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Kamal Krishna De Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ1492
AppellantKamal Krishna De
RespondentState and anr.
Cases ReferredCommr. of Income Tax v. S. S. Devi
Excerpt:
- .....this section provides that while the magistrate issues processes on complaint and the offence is triable exclusively by the court of session, the magistrate should grant to the accused copies of the statements of all persons examined by the magistrate and other materials on which the prosecution relies. section 208 cr.p.c. has been incorporated in the statute so that the accused may get adequate information about the charge and prepare for his defence in the court of session as commitment proceedings have been abolished. on a scrutiny of the record of the learned magistrate we do not find that prior to the order of commitment the papers have been furnished to the accused. the word 'shall' appearing in section 208 cr.p.c. is only directory. the omission to supply copies in the.....
Judgment:

P.K. Chanda, J.

1. This revisional application has been filed for quashing of the proceeding being Case No. 312C of 1974 Under Sections 147/323/325/307 I. P. Code including the orders dated September 24, 1974, October 17, 1974 and November 22, 1974.

2. A petition of complaint was filed by O. P. No. 2 Biswanath Santra in the Court of the Sub-divisional Judicial Magistrate, Ghatal in the district of Midna-pore on 23-9-74. It appears that B. K. Mitra, Sub-divisional Judicial Magistrate, Ghatal was absent on that date and R. K. Ghosh a Judicial Magistrate was dealing with his files. Apropos of the filing of the complaint the complainant and two witnesses were examined and on the prayer of the complainant time to examine further witnesses was allowed till 24-9-74.In the petition of complaint it was stated that besides 9 witnesses named therein, there were other witnesses. On 24-9-74 three other witnesses were examined. After examination of three witnesses the learned Magistrate R. K. Ghosh issued warrant of arrest against all the petitioners before us Under Sections 147/323/325/307 I.P.C. and fixed 17-10-74 for return. On 8-10-74 two petitioners Shib Narayan and Ajit appeared before the Sub-divisional Judicial Magistrate B. K. Mitra who enlarged them on bail. On the next date three other petitioners, Kamal, Narayan and Monoranjan appeared before the said Sub-divisional Magistrate and they were released on bail. It appears from the order dated 9-10-74 that a petition was filed by the 'prosecution' and that was ordered to be put up on 17-10-74 for hearing. On 17-10-74 the complainant and the accused were present. The learned Sub-divisional Judicial Magistrate passed the following order :

To my file

To 22-11-74 for committal,

Order

Petition of the defence would be heard on the date fixed. Accused as before.

Later :

Record received by transfer. Five accused on bail are present.

They may find bail of Rs. l,000/- each with two sureties of like amount i.e. to J/C.

To 22-11-74 for committal order.

Accused as before.

Bail bonds are furnished and they are accepted.

Then on 22-11-74 the Sub-divisional Judicial Magistrate passed the following order :

Accused (5) on bail present,

Compt. present.

In this case, summons have been issued Under Sections 147/323/325/307 I.P.C, Offence Under Section 307 I.P.C. is exclusively triable by the Ld. Sessions Court. Hence, the accused persons are committed to the Court of Sessions, Midnapore Under Section 209 Cr. P. C, for facing trial.

3. The grounds taken in the revisional application are (1) that R. K. Ghosh having taken cognizance of the alleged offences on 23-9-74, the transfer of the case to his own file by B. K. Mitra was illegal and it vitiates the entire proceeding following the illegal order of transfer ; (2) that there has been non-compliance of the provisions of Section 208 of Criminal Procedure Code ; (3) that the committal Court is not to approach the case in a mechanical manner and the learned Magistrate erred in law in not recording a finding that from materials on record it appeared to him that the offences complained of are exclusively triable by the Court of Session and absence of such finding vitiates the order of commitment. In course of hearing of this Rule, Mr. N. C. Banerjee appearing on behalf of the petitioners has added another ground (4) to the effect that there has been non-compliance with the provisions of the proviso to Section 202(2) of the Code of Criminal Procedure (1974).

4. As regards the first contention raised on behalf of the petitioners, we find no substance. We do not know whether Sri R. K. Ghosh was Sub-divisional Judicial Magistrate on 23-9-74 and 24-9-74. But he was certainly the presiding officer of the Court of the Sub-divisional Judicial Magistrate and as such was his successor-in-office. He took cognizance of the offence and issued processes. There is no doubt that Sri B. K. Mitra was Sub-divisional Judicial Magistrate on 9-10-74, 17-10-74, and 22-11-74. Section 35(1) of the Criminal Procedure Code, 1973 runs thus :

(1) Subject to other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.

