Frank Dalton Larkins And Etc. vs State (Delhi Administration)
1984 Latest Caselaw 335 Del

ORDER

1. The facts giving rise to the above mentioned revision petitions succinctly are that four persons Maj. Gen. (Retd.) F. D. Larkins (petitioner in Cr. R. 78/84), his brother Air Vice-Marshal (Retd.) K. H. Larkins, Lt. Col. (Retd.) Jasbir Singh (petitioner in Cr. Revision No. 90/84) and Jaspal Singh Gill alias Jassi Gill have been committed by Additional Chief Metropolitan Magistrate, New Delhi, vide order dt. 16th April, 1984 to stand trial on charges under Ss. 3, 5, 6 and 9 of the Official Secrets Act. 1923 (for short the Act) read with S. 120-B of the IPC on the ground that the offences are exclusively friable by the Court of Session. Earlier cognizance was taken by the learned Additional Chief Metropolitan Magistrate on 4th February, 1984 on a charge-sheet being presented by the police who had investigated into the case and the complaint instituted by the Deputy Commissioner of Police, Special Branch, Delhi, which was attached to the police report. The petitioners have called in question the legality and validity of the cognizance of the offences taken by the learned Additional Chief Metropolitan Magistrate as also the order of commitment, mentioned above, on various grounds.

2. On the basis of a complaint lodged by Air Vice-Marshal S. Raghavandran. Air Headquarters, New Delhi, on 9th November, 1983 alleging that Air Vice-Marshal (Retd.) K. H. Larkins had committed an offence of espionage during the period 21st March, 1983 to 5th April, 1983, a case under Ss. 3, 5, & 9 of the Act was registered at Police Station Tughlak Road on 10th November, 1983. The investigation of the case was conducted by Shri R. S. Khurana, Inspector, Special Staff, under the supervision of the Deputy Commissioner of Police, Special Branch-II, New Delhi. On completion of investigation, a police report under S. 173 of the Cri PC (for short the Code) which was accompanied by a complaint signed by the Deputy Commissioner of Police, Special Branch, Delhi, was filed in court and cognizance of the offence was taken by the learned Additional Chief Metropolitan Magistrate who made the following order :

"This challan under Ss. 3, 5, 6 & 8 of the O.S. Act & S. 120-B, IPC has been presented today. Heard. Perused the record. I take cognizance of the offence. The case be registered.

The accused are stated to be in judicial custody up to 6th February, 1984. Put up on 6th February, 1984 for appearance of the accused and for supplying copies to them."

3. Consequently, as stated above, the accused were committed to the Court of Session for trial vide order dt. 16th April, 1984.

4. The learned counsel for the petitioners have assailed both the aforesaid orders on the following grounds :

(1) The case is not exclusively friable by the Court of Session in view of the provisions contained in sub-secs. (1) & (2) of S. 13 of the Act.

2. The court could not take cognizance of the offences under the Act except on complaint made by the appropriate Govt. or under the authority from the appropriate Govt. as envisaged in sub-section (3) of S. 13. So, the filing of the police report and the cognizance taken on its basis is bad in law.

3. Cognizance ought to have been taken on the complaint, if any, made by the Deputy Commissioner of Police in accordance with the provisions contained in S. 200 of the Code, but that has not been done.

4. The court ought to have examined all the prosecution witnesses if the court had found the case to be exclusively friable by the Court of Session, as contemplated by the proviso to sub-section (2) of S. 202 of the Code but commitment was made without complying with the said provision of law and as such it is liable to be quashed.

5. Sub-sections (1) and (2) of S. 13 of the Act on which reliance is placed read as under :

"(1) No Court other than that of a Magistrate of the first class specially empowered in this behalf by the appropriate Government, which is inferior to that a District or Presidency Magistrate shall try any offence under this Act.

(2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court notwithstanding that it is not a case exclusively friable by that Court."

