ROSY AND ANR. v. STATE OF KERALA AND ORS

Citation: [2000] 1 S.C.R. 107

Court: Supreme Court of India

Bench: K.T. THOMAS, M.B. SHAH

Judgment text

ROSY AND ANR. v. STATE OF KERALA AND ORS. J&"lUARY 10, 2000 [KT. THOMAS AND M. B. SHAH, JJ. ] Criminal Law . · Criminal Procedure Code, 1973 : Section 202(2) proviso-Holdi11g of inquiry-By Magistrat~ ! 11 cases exclusively triable by Sessions Court-Nature of Discretionary or mandatory-Case committed to Sessions Court without examining any witnesl~bjection regarding non-examination of witnesses by the committal court raised only at the lWge offinal argumenfa· after rewrdmg ofprosecution evidence and statements of accused under s. 313-Validity of-Held : Per Thomas, !. ; mandatory but omission by itself will not vitiate the proceedings and if belated objection is taken it has to be decided according to S. 465-Per Shah, ! ; discretionary but omission by itself will not vitiate trial unless it is e1·tablished that prejudice is caused to the accu. 1ed--Per curium; since the objectin11 i~ takrn wher: t11e Ilia/ i. I' almost over the High Court e"ed in directing the Afagfatratr!

tn conduct a fresh enquiry and thereafter commit the case to the Sessions Court-Case remanded to the Sessions Court with the direction to complete the hearing and dfapose of the case on merits-Kera/a Abkari Act-lnterpretation of Statutes. Section 202(2j proviso-Nature of- Mandatory or discretionary--Legislative intent-Detennination of-- sing committal order dated 26. 5. 1990. After hearing both the sides, the learned Sessions Judge arrived at the conclusion that there was breach of mandatory provisions and consequently prt:judice was caused tu the accused. He found it difficult to decide as to which further course was required to be followed and, therefore, he made a reference to the High Court under Section 395(2) of the Code. That case was numbered as Crl. Reference No. 2 of 1999. The accused fikd Crl. R. P. ~o. 1035 of 1998 against the reference order. Both matters w. :re disposed of by the High Court as per the impugned judgment.

The High Court arrived at the conclusion that proviso to Section 202 (2) is mandatory, thcr.! fore, non- examination of the witnesses at that stage __/ would rewlt in substantial failure of :ustm: and hence tht urdtr of committal was vitiated. The Magistrate was din:ch:d to conduct a fresh enquiry in terms of proviso tu Section 202 (2) by examining all the witnesses ions, the direction of inwstigation by the police officer is not permissible and he is required to hold inquiry by himself. Dunng that inquiry he may decide to i::xamim: the witnesses on oath. At that stage, proviso further gives mandatory direction' that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is th hou! d be intcrfored with and the Sessions Judge he direckd to proceed from where he stopped. But I haw a different approach regarding the interpretation of Section 202 of the Code of Criminal Procedure (for short 'the Code').

Interpretation of the said provision is of great practical importance in inquiries and trials. Hence I deem it appropriate to express my views on the interpretation of the proviso to Section 202(2) of the Code. The facts of this case reflect the gla;ing example of how failun: to raise objection at the appropriate stage could, procrastinate criminal proceedings unduly to unpalatable levels. A! most eleven years have passed since the alleged offence was committed (being in possession of arrack containing methyl alcohol) and except the first two yeas which the Excise officers took for compkting the formalities to launch the prosecution, the re't of the years rolled on dm: lo th.. : dday in court procedures. If the impugned order of the High ection only says that 'the court shall have regard to the fact ' that objection has been raised at the earlier stage in the proceedings. It is only one of the considerations to be weighed but it does nut me nut a must.

If the said proviso was placed in Section 200 of the Code even a doubt that [20<Xl] 1S. C. R. the legislative idea is to have all witnesses examined by the magistrate wht:n the offence complained of is triable exclusively by the Court of Session would have been displaced. Nonetheless the placement of the proviso is not the only criteria in discerning the legislative intent. Indications can be gathered from other connected provisions for taking a contrary view. Chapter XVI of the Code contains provisions for commencement of proceedings before magistrate. Section 204, which is already referrt:d to, enjoins on the magistrate to issue process if the magistrate forms the opinion that there is ''sufficient ground for proceeding'. When the offence is triable by a court of session the task of the magistrate cannot be restricted to considering whether process should be issued. There must be sufficient ground for proceeding. Proceeding to what?

In this context Section 208 of the Code is important and hence it is extracted below : "208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.

- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following : (i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate; (ii) the statement and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely : Provided that if that Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

" Three categories of documents are mentioned in the aforesaid section the copies of which the magistrate, who proceeds from the stage in Section 204, has to supply to the accused free of cost (in a complaint case involving an offence triable exclusively by a Court of Session). As the words ROSY v. STATE [THOMAS, J. ] 133 used here are "~hall furnish", it is almost a compelling duty on the ruagistrate to supply the said document to the accused. How can the magistrate supply such documents? (In the present context the documents referred to in the third category mentioned in clause (iii) are not important. ) The first category delineated in clause (1) of Section 208 consists of "statement recorded under Section 200 or Section 202 of all persons examim:d by the magistrate.