5. Sub-section (3) of Section 35 does not control Sub-section (1), Section 35 of the new code corresponds to Section 559 of the old code with slight modifications. The observations of the Supreme Court in Ajaib v. Joginder Singh, : 1969CriLJ4 that the old Sub-section (2) had not the effect of limiting Sub-section (1) and it does not mean that until a successor is determined under Sub-section (2) there is no succession for the purpose of Sub-section (1) are quite applicable with Section 35 of the new Act. There is no bar on the part of a Sub-divisional Judicial Magistrate by virtue of Section 35(1) Cr. P. C. to transfer a case though cognizance of the offence was taken by his predecessor in office. In the instant case though the learned Magistrate Sri Mitra in his order dated 17-10-74 noted 'Record received by transfer', there was in fact no transfer as he was the presiding officer of the Sub-divisional Judicial Magistrate's Court after Sri R. K. Ghosh. In other words, he was successor-in-office of Shri R. K. Ghosh.

6. We now turn to the second contention raised by Mr. Banerjee with reference to Section 208 Cr. P. C. This section provides that while the Magistrate issues processes on complaint and the offence is triable exclusively by the Court of Session, the Magistrate should grant to the accused copies of the statements of all persons examined by the Magistrate and other materials on which the prosecution relies. Section 208 Cr.P.C. has been incorporated in the statute so that the accused may get adequate information about the charge and prepare for his defence in the Court of Session as commitment proceedings have been abolished. On a scrutiny of the record of the learned Magistrate we do not find that prior to the order of commitment the papers have been furnished to the accused. The word 'shall' appearing in Section 208 Cr.P.C. is only directory. The omission to supply copies in the Magistrate's Court does not vitiate the order of commitment. In the instant case the accused will not be prejudiced in any way if they are supplied with the. copies of the papers before the learned Judge of the Court of Session takes up the case for determining whether or not charge against the accused persons should be framed as contemplated by Section 228 Cr. P. C. But while we hold the word 'shall' in Section 208 to be directory, we do not intend to encourage latches on the part of the prosecution or the Magistrate who will be expected to comply with the provision except in exceptional circumstances.

7. Mr. Banerjee has contended that the learned Magistrate did not apply his mind at all before the order of commitment and as such the order should be set aside.

Section 209 Cr. P. C. lays down 3

'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 :

8. The instant case is not on Police report but it rests on a complaint. The offence Under Section 307 I.P.C. is triable exclusively by the Court of Session. The Magistrate after performing certain preliminary functions like granting copies, preparing the records, notifying the Public prosecutor etc., is to formally commit the case to the Court of Session which could not take cognizance of the offence.The contention raised by Mr. Banerjee raises the question what will be the true construction of the words 'it appears to the Magistrate' in Section 209. If the contention of Mr. Banerjee is to be accepted, then these words give jurisdiction to decide whether or not there should be commitment. The normal connotation of the word 'appears' is 'seems' or to be in one's opinion. So it is the mere opinion of the Magistrate that must prevail. The words 'it appears to the Magistrate' do not connote satisfaction of the learned Magistrate to enable the superior court to judge whether there was sufficient ground for satisfaction. Preliminary inquiry by a Magistrate in cases exclusively triable by Court of Session has been dispensed with as such an inquiry served no useful purpose and involved a great deal of infructuous work causing delay in the trial of sessions cases. There was no scope for any inquiry after the processes were issued in the instant case. The learned Magistrate after performing some preliminary duties referred to earlier is to formally commit the case. The words 'it appears to the Magistrate' are obviously put in for the purpose of making the Magistrate the sole authority on the question and do not introduce any new aspect. It depends upon the opinion of the Magistrate not upon the fact of sufficiency or insufficiency of materials. That this is so will be evident from the fact that (apart from an order of commitment in compliance with the mandatory (provisions) of Section 209 Cr.P.C.), the Magistrate merely on report of a police may commit an accused to court of session on perusal of the same without any inquiry, if it appears to him that the offence in respect of which charge sheet has been submitted is triable only by the Court of Session. As regards private complaints in cases triable exclusively by a court of session, the inquiry into the complaint by the Magistrate Under Section 202 will serve the purpose of a preliminary scrutiny. Under Section 202(2) Cr.P.C. a Magistrate who takes cognizance of an offence triable exclusively by the Court of Session on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. In such cases it is not within the competence of the Magistrate to direct investigation by some Police Officer or other person. It is true that a Magistrate after complying with the relevant provisions of the proviso to Section 202(2) may not be inclined to issue process at all. If complying with the provisions of Section 202(2) proviso, the Magistrate is satisfied that processes in respect of offences triable exclusively by the Court of Session should be issued and the accused appears as in the present case, he has nothing else to do except formally committing the accused to Court of Session. That apart the order dated 22-11-74 itself suggests that the Magistrate was of opinion that it was triable by the Court of Session.

