Magisterial level officers often struggle to reconcile one or the other judicial pronouncement with the bare provision contained in specific statutory enactment and one of the dilemmatic situation can be found when a Magistrate tries to commit a complaint case to the court of session when he finds that the offence involved therein is exclusively triable by session court. Should he commit the case after supplying copies of documents to the accused or should he record pre-charge evidence before committing the case is the question which creates a dilemma in the mind of a judicial officer because, on the one hand he perceives that Code of Criminal Procedure does not require him to record pre-charge evidence but on the other hand, he has in his hand a clear dictum from a constitutional court directing to do so. Present paper is humble attempt to understand the finer points pertaining to the situation which creates such a dilemma.
2. We will find from a cursory look at the website of Delhi Courts that the committal of a case instituted on a police report is simple and does not pose any difficulty. We are therefore required to concentrate on the procedure for committing a complaint case. We know that a Magistrate can take cognizance of an offence on several grounds including a complaint in which case he has to follow certain procedure prescribed in Section-200-203 of CrPC. Section-204 which empowers the Magistrate to summon a person accused of the offence, is basically common to all the cognizance barring few additions. After complying with the requirements, Magistrate summons the accused and supplies copies of available documents under Section-207 if it is a police case and under Section-208 if it is a complaint case. We shall keep our focus of Section-208 as it relates to complaint case.
3. Section-208 reads “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 statements 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 the 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”.
4. A bare look at the provision shows that its basic function is to obligate the Magistrate to furnish, without delay, to the accused, free of cost, a copy of documents. No other or further obligation is there for the Magistrate. After this, the CrPC provides for committal of case via Section-209 which reads as “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, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session”.
5. Provision contained in Section-209 clearly shows that it does not differentiate between a case filed on police report or otherwise. It applies to all cases and the only pre-condition is that on appearance of accused, it must appear to the Magistrate that the offence is exclusively triable by a court of session. Then the provision indicates the next step for the Magistrate which is a mandate as it has used the word ‘shall’. What is the mandate? To commit the case, but only after complying with the requirements of Section-207 or 208, in the present scenario, obviously, Section-208. There is no mandate at all to evaluate the circumstances of the case or hear the accused or to take any evidence at all. He is simply to form an opinion that the offence is exclusively triable by court of session. Once this opinion is formed, Magistrate becomes duty bound to immediately commit the case. Further, Section-209 obligates the Magistrate to send to the court of session the documents & articles which are to be produced in evidence. It does not obligate him to send evidence itself.
6. We have seen that till Section-209, the CrPC does not provide for any mandate to the Magistrate to record any evidence. We may now see if further provisions provides so or not. Once committed, the case reaches the court of session for trial and provisions for such trial are provided in Chapter-XVIII of CrPC. Section-225 is starting provision which reads “Trial to be conducted by Public Prosecutor.- In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor”.
6.1. The provision contained in Section-225 does not differentiate between summons cases, warrant cases, complaint cases or police cases. It simply contemplates that if any trial has to take place before a court of session, then the prosecution shall be conducted by the public prosecutor.
6.2. Chapter-XIX talks about trial of warrant cases but it is specific on the point that the trial under that chapter is to be conducted by a Magistrate. Similarly, Chapter-XX talks about trial of summons cases and it is specific on the point that the trial under that chapter is to be conducted by a Magistrate. However, the CrPC has divided the offences only into warrant cases and summons cases. There is no classification called sessions cases. But in terms of Section-26, a court of session can try any offence irrespective of whether it is a warrant case or a summons case.
6.3. Section-226 provides for initiation of proceedings and the same reads as “When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused”.
6.4. Provision contained in Section-226 indicates that on appearance of accused before the court of session, the public prosecutor has to describe the case and also disclose as to on what evidence he proposes to establish the guilt of accused. Reading the word ‘evidence’ one may tend (though mistakenly) to argue that the evidence is required to be in conformity with the description given in Evidence Act and therefore, there must be some evidence recorded by the court. One may use this reasoning to support that before committing a complaint case to the court of session, the Magistrate is mandated to record evidence.