" It is now important to note that the words "if any'' have been used in the second category of documents which is delineated in clause (ii) of Section 208, but those words are absent while delineating the first category. In my view those two words have been thoughtfully avoided by Parliament in clause (i). If a magistrah. : is to comply with the aforesaid requirements in Section 208 of the Code (which he cannot obviate as the language used in the sub-section is of any indication) what is that manner in which he can do it in a case where he failed to examine the witnesses before issuing process to the accused? The mere fact that the word "or" is employed in clause (1) of Section 208 is not to be understood as an indication that the magistrate is given the freedom to dispense with the inquiry if he has already examined the complainant under Section 200.

A case can be visualized in which the complainant is the only eye witness or in which all the eye witnesses were also present when the complaint was filed and they we::re all examined as required in Section 200. In such a case the complainant, when asked to produce all his witnesses under Section 202 of the Code, is at liberty to report to the magistrate that he has no other witness than those who were already examined under Section 200 of the Code. When such type of cases are borne in the mind it is quite possible to grasp the utility of the word ''or" <vhich is employed in the first clause of Section 208 of the Code. So the intention is not to indicate that the inquiry is only optional in the cases me::ntioned in Se::ction 208. It is pertinent to consider yet another aspect. It is of importance from practical point of view also. Section 209 of the Code enjoins on the magistrate to commit the case to the Court of Session after complying with the provisions in Section 208 of the Code.

Once the case is committed it proceeds to the next stage for which the venue is the Court of Session. The trial in the Court of Session is envisaged in Chapter XVIII. It must be borne in mind that in the:: Sessions Court a public Prosecutor alone can (2000) 1S. C. R. conduct prosecution, whether the case was instituted on police report or on complaint. Section 226, falling within the aforesaid Chapttr, requires the public prosecutor to make the open address to the Sessions Court. That section reads thus : - "226. Opening case for prosecution. - When the accused appears or is brought before the Court in pursuance of a commitment of the case by describing the charge brought under section 209, the prosecutor shall open his case against the accused and stating by what evidence he proposes to prove the guilt of the accused.

" If a case instituted on complaint is committed to the Court of Session without complying with the requirements in clause (I) of Section 208 of the Code how is it possible for the public prosecutor to know in advance what evidence he can adduce to prove the guilt of the accused? If no inquiry under Section 202 in to be conducted, a magistrate who decides to proceed only on the averments contained in the complaint filed by a public servant (who is not a witm:ss to the core allegation) and such a case is committed to the Court of Session, its inevitabk consequence would be that the Sessions Judge has to axe down the case at the stage of Section 226 itself as the public prostcutor would then be helpless to state "by what evidence he proposes to prove the guilt of the accustd". If the offence is of a serious nature or is of public importance the consequence then would be miscarriage of justice.

In this context it is useful to know the reason for incorporating such a proviso in Sub-stction (2) of Section 202 of the Code. For that purpose petp into the corresponding legal position which existed prior to the introduction of the new Code will be useful. Under the Code of Criminal Procedure 1898 (old Codt) a fullfledged magistrate inquiry was contemplated in the committal court and the prosecution was then required to examine all the witnesses at that stage itself. By Act 26 of 1955 the Parliament abridged the above procedure and it was provided therein that in police charge-sheeted cases only the witnesses to the occurrence need be examined in the committal court (vide Section 207A of tht old Code). While the situation remained thus as provided in Section 207A of the Code, the Law Commission submitted its 41st Report recommending ROSYv. STATE [THOMAS, J. ] 135 various changes in the Code among which it was recommended that inquiries in committal courts should be dispensed with.

After giving elaborate reasons for such abolition the Law Commission made the following recommendations also : ''We arc recommending an a subsequent chapter (referred to earlier) the abolition of commitment inquiries. This necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Sessions. We recommend that the Magistrate who takes cognizance of such offence 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. Further, in such cases the Magistrate should not direct an investigation by a police officer or other person. For this purpose, we propose two amendments of Section 202 in the form of another proviso to sub-st! ction (1) and a proviso to sub- section (2)".

The recommendations so made by the Law Commission have been virtually incorporated by Parliament in Section 202 of the present Code. This Court has already taken the stand that it would be advantageous to look into the deliberations made in the legislature, the objects and Reasons for the enactments including recommendations of the Law Commission for the purpose of discerning the legislative idea behind inclusion of any particular provision (vide Santa Singh v. State of Punjab, [1977] 1 SCR 229 and Mithilesh Kumari v. Prem Behari Khare, [1989] 2 SCC 95. In the latter decision a two-judge Bench has stated thus : ''Is it permissible to refer to the Law Commission's Report to ascertain the legislative intent behind the provision? We are of the view that where a particular enactment or amendment is the result of recommendation of the Law Commission of India, it may be permissible to refer to the relevant report as in this case.

What importance can be given to it will depend on the facts and circumstances of each case. '' Regarding Section 202 of the Code Parliament has taken the cue from the Law Commission Recommendation and introduced all the parameters in accordance with such recommendations. That is yet another factor which lends support to the interpretation which I have adverted to above. Thus I have no doubt that the proviso incorporated in Sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the magistrate, but a compelling duty on him to perform in such cases. I wish to add that the magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the magistrate to issue such summons, for, there is nothing in the Code which prevents the magistrate from issuing such summons to the witnesses.

I n::itcrak that if the magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage n:garding such omission tht: court can consider how far such omission would have led to miscarriage of justice, when such objection is taken at a latt:r stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code. With all the above reasons l agree with my learned brother that the impugned order passed by the High Court is to be set aside and the Sessions judgt be directed to dispose of the case on merits in accordance with law. • v. s. s. Appeals allowed.