magistrate to record the absence of witnesses of the complainant vitiates the proceedings which must be set aside. In our view the language of Sec. 200 does not warrant any statutory obligation of the Magistrate to enquire or ascertain whether any other witness of the complainant is present and to record the result of his enquiry. A Division Bench of the Bombay High Court also took a similar view in Dattatraya v. Wadilal. AIR 1958 Bom 335. It is useful in this connection to compare the language of Section 200 with the language of Section 252 of the Code. Section 252 is in Chapter XXI. The heading of this Chapter is 'Of the Trial of Warrant-cases by Magistrates'. Section 252 is in the following terms:--
'252 (1) In any case instituted otherwise than on a police report, when the accused appears or is brought 'before a Magistrate, such Magistrate shall proceed to hear the complainant, if any, and take all evidence as may be produced in support of the prosecution:
Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence 'before himself such of them as he thinks necessary.'
40. Sub-section (2) of Section 252 imposes a duty on the Magistrate in a case instituted otherwise than on a police report to make an enquiry of the complainant as to whether there are persons who are likely to be acquainted with the facts of the case and to be able to give evidence. The absence of this express provision in Section 200 is significant. If the intention of the legislature was that under Section 200 also it would be the Magistrate's duty to make an enquiry as to witnesses present the legislature would have couched Section 200 in suitable language. If in the same Code different languages are used, the Court cannot, by judicial legislation, bring Section 200 on a par with Section 252(2).
41. Then, again. Chapter XVI of the Code, as we have seen, deals with 'complaints to Magistrate'. It has four sections, namely. Sections 200 to 203 which have to be read together. At this stage 'of complaints to Magistrate' the choice to produce witnesses is given to the complainant. The words 'if any' suggest that the production of witnesses is optional. The complainant alone knows how he would establish his prima facie case as he only is coming to court with a grievance. The accused is nowhere in the picture. The complainant must, therefore, inform the Court that apart from his own evidence there are other witnesses to support him. This appears to be the 'basic principle of Section 200.
42. When we closely examine the language of Section 200 we find that the Magistrate has three duties. Firstly, the has to examine the complainant and the witnesses present, if any; secondly, he has to reduce in writing the substance of such examination; and thirdly, he has to see that what is reduced into writing is signed by the complainant and the witnesses as also by himself. There is no other duty cast on him. In a suitable case the complainant may file a petition to be kept on record that he had other witnesses but the Magistrate refused to examine them. But the section, in our opinion, cannot be interpreted keeping in view the inconveniences or complications or embarrassments or hardships which have been (pointed out by counsel for the accused. The principle of construction applicable to such cases is 'Where the Language of an Act is clear and explicit, we must give effect to it, whatever may 'be the consequences, for in that case the words of the Statute speak the intention of the legislature' (vide Craies on Statute Law, 3rd Edition, [page 66).
43. Any number of decisions can be cited in support of this proposition. Let us, however, refer to two decisions of the Supreme Court only, in Mysore State Electricity Board v. Bangalore W. C. and Cotton Mills : AIR1963SC1128 , the Supreme Court points out that inconvenience is not a decisive factor in interpreting a statute. Again, in Martin Burn Ltd v. Corporation of Calcutta, : 1SCR543 the Supreme Court has said that a result flowing from statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A Statute must of course be given effect to whether a Court likes the result or not.
44. In this connection another principle of construction may be 'borne in mind. Supposing there has been a mistake or an omission on the part of the Legislature. In interpreting a Statute the Court cannot fill in gaps to cure or rectify defects. Here, again, many English decisions may be cited. But let us confine ourselves to two Supreme Court decisions. In Smt. Hira Debi v. District Board Shahiahan-pur, : 1SCR1122 , the Supreme Court has observed that it is the duty of the Court to try and harmonise the various provisions of an Act passed by the legislature. But it is certainly not the duty of the Court to stretch the words used by the legislature to fill in gaps or omissions in the provisions of an Act. Then, again in Nalinakhya v. Shyam Sunder, : 4SCR533 , S. R. Das, J., speaking for the Supreme Court has observed :
'It must always be borne in mind, as said by Lord Halsbury in Commr. for Special Purposes of income-tax v. Pam-sel, (1891) AC 531, that it is not competent to any Court to proceed upon the assumption that the legislature had made a mistake. The court must proceed on the footing that the legislature intended what it had said. Even if there is some defect in the phraseology used by the legislature the court cannot, as pointed out in Crawford v. Spooner, (1846) 6 Moo PC 1, aid the legislature's defective phrasing of an Act or add and amend or by construction, make up deficiencies which are left in the Act. Even where there is causus omissus, it is, as said by Lord Rusell of Killowen in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 PC 63, for others than the Courts to remedy the defect.'