6.5. Unfortunately, such an interpretation is not a viable option. Reason is obvious. Section-226 does not differentiate between a trial initiated on a complaint or on a police charge-sheet. Naturally, in the case of police charge-sheet there cannot be any question of availability of any recorded evidence in strict sense and as such, the interpretation given to the word ‘evidence’ in Section-226 cannot be adopted at all.
6.6 It becomes further clear when we read Section-227 & 228 of CrPC which are provisions related to discharge or framing of charge. Section-227 reads “If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”. Provision contained in Section-227 clearly indicates that the court of session has to consider the record of the case and documents. It nowhere uses the word evidence. Section-228 reads “Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained”. As is indicative, Section-228 also contemplates the consideration as aforesaid i.e. what is mentioned in Section-227.
6.7. A combined reading of Section-226, 227 & 228 goes to show that the words ‘evidence’ appearing in Section-226 does not indicate towards any recorded evidence of a court. It simply indicates available material on which the public prosecutor wants to rely to establish the guilt of the accused. This provision cannot be used to support a proposition that before committing a complaint case to the court of session, the Magistrate has to record pre-charge evidence.
7. Now we can proceed further into the provisions of CrPC. We will find that Section-244 talks about recording of evidence in complaint cases. It reads as “ Evidence for prosecution.- (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing”.
7.1. Section-244 falls in Chapter-XIX of the CrPC which is titled as ‘Trial of warrant cases by Magistrates’. This chapter has two parts, Part-A concerns the trial of cases instituted upon police report and Part-B concerns with trial of other cases, commonly known as complaint cases. Part-A and Part-B both have sub-headings to clarify the nature of cases but the main heading of entire chapter clearly shows that the trial must be by the Magistrate. Unless therefore, a Magistrate is trying a case, provisions contained in Chapter-XIX will not come into play and as such, Section-244 shall have no application for an offence triable exclusively by session court.
7.2. Section-244 envisages that on appearance of accused, the Magistrate shall proceed to hear the prosecution and take all evidence which may be produced in support of the prosecution. As is all known that since the evidence would be recorded in the presence of the accused, he will have a right to cross examine the witness produced by the prosecution i.e. the complainant. If we assume that before committing a complaint case to the court of session, the Magistrate has to record pre-charge evidence under Section-244, a duality or dichotomy will be the evident result. For clarity, we need to look into Section-231(1). It reads as “Evidence for prosecution.—(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution”.
7.3. Clearly, in a trial before a court of session, the court has to take all evidence which may be produced in support of the prosecution. If we apply Section-244 even to a case to be tried before the court of session, the complainant has to produce all evidence twice and all the witnesses have to undergo a cross examination twice. This will naturally be an absurdity and intention thereof cannot be imputed to the legislative wisdom.
8. The issue can be looked into from another angle. It is not as if the provision contained in Section-209 is the only way for committing a case to the court of session. Section-323 also envisages committal of case and it reads as “Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.- If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVIII shall apply to the commitment so made”.
8.1. Provision contained in Section-323 applies to any stage before signing of the judgment with only one precondition that it must appears to the Magistrate that the offence ought to be tried by a court of session. He may form such an opinion either during the inquiry or during the trial. Now, during the stage of inquiry, there may be situations where evidence in proper sense might not have been recorded (we know that except the trial, almost everything comes under the scope of inquiry), but Section-323 does not say that such case cannot be committed. Meaning thereby that irrespective of whether there is evidence or not, the case can be committed by the Magistrate and the court of session thereafter has to proceed under the Chapter-XVIII. In such type of situations, there would be no scope for recording a pre-charge evidence under Section-244 CrPC.
8.2. A division bench of MP High Court was dealing with the issue of constitutional validity of Section-323 in Raju @ Rohitashva Dubey vs Union of India 2001 (5) MPHCT 410. While upholding the vires of provision, the bench observed “The provision of Section 323 Cr.P.C. does not adversely affect the right of speedy trial, but, it goes to the very root of the trial where the case should be tried. If a case is not triable or ought not to be tried by Magistrate and during the course of enquiry he comes to such a conclusion, he obviously refers the case to the Competent Court as offence cannot be allowed to go unpunished, is also underlining principle of public policy under Section 323 Cr.P.C. The power of a Magistrate under Section 323 Cr.P.C. is in addition to his power under Section 209 of the Code to commit cases exclusively triable by the Court of Sessions to that Court. The provisions contained in Section 244 Cr.P.C. cannot take away the powers vested in the Magistrate under Section 323 to commit the case to the Court of Sessions at any stage of the proceedings before signing the judgment provided the case is one which ought to be tried by the Court of Sessions. Merely because a case has been instituted otherwise then on a police report, cannot take away the power vested in Magistrate under Section 323 Cr.P.C. to commit the case to the Court of Sessions at any stage of the proceedings. Whether that course should have been adopted in the instant case?”.