9. Mr. Banerjee has submitted that the Magistrate has not done everything which is made by the sliatute a condition precedent to the issue of process. This raises the question whether the learned Magistrate has complied with the provisions of Section 202 Cr. P. C. The proviso to Sub-section (2) of Section 202 Cr. P. C. enjoins that a Magistrate who has taken cognizance of an offence triable exclusively by a Court of Session will himself make an inquiry into and in doing so call upon the complainant to produce all his witnesses and examine them on oath. In other words, he is to perform certain statutory functions before issuing processes in connection with offences triable by the Court of Session, Though the procedure under the old Code which enjoined commitment inquiry has been abolished, a special procedure has been provided in Section 202 Cr. P. C. which serves the purpose of preliminary inquiry as was contemplated by the old Act. The examination of the witnesses as contemplated by the proviso to Section 202(2) must be done before process is issued. In the petition of complaint names of ten witnesses were given. It was also stated that besides those ten witnesses, there were other witnesses. It is conceded by the learned Advocate appearing on behalf of the complainant O. P. that all his witnesses were not examined. The learned Magistrate did not even call upon the complainant to produce all his witnesses. Before we proceed further we propose to quote certain observations of Chinnappa Reddy. J in recent judgment viz. Budaraju Rao v. T. V. Sarma reported in 1976 Cri LJ 902 (Andh Pra). While overruling a similar contention His Lordship said :

Section 200 requires a Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present. Section 204 empowers a Magistrate to issue process to secure the attendance of the accused, if in his opinion there is sufficient ground for proceeding. Section 202

(1) however enables a Magistrate to issue process and to enquire into the case himself or direct an investigation by a Police Officer or other person, for the purpose of deciding whether or not there is sufficient ground for proceeding. When a Magistrate proceeds to make such an enquiry he is required by the proviso to Section 202(2) if the offence complained of is triable exclusively by the Court of Session, to call upon the complainant to produce all his witnesses and examine them on oath. The proviso appears to be intended to provide against a Magistrate refusing to take cognizance and issue process without calling them on oath. In cases where the offences complained of are triable exclusively by the Court of Session, it is not intended to give a lever to the accused to complain that the Magistrate should not have taken cognizance of the case without examining all the complainant's witnesses. A complainant may complain against the refusal of a Magistrate to take cognizance of the case without examining all his witnesses. But an accused cannot complain against a Magistrate taking cognizance of a case without examining all the witnesses. Sri Ayyahhu Reddy urged that the proviso to Section 202(2) was intended to provide the accused with an opportunity to know the case against him and the witnesses who were going to depose against him. I do not think that is the object of the proviso. The accused does Hot enter the picture at all at that stage. The enquiry by the Magistrate Under Section 202 is only for the purpose of enabling him to decide whether or not there is sufficient ground for proceeding. In deciding that question the Magistrate is required to call upon the complainant to produce all his witnesses and examine them on oath in the case of offence exclusively triable by a Court of Session. The provision is clearly not meant to furnish any fodder to the accused.

10. With great respect, we are unable to agree with the observations quoted above. The examination of the complainant and all his witnesses is not a mere matter of formality. We are unable to subscribe to the view that the accused after he enters appearance cannot point out illegality in procedure at a stage prior to the issue of process as he did not then come to the picture. In Abhoyeswariv.Keshori, (1915) ILR 42 Cal 19 (23) : 15 Cri LJ 348 (349) this Court upheld the contention raised by the accused after he entered appearance before theMagistrate in obedience with the processes issued, that no process could be issued against the accused unless and until the Magistrate had examined the complainant When a Magistrate takes cognizance of an offence he is bound Under Section 202(2) proviso to examine on oath all the witnesses. The failure to do this is not a mere matter of formality. The order of issuing processes without complying with the proviso renders subsequent proceedings illegal and is covered by the authority of their Lordships of the Privy Council reported in (1901) 28 Ind App 257 (PC), Subrahmanya Iyer v. Emperor. Their Lordships made the following observations :

The procedure adopted was one which the code positively prohibited and it was possible that it might have worked actual injustice to the accused.