In our view these well-recognised princi-pies should be applied to Section 200 of the Code of Criminal Procedure, 1898 We should not try to import an obligation on the part of the Magistrate to make enquiries about witnesses present in Court when the Statute does not provide for such obligation however desirable or reasonable it might be.
45. Let us now compare the provisions of Section 200 with those of Section 203. Under Section 203 if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. Here, in this section, the legislature has imposed a duty on the Magistrate to reduce into writing briefly his reasons for rejecting a complaint. The legislature in Section 200 does not require the Magistrate to record in writing the absence of witness or witnesses of the complainant, if any. This is another indication why it is safe for the Court to adhere to the plain meaning of words used in the Statute rather than attempt to extend it to other matters not warranted by its language.
46. In any event, under Sec. 114 illustration (e) of the Evidence Act, the Court may presume that judicial and official acts have been regularly performed. If an order-sheet is silent as to the presence of other witnesses, it has to be presumed that no other witness was present. The complainant may however, want to rebut the presumption for which he should take appropriate steps, e. g., by filing a petition before the Magistrate as soon as he refuses to examine other witnesses. In Nur Mohamed v. Emperor, AIR 1945 PC 151, the Judicial Committee has held that the Board will always assume that a Court has followed the proper practice unless something appears which proves to the contrary. In our opinion, no Court should presume that a Judicial Officer will act in an irregular manner. Such a hypothesis cannot be invoked to interpret a Statute.
47. Learned counsel for the accused has drawn our attention to the importance of an order-sheet He has particularly referred to Orders 260 to 262 of the Criminal Rules and Orders Vol. 1 at pages 123 to 124. In Order 262 for instance, it is provided that an order-sheet in a prescribed form is to be used by all Magistrates subordinate to the High Court and shall include every interlocutory order from the date of complaint, or the date on which the accused is produced in custody or surrenders 'before the Magistrate and shall also contain the substance of the final order. It shall also contain full reasons for which each adjournment is granted. The orders, no doubt, enjoin that every relevant matter that has occurred in Court has to be recorded. They do not, it seems to us lay down that anything which has not happened should also be recorded.
48. Lastly, Courts have held that the provisions of Section 200 are merely directory. In Anil Kista Das v. Badam Santra, AIR 1929 Gal 175, the petitioner was convicted under Section 406/75, I.P.C. and had been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 35 The conviction was challenged before a Division Bench of this Court on two grounds. One of the grounds was that the proceedings were illegal as the sub-divisional officer issued summons against the petitioner without examining the complainant under Section 200. Cr. P. C. At that time there was no provision for examination of the complainant's witnesses present, if any. This -provision has been introduced, as we have seen, by a subsequent amendment. A Division Bench composed of Mukherji and Graham, JJ. held that the non-examination of the complainant before issuing summons against the accused was an irregularity which did not vitiate the trial in the absence of any prejudice to the accused. Our attention has not been drawn to any judgment which has taken a contrary view. Assuming, therefore, that the Magistrate had a duty as contended on behalf of the accused, the failure to perform that duty does not vitiate the trial altogether unless prejudice has been caused. It is merely an irregularity curable under Section 537 of the Code. Various other cases were cited in support of this proposition; but since we are of opinion that there is no duty cast on the Magistrate by Section 200 to record the absence of witnesses of the complainant, we do not intend to discuss this point further. In any event, there is nothing to show that any prejudice has been caused in the instant case.
48-A. The last contention of counsel for the accused has been that the facts stated in the petition of complaint disclosed at best a civil liability and not any criminal offence. Learned counsel wanted to rely on certain letters which the Magistrate issuing summons had no opportunity to consider. As we have said earlier for the purpose of issuing a process, the Magistrate is required to see whether the complainant has been able to make out a prima facie case. The Magistrate will look at the petition of complaint examine the complainant and his witnesses present, if any, and then decide whether on the basis of the evidence on record the complainant has succeeded in establishing prima facie that the offence complained of has been committed.