8.3. The aforesaid decision of MP High Court was upheld by the Supreme Court in Raju @ Rohitashva Dubey vs Union of India SLP(Crl.) 718/2001 dated 26.02.2001 by observing “We do not find any infirmity with the decision of the High Court. The provisions of Article 323 of the Criminal Procedure Code cannot be said to be ultra vires. The Special Leave Petition is dismissed”.
9. One might argue that if no pre-charge evidence is recorded by the Magistrate, there will be no material available before the court of session for framing of charge in a complaint case. Generally we find that a police charge-sheet is largely based upon statements under Section-161 & 164 and some expert opinion such as medical examination, scientific examination, technical examination etc. Such a charge-sheet is directly committed to the court of sessions and such material is treated sufficient for consideration on charge. In a complaint case, a Magistrate records statement of complainant and witnesses on oath and also inquire into the matter by allowing evidence to be produced under Section-202 in case of sessions triable offences. The question is: why such statement recorded on oath and the evidence recorded under Section-202 cannot be treated at the same footing as the material brought by police in the charge-sheet? Be it noted that statement before police is without oath. We know that like Section-207 for police charge-sheet, a Magistrate has to supply copies of all available documents to the accused under Section-208 if offence is sessions triable.
9.1. Delhi High Court in Nanak Chand And Ors. vs Vinod Kumar Jain 79 (1999) DLT 205 has observed “Thus the material which is before the Magistrate disclosing sufficient ground for issuing process to the accused and also for committing the case for trial to the Court of Sessions, will be the material available to the Court of Session to proceed further under Sections 227/228 of the Code. The question of his holding an inquiry like a Magistrate under Section 244 does not arise…. The petitioners have not taken the plea that there was no sufficient material before the Magistrate for exercising the power first under Section 204 and then under Section 323 of the Code. And that will be the material to be considered by the Learned A.S.J. to proceed further under Section 227 or 228 of the Code. The Learned A.S.J. thus was entitled to and justified in proceeding further on the basis of such material”.
9.2. Supreme Court in Rosy vs State of Kerala (2000) 2 SCC 230 has commented “If a case instituted on a 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 is 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 witness to the core allegation) and such a case is committed to the Court of Session, its inevitable consequence would be that the Sessions Judge has to axe down the case at the stage of Section 226 itself as the Public Prosecutor would then be helpless to state "by what evidence he proposes to prove the guilt of the accused". If the offence is of a serious nature or is of public importance the consequence then would be a miscarriage of justice”.
9.3. From the above, it is clear that in a complaint case committed to the court of session, the material for consideration on charge or discharge is the one which was recorded for summoning the accused. None of these judgments even remotely suggested that there should be an evidence duly cross examined by the accused and that only such evidence can form the basis of charge/discharge before the court of session.
10. We may see the situation from a different angle. We may take an example. In a hypothetical world, a hypothetical Magistrate finds that though he summoned a person for an offence which is punishable upto 2 years but the accused ought to be tried in his opinion by a court of session. He forms such an opinion and wants to commit the case. Naturally, being a summons case, the Magistrate would not have recorded any pre-charge evidence before giving notice of accusation to the accused. Even, no proper evidence would have been recorded completing the opportunity of cross examination. However, we know that Section-323 empowers the Magistrate to commit the case at any time, the only pre-condition being that he is of the opinion that the offence ought to be tried by the court of session.
10.1 When the case reaches the court of session, there will certainly be no evidence available before the court. Can we say that such a committal would be illegal or that without availability of any evidence, the court of session will not be able to frame a charge? Certainly Not. Section-323 clearly indicates that once the case is committed, the provisions of Chpater-XVIII will become applicable. Seemingly, none of the provisions of Chapter-XVIII has been excluded for a case committed under Section-323.