11. Section 208 casts a statutory duty on the Magistrate to furnish the accused free of cost with copies of statements of all persons examined by the Magistrate. This provision has been incorporated in the Code so that the accused gets sufficient information about the allegations against him and to enable him to prepare tor his defence. On account of non-examination of all the witnesses as contemplated by the proviso to Sub-section (2) of s. 202, the accused has been deprived of the statutory right to get adequate information about the charge against him and to prepare his defence. The learned Magistrate even did not call upon the complainant to produce all his witnesses. This was necessary because the accused under the new Code has no longer a right and opportunity to cross-examine the witnesses before the order of commitment. He cannot, therefore, be made aware of the true picture of the case against him in any other manner. The provision being of incalculable importtance for the accused it cannot be ignored without detriment to the cause of the accused. In other words, non-compliance with the same is likely not only to mislead him but to end in failure of justice. The provision is intended to enable the accused to have an overall picture of the case against him and to afford him a full and fair opportunity of defending himself. This is a mandatory provision which must be complied with. It may be looked at from another aspect also. On a complaint in regard to an offence triable by a Court of Session, no copy of the statement of the witness recorded by the Police is available to the accused. Unless the wit-nesses are examined as contemplated by the proviso to Section 202(2) the accused would not be in a position to point out discrepancy, if any, in the evidence given : in the Court of Session and at the inquiry as contemplated by the proviso to Section 202(2). The statements thus recorded Under Section 202 might provide important material for cross-examination of the prosecution witnesses in the Court of Session. We, therefore, propose to insist on the provisions of Section 202 Cr. P. C. being strictly enforced.

12. It is true that an order of commitment being an interlocutory one, revision does not He in view of the provisions of Section 397(2) Cr. P. C. But this Court has power to set aside the order Under Section 482 Cr. P. C. in exceptional cases when the mandatory provisions of the statute have been violated and the accused has been deprived of certain statutory rights, that is, to get adequate information about the allegations against him. This Court can also set aside the order of commitment in exercise of its power of superinten dence under Article 227 of the Constitution. In the instant case, in view of the manifest illegality committed by the learned Magistrate on account of non-compliance with the provisions of the proviso to Section 202(2), we think it is a fit case where inherent power should be exercised.

13. In view of the discussions made above, the Rule is made absolute. The order of the learned Magistrate issuing processes against the petitioners and the subsequent orders including the order of commitment are set aside. The learned Magistrate will begin from the stage prior to the order issuing processes and proceed in accordance with law.

Sudhamay Basu, J.

14. I agree. I would only like to add a few words on some aspects of the submissions made by Mr. Banerjee.

15. As to the provisions of Sections 207 and 208 there is hardly any doubt that the object of the provisions is to afford adequate opportunity to the accused for proper defence. As the Supreme Court pointed out in the case of Gurbachan Singh v. State of Punjab, : 1957CriLJ1009 , the object of supplying copies of statements of witnesses and other documents is to put the accused on notice of what he has to meet at the enquiry or trial. Construing the provisions of Section 173(4) and Section 207-A (3) of the old Criminal Procedure Code as amended by the Act of 1955 the Supreme Court in the case of Narayan Rao v. State of Andhra Pradesh, : 1957CriLJ1320 , held that non-compliance with those provisions has not the result of vitiating the proceedings and subsequent trial. The word shall occurring in those two sections were held to be not mandatory but directory. The consideration which weighed with the Supreme Court was that an omission by a Police Officer to fully comply with the provisions of Section 173 should not be allowed to have such a farreaching effect as to render proceedings including trial before, the court of sessions fully ineffective. Mr, Banerjee while arguing on the Section 208 of the new Act similarly urged that the word 'shall' should be construed to be mandatory. My learned brother has already held the same not to be so. I also agree with him in this respect. All that is necessary is to see that the accused is not seriously prejudiced in conducting his defence. The Magistrate certainly should try to furnish to the accused the necessary statements and other documents without delay as envisaged by the Act itself. While we hold that non-compliance will not vitiate the trial, at the same time we insist, as has already been indicated earlier, that every endeavour should be made to comply with this provision. The accused is not to be caused any serious prejudice. In the Supreme Court case also it was observed that if in a particular case it transpires that the omission on the part of the prosecution has caused serious prejudice the court may in the interest of justice even reopen the proceedings. Every case will depend upon the facts and circumstances of the case. The golden principle to be adhered to is the fairness of the trial and avoidance of any serious prejudice to the accused.