6. The argument advanced on behalf of the petitioners precisely is that all the offences in the instant case are friable by a first class Magistrate specially empowered in this behalf as envisaged under sub-section (1) (supra) and it is only if an accused claims to be tried by the Court of Session before the charge is framed that the Magistrate has to commit the case to the Court of Session for trial even though it is not otherwise exclusively friable by that Court. However, such an interpretation of the provision of law is not warranted on the plain language thereof. All that sub-section (1) lays down is that a court inferior to that of a District or Presidency Magistrate, except a Magistrate of the first class specially empowered in this behalf by the appropriate Government, shall not try any offence under the Act. It is thus a disabling provision so far as inferior courts are concerned but it nowhere lays down that a court of District or Presidency Magistrate or for that matter court of the Magistrate of first class specially empowered in this behalf will be entitled to try an offence even though it is exclusively friable by the Court of Session under the Code. Similarly, sub-section (2) simply enables an accused to be tried by the Court of Session, a superior court, notwithstanding that the offence is not exclusively friable by that Court. This conclusion may be more clearly enunciated by reference to the nature of offences with which we are concerned in the instant case. Clause (c) of S. 3(1) of the Act deals with offences of spying and prescribes punishment of imprisonment for a term which may extend to 14 years where the offence is committed in relation to any work of defense, arsenal, naval, military or air force establishment etc. or in relation to the naval, military or air force affairs of the Government. The case against the petitioners is in relation to military and air force affairs of the Government and as such they would be prima facie, if convicted, liable to be sentenced to imprisonment for 14 years. Part I of the first Schedule to the Code contains the classification of offences under the Indian Penal Code while Part II deals with classification of offences against other laws. Its perusal would show that if an offence is punishable with death, imprisonment for life or imprisonment for more than seven years it is friable exclusively by the Court of Session. It is also cognizable and non-bailable. On the other hand, if an offence is punishable with imprisonment for three years and upward and not more than seven years, it will be friable by a Magistrate of the first class. Thus, according to the said classification an offence under S. 3(1)(c) of the Act will be clearly friable by the Court of Session alone and no other court.

7. Section 4 deals with cognizable offences friable under the IPC and other laws. Its sub-section (1) lays down that all offences under the IPC shall be investigated, enquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, its sub-section (2) provides that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Evidently this sub-section contains a statutory recognition of the principle that a special law creating offences may also create special procedure for dealing with them. In other words, the special law creating any special procedure would not be invalid as being inconsistent with the provisions of the Code. However, there can be no manner of doubt that where an enactment provides a special procedure only for some matters, its provisions must apply in regard to those matters and the provisions of the Code will apply to the matters on which the special law is silent. This position is further amplified by S. 5 of the Code which provides that nothing in the Code shall affect any special law. The said provision embodies the maxim "generalia specialibus non derogant."

8. The question would, therefore, arise whether the provisions contained in sub-secs. (1) & (2) of S. 13 of the Act are in any way inconsistent with or repugnant to the general provisions contained in the Code so as to override the same. As already observed by me, sub-section (1) is only intended to ensure trial of offences by a relatively senior class of a Magistrate but it nowhere lays down that offence under S. 3(1)(c) will be friable by the court of a Magistrate of the first class specially empowered or Presidency Magistrate etc. even though it falls within the category for which sentence may extend to imprisonment for 14 years. It may be pertinent to notice here that S. 3(1)(c) of the Act also comprises offences which are punishable with sentence of imprisonment up to three years only. In other words, the offences described in S. 3 comprise two distinct categories, one punishable with imprisonment up to three years and the other punishable with imprisonment up to 14 years. The allegations contained in the complaint instituted against the petitioners prima facie make out an offence falling under the latter category and as such it will be friable exclusively by the Court of Session. Even attempt to commit or abetment to commit an offence under the Act is punishable with the same punishment and the accused is liable to be proceeded against in the same manner as if he had committed such an offence by virtue of S. 9 of the Act. Indeed, sub-section (2) of S. 13 in terms recognises two distinct categories of offences under the Act itself, one friable exclusively by the Court of Session and the other friable by the court of a Magistrate of the first class etc. as would be clear from the words "notwithstanding that it is not a case exclusively friable by that Court" appearing therein. These words, to my mind, clinch the issue in favor of the view that all the offences under the Act are not friable by a court of the Magistrate specified in sub-section (1) of S. 13. I am fortified in the view I have taken indirectly if not directly by order dt. 12th November, 1981 of a learned Judge of this Court in Cr. M.(M) No. 448/81, Tikka Ram Kashyap v. State (Delhi Administration), dismissing in liming the revision petition which was directed against an order of an Additional Sessions Judge holding that an offence falling under clause (c) of S. 3(1) is exclusively friable by the Court of Session. Hence, this contention of the petitioners' counsel is devoid of any merit.