10.2. How then can we say that only because the offence pertains to a warrant case, Magistrate cannot commit the same without recording pre-charge evidence? Or that for such cases, court of session will be handicapped in framing of charge.
11. We may now look into certain decisions on the committal proceedings. Delhi High Court in Nanak Chand And Ors. vs Vinod Kumar Jain 79 (1999) DLT 205 has held “Now the question is how the learned A.S.J. should proceed with the complaint case which is not triable by the Court of Sessions but by a Magistrate, after its committal to him?. In a warrant case triable by the Magistrate the procedure is provided under Chapter XIX of the Code, the A.S.J. while trying such case will not be trying the case as a Magistrate but as a Court of Sessions and for that purpose he has to act under the procedure prescribed under Chapter XVIII of the Code. And this is also so explicitly provided under Section 323 of the Code. Provisions of Chapter XIX of the Code in themselves are not applicable for trial before the Court of Sessions….. Section 209 of the Code provides for commitment of a Police case to the Court of Sessions when the offence is triable exclusively by it. In such case the Magistrate is not required to hold inquiry as contemplated under Section 244 of the Code. After a case is committed the Court of Sessions has to proceed in accordance with the procedure prescribed under Chapter XVIII and while taking cognizance the Court of Sessions has not to record any evidence. It has to follow the procedure prescribed under Sections 226, 227 and 228 of the Code on the basis of report of the police and the documents submitted therewith and after hearing the parties. Section 323 of the Code gives power to a Magistrate in given circumstances to commit a case, not necessarily based on police report or triable by the Court of Sessions to be tried together with another counter case arising out of the same occurrence already committed to him. The Magistrate necessarily has to be satisfied before taking cognizance of the case and before committing the case that there is sufficient material to proceed against the accused….. Thus the material which is before the Magistrate disclosing sufficient ground for issuing process to the accused and also for committing the case for trial to the Court of Sessions, will be the material available to the Court of Session to proceed further under Sections 227/228 of the Code. The question of his holding an inquiry like a Magistrate under Section 244 does not arise….. The petitioners have not taken the plea that there was no sufficient material before the Magistrate for exercising the power first under Section 204 and then under Section 323 of the Code. And that will be the material to be considered by the Learned A.S.J. to proceed further under Section 227 or 228 of the Code. The Learned A.S.J. thus was entitled to and justified in proceeding further on the basis of such material”.
11.1. Supreme Court in Shivjee Singh vs Nagendra Tiwary (2010) 7 SCC 578 observed “Section 209 speaks of commitment of case to the Court of Sessions when offence is triable exclusively by it. This section casts a duty on the Magistrate to commit the case to the Court of Sessions after complying with the provisions of Section 208. Once the case is committed, the trial is to be conducted by the Court of Sessions in accordance with the provisions contained in Chapter XVIII…. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2)….. In the result, the appeal is allowed and the impugned order is set aside. Since the matter is more than 12 years old, we direct the concerned Magistrate to pass appropriate order in terms of Section 209 within one month from the date of receipt/production of copy of this order”.
11.2. Supreme Court in Kewal Krishan vs Suraj Bhan AIR 1980 SC 1780 observed “A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Session……. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the magistrate, is now evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report”.