49. We are invited in this case to exercise our inherent power under Section 561-A of the Code of Criminal Pro-dure to quash the proceedings before the Magistrate. The Supreme Court in R. P. Kapur v. State of Punjab, : 1960CriLJ1239 has expressed the view that in exercising its jurisdiction under Sec. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.
50. In a proceeding under Section 200, therefore if a Magistrate has accepted the evidence of the accused, the High Court should not examine that evidence afresh in the exercise of its inherent jurisdiction with a view to test the acceptability or reliability of that evidence.
51. Then, again, in Chandradeo Singh v. Prokash Chandra Bose. : 1SCR639 , it has been observed that the entire scheme of Chapter XVI of the Code shows that an accused does not come into the picture at all till the process is issued. The accused may remain present either in person or through a counsel or agent in order to be informed of what is going on; but he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the 'basis of materials placed before the Magistrate by the complainant. Whatever defence the accused may have can only be enquired into at the trial. Permitting an accused, says the Supreme Court, to intervene during enquiry would frustrate its very object and that is why, the legislature has made no specific provision permitting an accused to take part in an enquiry. At the stage contemplated by Chapter XVI the object of the enquiry is to ascertain the truth or falsehood of the complaint. But the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the statements in the petition of complaint, the statements on oath which the complainant makes and the statements of persons examined at the instance of the complainant. Where there is prima facie evidence, according to the Supreme Court, even though an accused may have a defence that the offence has been committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. An enquiry under Chapter XVI can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence.
52. In the light of the principles laid down in Chandradeo Singh's case : 1SCR639 we have to overrule the contentions of Mr. D. C, Roy for the accused that the facts disclosed a civil liability. The Magistrate, in the instant case, read the petition of complaint filed on the 16th July. 1973, on behalf of Shyamsundar Singhania, On the same day he examined the complainant. The complainant said to him that he was the Manager of Messrs. Akhil Bandhab Chemical Industries (P.) Ltd. The Limited Company is the proprietor of Arbind Trading Co. The accused Tara Dutta was one of the Directors of the Limited Company. Arbind Trading Co has a factory at Boral in Sonarpur. An Ambassador car (No. WBG 3002) was purchased by Arbind Trading Co. Shyamsundar used the car. On 9th March, 1971, the factory declared a closure when Shyamsundar was not keeping well. Tara Dutta was entrusted to look after the post-closure affairs. Shyamsundar entrusted the car to Tara Dutta on the understanding that he would return the car to Shyamsundar on demand. Tara Dutta took charge of the car. He went to Ranch for a change. He was utilising the car for his personal use. He was removed from Directorship on 25th September, 1971 and this fact was communicated to him. He was then asked to return the car. A registered notice was issued. The car is hypothecated to a Bank. The accused has not yet made over the car either to Arbind Trading Co. or the Bank and is trying to dispose of the car.
53. In the petition of conplaint also, substantially the same allegations have been made.
54. On the evidence available to him the Police Magistrate, First Class, Alipore on 16th July, 1973, issued summons under Section 406, I.P.C. He also issued a Search Warrant for recovery of the car which might be kept in police custody.
55. Mr. D. C. Roy has showed to us a few letters to show that the Bank asked accused to return the car to the Bank. In other words, rival claims were made by Shyamsundar and the Bank. These letters, the Magistrate had not seen at the time of issuing summons. In our opinion he was justified in issuing process as he appears to have been satisfied upon considering the evidence on record that the complainant had made out a prima facie case. The accused may have a complete defence which would be considered at the trial. At the stage of the enquiry under Chapter XVI the Magistrate could not have considered, on the facts and in the circumstances of this case, whether the facts alleged involved a civil liability. We are, therefore, unable to agree that the proceedings should be quashed on this ground.
56. In the result, for reasons stated in this judgment, the Rule which Talukdar, J. issued on 27th August, 1973 is discharged and the interim stay is vacated. Let the records be sent back to the Trial Court.
57. In conclusion we express our gratitude to Mr. Dattagupta for the assistance he has given to us.
N.C. Mukherji, J.
58. I agree.
Bimal Chandra Basak, J.
59. I agree.