Ground No. 2 :

9. Adverting to S. 13(2) of the Act, the learned counsel for the petitioners have canvassed with considerable force that in view of the categorical prohibition contained therein, cognizance of the offences under the Act could be taken only upon a complaint made by order of or under authority from the appropriate Government which in this case would mean Central Government or some officer empowered by the appropriate Government in this behalf. However, as would appear from order dt. 4th February, 1984 which is under challenge the cognizance was taken by the Additional Chief Metropolitan Magistrate on police report submitted under S. 173 of the Code rather than the complaint. In view of the explicit bar contained in S. 13(3) it is not disputed by the learned counsel for the State that cognizance of the offences under the Act can be taken only on a complaint as envisaged in S. 13(3) of the Act and not otherwise. However, according to him, a complaint by a duly authorised officer was filed along with the police challan and it was duly taken notice of by the learned Additional Chief Metropolitan Magistrate while taking cognizance of the offences and as such there is no discernible lapse on the part of the court below. Admittedly, a complaint dt. 27th January, 1984 purporting to have been instituted by Shri Ramakrishanan, Deputy Commissioner of Police, Special Branch, Delhi, was filed along with the police challan and there is a specific reference to this fact in the list of documents filed with the police challan dt. 27th January, 1984. Further the original sanction accorded by the Central Government on 25th January, 1984 to prosecute the petitioners etc. as contemplated in sub-section (3) of S. 13 of the Act was also filed along with the complaint. The said sanction authorises Shri S. Ramakrishanan, Deputy Commissioner of Police, Special Branch, to lodge a complaint in respect of the offences in question. Still the gravamen of the grievance of the petitioners in that the cognizance of the offences was taken on police challan and not on the complaint filed by the authorised person along with the challan as would appear from a bare reading of the order dt. 4th February, 1984. The precise argument put forth is that the complainant did not present the complaint personally to the court and only the Special Public Prosecutor who was representing the State appeared when the police challan was presented to the court. Further, the opening sentence of the order dt. 4th February, 1984 refers to the challan and not the complaint and there is not even a whisper about the complaint in the said order. In this context my attention has also been invited to the fact that a prayer was made in the complaint for exemption of the complaint from personal attendance on every date of hearing but no such order was made by the learned Magistrate. Thus, relying upon Narayandas Bhagwandas Madhavdas v. State of West Bengal, , it has been urged that it is only when a Magistrate applies his mind for the purpose of proceeding under S. 200 and subsequent Sections of Chap. XV of the Code or under S. 204 of Chap. XVI of the Code that it can be positively said that he had applied his mind judicially to the complaint and his taken cognizance of the offence complained of.

10. It is now well settled that the expression "taking cognizance" merely means judicial application of the mind by the Magistrate to the facts mentioned in the complaint with a view to taking further action. No doubt, in the case of R. R. Chari v. State of Uttar Pradesh, and again in Narayandas Bhagwandas Madhavdas (supra) the Supreme Court approved the following observations of Das Gupta, J., in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, .

"What is "taking cognizance" has not been defined in the Cri.P.C. and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any magistrate has taken cognizance of any offence under S. 190(1)(a), Cri.P.C. he must not only have applied his mind to the contents of the petition, but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under S. 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence."

11. However, the Supreme Court made it abundantly clear that it is impossible to attempt to define what is meant by "taking cognizance" and as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case. Similarly, in Tula Ram v. Kishore Singh, , it was observed that :

"Thus what S. 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations."

12. Applying this criterion it may well be presumed that the learned Additional Chief Metropolitan Magistrate must have perused the complaint too at the time of taking cognizance of the offences. This inference may well be drawn from his observation. "Heard. Perused the recorded". Needless to say that the substance of the allegations contained in the police report under S. 173 of the Code which, of course, was superfluous in the instant case having regard to the explicit provision contained in S. 13(3) of the Act, and that of the complaint was identical. Moreover, it does not appeal to reason that the Special Public Prosecutor would not have invited the attention of the learned Magistrate to the sanction accorded by the Central Government for prosecution of the accused persons which was a condition precedent to the taking of cognizance by the court. Looked at the matter from this angle, I am not persuaded to hold that there was no application of judicial mind by the learned Additional Chief Metropolitan Magistrate on the contents of the complaint even though she has not expressly alluded to the complaint in the aforesaid order.

ROUND NO. 3 :

13. The next contention of the petitioners is that provisions of S. 200 of the Code which lays down the procedure to be followed by a Magistrate taking cognizance of an offence on a complaint have not been complied with inasmuch as it was incumbent on the Magistrate to examine the complainant on oath and the witnesses present, if any, before issuing the process. However, the learned Magistrate did not follow the said procedure and as such the order made by her for issue of process which could only be made under S. 204 of the Code was bad in law. This argument again is devoid of any merit as it evidently overlooks the first proviso to S. 200 which lays down clearly that in cases of complaints by a court or by a public servant acting or purporting to act in the discharge of his official duties, examination of the complainant and his witnesses is not at all necessary. Obviously the statute has extended this privilege to public servants in the expectation that a complaint would be filed by such public servants with due care and caution i.e. after fully ascertaining the complicity of the accused in the commission of the crime disclosed in the complaint. Of course, the Magistrate is not absolved from his duty to puruse the complaint and then make up his mind whether to summon the accused or not. As already observed, there is sufficient ground to warrant an inference that the learned Additional Chief Metropolitan Magistrate did apply her mind in the instant case before taking cognizance of the offences.