16. The expression 'it appears to the Magistrate that offence complained of is triable exclusively by the Court of Session' appears twice, once after the proviso to Sub-clause (2) of Section 202 and again in the first paragraph of Section 209, According to Section 202 once it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he has to call upon the complainant to produce all his witnesses and examine them on oath. Section 209 provides that when 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 commit the case to the Court of Session. A question which arises in this context is whether the expression 'and it appears to the Magistrate that the offence is triable exclusively by the Court of Session' confers any discretion upon the Magistrate or he has to commit the accused to Session without any further consideration. If he is not endowed with any power of discretion Under Section 209 then it would mean that once Under Section 202 it appears to him that the offence complained of is triable exclusively by the Court of Session the next steps of examining the witnesses and calling upon the accused to appear and committing the case to the session become automatic processes. If that is so and no discretion altogether is meant to be conferred upon the Magistrate the expression in Section 209 'and it appears to the Magistrate that the offence is exclusively triable by the Court of Session' will have no meaning (so far as the cases not instituted upon police report are concerned) except to read it as reproduction of the language used in Section 202 by way of description of the nature of the case before the Magistrate. In other words, It would mean that when the accused is brought to the Magistrate and the case is of the particular description as mentioned earlier in Section 202 there will be automatic commitment to the Court of Session. The phrase 'appears to the Magistrate' by itself, it may be argued, must involve some consideration. In that view even after the Magistrate decides at the initial stage to call upon the complainant to produce his witnesses he would once again be invested with the discretion for a second time before he commits. The second view seems to be in accord with the intention of the legislature which is to be gathered from what it has chosen to indicate either in express words or by reasonable and necessary implication. We may refer in passing to the notes on clauses of Section 209 but it should be noted that the statement of object and reason as such are to be excluded from consideration in construing an Act as unlike preamble and headings they form no part of the Act itself (see Central Bank v. The Workmen, reported in : [1960]1SCR200 ). But the same can of course be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsors of the bill to introduce the same. (State of West Bengal v. Subodh Gopal, reported in : [1954]1SCR587 Ranganathan v. Govt. of Madras, reported in : [1955]2SCR374 ; Commr. of Income Tax v. S. S. Devi, reported in : [1957]32ITR615(SC) ). Clause 214 (Section 209).

Preliminary inquiries by Magistrate in cases exclusively triable by the Court of Session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. The abbreviated form of inquiry provided for by the amendments made in 1955 and contained in Section 207A has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems created fresh problems. Preliminary inquiries are, therefore, being dispensed with in cases triable by a Court of Session. However to perform certain preliminary functions like granting copies, preparing the records, notifying the public prosecutor, etc. provision is being made that the Magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the Court of Session. As regards private complaints in cases triable exclusively by a Court of Session the inquiry into the complaint by the Magistrate under the existing Section 202 will serve the purpose of a preliminary scrutiny.

17. From the scheme of the new Act, from the numerous important departures made from the old procedure and other considerations mentioned herein the aforesaid view seems to be supported. It is to be noted that departure has been made from the old procedure in which commitment used to be of an accused but under the new Code commitment is contemplated only of a case. The difference emphasises that while in the old Code commitment was final under the new Code it is not so. It is now open to the Sessions Court to discharge the accused Under Section 227. Under the new scheme the power to ascertain and come to a decision by the exercise of discretion to discharge the accused is now conferred upon the Sessions Judge alone. In that context recording of witnesses by the Magistrate at the initial stage seems to be merely a preparatory stage. The scheme of the new procedure and the rationale behind it is also apparent when it is taken note of that some important aspects of the old procedure have been done away with, e.g. (1) Enquiry before committal ; (2) Classification of cases which would be tried concurrently by Magistrates and Sessions Court ; (3) Recording of statement of the accused ; (4) Power of discharge of the accused by the Magistrate ; and (5) The Magistrate's power of framing charges.


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