11.3 Delhi High Court in Ashok Chawla vs CBI dated 08.08.2019 has made some very relevant observation as “It is an added argument of the petitioners that since the case was eventually committed to the court of sessions, taking of cognizance on the complaint without the inquiry under sections 200 and 202 Cr.P.C. renders the order of committal to the court of sessions bad particularly in absence of any pre-charge evidence having been adduced in the inquiry leading to the committal order……. As is clear from bare reading of section 209 Cr.P.C., the scrutiny of the case for such purposes as of committal is carried out at the threshold, immediately after the accused has appeared, pursuant to the process (under section 204 Cr.P.C.) and after compliance has been made with the statutory obligation of supply to him of copies of the police report and other documents (under sections 207 or 208 Cr.P.C.). The test is as to whether the offence for which the accused has been summoned is “triable exclusively by the court of session”. On the other hand, the enabling power to commit the case to Court of session is conferred on the magistrate, also by section 323 Cr.P.C., the touchstone being its opinion that the case pending inquiry or trial before it is one which “ought to be tried by the court of sessions”. For completion, it may be added that the provision contained in section 323 Cr.P.C. is generally invoked by the courts of magistrate to make over a case to the court of session for clubbing of cross-cases, which “ought‖ to be tried together; for example in situations where case of one side may involve offence triable exclusively by the court of sessions while the case of the opposite side may be ordinarily triable by the court of magistrate…… Be that as it may, under the general provision of section 209 Cr.P.C., there is no obligation on the part of the magistrate to hold precommittal inquiry in the sense of recording evidence of the witnesses. On the other hand, in situations covered by section 323 Cr.P.C., where the magistrate commits the case to the court of sessions, because it “ought to be tried” by the said court, it may be at the stage of “trial” or “inquiry” anterior to the trial. If a trial has commenced before the Magistrate, the possibility of some evidence having come on record exists. But, if the trial has not so commenced and the stage is still of some “inquiry” – for example, consideration of the case for framing of charge – there would have been no occasion for formal evidence to be recorded by the committal court. The fact, however, remains that the provision contained in section 323 Cr.P.C. also casts no obligation on the magistrate to record evidence before the case is committed to the court of sessions. In the old Cr.P.C. (Code of Criminal Procedure, 1898) there used to be a stage for recording of evidence by a committal magistrate. The said procedure had been abolished long ago and does not survive…… The above position of law is sufficient to reject the other contention of the petitioners that an illegality was committed by the CMM in the present case by committing the case to the court of sessions without recording evidence”.
11.4. In Sanjay Gandhi vs Union of India (1978) 2 SCC 39, while dealing with scope of committal in police cases, Supreme Court observed “Secondly, it is not open to the committal court to launch on a process of satisfy itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in re-moulding s. 207-A (old Code) into its present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully if interpretatively we hold that a dress rehearsal of a trial before the Magistrate is in order. In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session”.
11.5. Dealing with a different fact situation, a three judges bench of Supreme Court had an occasion to comment on committal proceedings in new Code. It in the case titled as Rattiram vs State of M. P. AIR 2012 SC 1485 observed “To appreciate the said submission, it is apposite to refer to Section 207 of the 1973 Code which lays down for furnishing of certain documents to the accused free of cost. Section 209(a) clearly stipulates that providing of the documents as per Section 207 or Section 208 is the only condition precedent for commitment. It is noteworthy that after the words, namely, “it appears to the Magistrate”, the words that follow are “that the offence is triable exclusively by the Court of Session”. The limited jurisdiction conferred on the magistrate is only to verify the nature of the offence. It is also worth noting that thereafter, a mandate is cast that he “shall commit”. Evidently, there is a sea of difference in the proceeding for commitment to the Court of Session under the old Code and under the existing Code. There is nothing in Section 209 of the Code to even remotely suggest that any of the protections as provided under the old Code has been telescoped to the existing one”.
12. The three judges bench aforesaid shown that Magistrate’s role in committal proceeding was curtailed in new CrPC and for this, the bench also relied upon the 41st Report of the Law Commission on which basis the new code came into picture. There is hardly any reason not to take support from the same report of Law Commission in respect of committal Proceedings regarding cases instated on complaint.
12.1. Law Commission in its 41st Report suggested “As regards the small number of sessions cases that may be instituted on complaint, it would obviously be convenient if they were also brought before a Magistrate in the first instance; but we do not consider it necessary to retain the elaborate provisions contained in sections 208 to 220 which lay down the procedure for committing such cases to the Court of Session. The object of this procedure is to get all prosecution witnesses examined by the Magistrate in the presence of the accused in order that the accused may have a full idea of the case which is brought against him. We propose that in such cases it will be sufficient if the Magistrate taking cognizance of the offence on complaint holds an inquiry under section 202 and examines the complainant and all his witnesses on oath, but not in the presence of the accused. If on the basis of such sworn statements he finds that there is "sufficient ground for proceeding" he should issue process to the accused as provided in section 204. He should then grant to the accused copies of the statements of all persons examined by the Magistrate and other material on which the prosecution relies in order that the accused may get adequate information about the charge against him and prepare for his defence.' The combined effect of these two provisions will be to place a person accused of a grave ofence by a private complainant in a somewhat better position than one charged with a similar offence on the basis of a police investigation. In the former case, a preliminary inquiry by a Magistrate into the truth of the complaint is made mandatory and takes the place of an investigation by the police. The accused gets copies of the statements of all prosecution witnesses recorded by the Magistrate in the former case and the statements recorded by the police under section 161(3) in the latter case. With these safeguards which appear to us to be sufficient, we consider that committal proceedings could be dispensed with for complaint cases also”.
12.2. Pertinently, in the Old CrPC, Chapter-18 provided for elaborate provisions contained in sections 208 to 220 which lay down the procedure for committing such cases to the Court of Session. The Law Commission in the changed scenario of committal proceedings recommended to abolish the entire Chapter-18 from the earlier Code. This clearly shows that the procedure available earlier for recording evidence was to be abolished. Now, if we try to read that concept of pre-charge evidence available under Section-244 of the new Code should apply before committing a case to the session court, we will be rendering the entire efforts of Law Commission and the Parliament nugatory.
12.3. It may be noted that even when detailed committal procedure for complaint cases (Chapter-18) was in the old Code, Section-252 for recording pre-charge evidence in complaint cases triable before Magistrate was also there in the old Code. If evidence was to be recorded by Magistrate as a pre-charge evidence even in session triable cases, there was no necessity to enact both the provisions in the old Code. Retention of pre-charge evidence procedure for cases triable by Magistrate and abolition of committal proceeding in complaint cases clearly shows the intention of legislature that they were different procedure and were intended to be applied in different scenario.
13. However, there has been a divergence which basically is the foundation of dilemma indicated in the first paragraph of this paper. Delhi High Court in Dhano vs State 2009 (1) JCC 145 passed a judgment without referring to the entire scheme of CrPC and history of omission of committal proceeding and held “After the petitioners put in appearance on receipt of summons in the court of learned Metropolitan Magistrate, the learned Magistrate committed the case for trial to the Sessions court as offence under Section 308 IPC is triable by the court of Sessions only….. On committal of the case, learned ASJ asked the complainant to produce evidence before charge and he proceeded with the recording of pre-charge evidence of the complainant. The power of and the procedure adopted by the learned ASJ in proceeding with the recording of pre-charge evidence is under challenge before this court in the present revision petition….. Under Section 244 Cr.P.C. it is the Magistrate who has the power to record pre-charge evidence after summoning of the accused persons in a warrant trial case and while doing so he should also allow cross examination of the witnesses to be conducted on behalf of the accused. It is only on analysis of the evidence recorded before charge that the Magistrate can take cognizance of an offence if it is so made out from the evidence…… After summoning the Petitioner for offences under Section 308/323/506/34 IPC the Magistrate committed an error in committing the case for trial to the Sessions Court instead of proceeding with the recording of precharge evidence and giving an opportunity to the Petitioner to cross examine the witnesses of the complainant. Without following the procedure as laid down under Section 244 Cr.P.C. and without coming to a proper conclusion after holding inquiry, if an offence under Section 308 IPC was made out, he committed the case to the court of Sessions for trial…….. Consequently, the charge framed in pursuance of the said order is also hereby quashed. The learned ASJ is directed to send back the file to the concerned Magistrate for holding an inquiry under Section 244 Cr.P.C. for pre-charge evidence and then after assessment of the evidence decide nature of offence, if any, and the sections covering the said offences are made out. It is only after the assessment of the evidence if the Magistrate feels prima facie offence under Section 308 IPC is made out then he shall commit the case to the court of sessions for trial”.
13.1. Delhi High Court has taken similar view in subsequent orders such as Jagdish vs State dated 13.09.2010, Azad Singh vs State dated 04.08.2015, State vs Suresh Gautam dated 15.05.2019. However, all these orders were apparently based upon Dhano (supra) and therefore do not require a separate discussion.
13.2. We have seen that the base judgment was passed in Dhano vs State which became the foundation for all subsequent orders by the Delhi High Court requiring a pre-charge evidence before committing a complaint case to the court of sessions. This base judgment in Dhano case is in direct conflict with the judgment in Nanak Chand case. Both these judgments were pronounced by single judges of the same court. In such circumstances, we have to see as to which judgment should be followed as a precedent.
13.3. At this stage, we need to note the characteristics of the doctrine of precedent. Supreme Court in Sundeep Kumar Bafna vs State of Maharashtra AIR 2014 SC 1745 has observed as “An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former…….. However, in the case in hand, this avenue could also not have been traversed since Niranjan Singh binds not only Co-equal Benches of the Supreme Court but certainly every Bench of any High Court of India”.
13.4. Ratio of Bafna (supra) was subsequently approved on the issue of binding precedent by a Constitution Bench in National Insurance Co. Ltd vs Pranay Sethi (2017) 16 SCC 680. The Constitution Bench observed as “We say so, as we have already expressed the opinion that the dicta laid down in Reshma Kumari being earlier in point of time would be a binding precedent and not the decision in Rajesh. …… There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of same strength. Though the judgment in Rajesh’s case was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari (supra) but had been guided by Santosh Devi (supra). We have no hesitation that it is not a binding precedent on the co-equal Bench”.
13.5. In Union of India vs Raghubir Singh (1989) 2 SCC 754, the Constitution Bench, speaking through R. S. Pathak, CJ, has held thus:- “We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court”. In Chandra Prakash and Others vs State of U.P. (2003) SCC (L & S) 827, a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh (supra).
13.6 In Punjab Land Development & Reclamation Corporation Ltd. vs Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682, another Constitution Bench, while dealing with the issue of per incuriam, opined as “The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court”. It may also be useful to refer to a passage from A. R. Antulay vs Ramdas Sriniwas Nayak (1984) 2 SCC 500, wherein, Sabyasachi Mukharji, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:- ““Per incuriam” are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong”. Again, in the said decision, at a later stage, the Court observed:- “It is a settled rule that if a decision has been given per incuriam the court can ignore it”.
13.7. A three judges bench of Supreme Court was once faced with an issue of deciding which of the earlier judgments was binding precedent. Three judgments were in question namely Bhooraji, Moly, Vidyadharan. The three judges bench in Rattiram vs State of M. P. AIR 2012 SC 1485 observed and held as “It is seemly to note that the decision in Bhooraji (supra) was possibly not brought to the notice of their Lordships who have decided the cases in Moly (supra) and Vidyadharan……….. Before we advert whether Bhooraji (supra) was correctly decided or Moly (supra) and Vidyadharan (supra) laid down the law appositely, it is appropriate to dwell upon whether Bhooraji (supra) was a binding precedent and, what would be the consequent effect of the later decisions which have been rendered without noticing it…… Thus viewed, the decision in Bhooraji (supra) was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play………. The sequitur of the above discussion is that the decisions rendered in Moly (supra) and Vidyadharan (supra) are certainly per incuriam”.
13.8. In view of the above, the judgment in Nanak Chand has to be followed as a binding precedent in Delhi as it is anterior in time and subsequent judgment in Dhano case did not take note thereof. Apart from this, the judgment in Nanak Chand case is in tune with the statutory provisions and pronouncements of Supreme Court.
14. It is clear that Delhi High Court in Nanak Chand (supra) has clearly held that there is no requirement of recording pre-charge evidence. Apart from this, the Supreme Court in Kewal Kishan (supra) has also stated that Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. Even further, the Supreme Court in Shivjee Singh (supra) clearly directed the concerned Magistrate to pass committal order in terms of Section-209 while holding that all the witnesses were not required to be examined even under Section-202. In such circumstances, it would be difficult to hold that Magistrate should record pre-charge evidence.
15. In view of the discussion aforesaid, it can safely be concluded that the judgment in Dhano (supra) is not a binding precedent and is not only per- incuriam to the earlier judgment in Nanak Chand (supra) but also goes against the statutory provisions. Apart from this, the judgments of Supreme Court and Law Commission Report clearly support an inference that irrespective of nature of the case (whether police case or complaint case), Magistrate has no role like the earlier CrPC to play in the Committal Proceedings and the new CrPC does not empower him to record any evidence as the earlier provisions have been omitted and cast in a new framework. Therefore, when an accused appears before the Magistrate for an offence exclusively triable by court of session, the Magistrate shall provide him the copies of document as required under Section-208 CrPC and then commit the case to the court of session by virtue of the mandate enshrined in Section-209 CrPC even if the case is instituted upon a complaint. The Magistrate is not required to record any pre-charge evidence before committing the case.
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