14. Faced with this predicament, the learned counsel for the petitioners have come forth with a rather ingenious argument that the Deputy Commissioner of Police, Special Branch, who had instituted the complaint in the instant case, cannot be said to be a public servant acting or purporting to act in the discharge of his official duties. Mr. Harjinder Singh, counsel for Jasbir Singh-petitioner, has canvassed vigorously that the expression "Deputy Commissioner of Police" connotes only a designation and he is not a juristic person and as such he was not competent to institute this complaint. Secondly, he has urged that the authorisation by the Central Government to lodge a complaint was in favor of a specific individual Shri Ramakrishnan, who also happened to be Deputy Commissioner of Police, Special Branch, Delhi and not in favor of any public servant as such. So, it was no part of the duty of the Deputy Commissioner of Police to lodge a complaint as contemplated by Clause (a) of the first proviso to S. 200. This argument, to say the least, has to be stated merely to be rejected. The very fact that clause (a) of the proviso envisages complaint by a public servant is enough to dismiss the contention of the learned counsel for the petitioner that the complainant must be a juristic person. It is true that the expression "Deputy Commissioner of Police" may be just a designation but there can be no manner of doubt that Deputy Commissioner of Police, Special Branch, Delhi, is a particular officer who has been assigned the duties of that office and as such he will be deemed to be public servant as defined in S. 21, cls. (7), (8) and even (12)(a). The words "who holds any office" appearing in clause (7) are very significant to note. If cls. (7) and (8) are read together they will clearly cover the case of a police officer. It is then to be seen whether he was acting or purporting to act in the discharge of his official duties when he filed the complaint in this case. Reliance has been placed by the learned counsel for the petitioners on K. Krishna Warrier v. T. R. Velunny, , in which a complaint was instituted by a District Magistrate who had been appointed Commissioner of Inquiry under Commissions of Inquiry Act, 1952, Ramashray Singh v. Dr. Anand Mohan, 1977 Cri LJ 1024 (Pat), in which a complaint was lodged by a civil surgeon under Ss. 353, 500 and 506(2) of the I.P.C. and Kalu Munchi v. State of Assam, AIR 1965 Assam 29 : (1965 (1) Cri LJ 424), in which a complaint filed by a Magistrate was found to be not covered by the provisions of S. 195 of the Code, in support of their contention that it was no part of the duty of the Deputy Commissioner of Police to file the complaint. In other words, he should have been enjoined by law or nature of his duties to make the complaint but that was not so. On an examination of these authorities I do not think that they are of any assistance to the petitioners in this behalf, rather they are clearly distinguishable on facts. As observed earlier, the investigation was conducted by the Special Branch of Delhi Police under the overall supervision of the Deputy Commissioner of Police, Special Branch. It is thus obvious that he was concerned with the investigation of the case at all its stages. Evidently, it was on that account that he was specifically authorised to institute the complaint also. Under S. 13(3) of the Act, any officer empowered by the appropriate Government is entitled to make the complaint and if he does so, there can be no shadow of doubt about his acting or at least purporting to act in the discharge of his official duties. Needles to say that the relationship of command and obedience which existed between the Central Govt. and the Deputy Commissioner of Police cast an obligation upon the latter to obey the command and file the complaint. Thus, the act of the Deputy Commissioner of Police in filing the complaint is integrally connected with the duties attaching to his office as head of the Special Branch of Delhi Police. Surely a very restricted and narrow interpretation on the words "acting or purporting to act in the discharge of his official duties" cannot be placed in the sense that the law must enjoin a public servant to institute a complaint before he can do so. It is enough that the act of lodging the complaint is connected with or falls within the scope of his general duties. In the instant case, the circumstances adverted to above clearly rendered it obligatory upon him to file the complaint and as such this case will be squarely covered by clause (a) of first proviso to S. 200. I am fortified in this view of the matter by the following observations of the Supreme Court in Mowu v. Superintendent Special Jail, Nowgong, Assam, 1971 Cri LJ (N) 1 :

"When the complaint is in writing by a public officer under the directions of the State Government the magistrate need not examine the complainant."

15. Even assuming for the sake of argument that the instant case does not fall within the purview of clause (a) to the proviso of S. 200, omission to examine the complainant would not vitiate the cognizance of the offences stated in the complaint as it will not constitute a serious legal infirmity or manifest error resulting in miscarriage of justice as to warrant quashing of the order of commitment. Section 460 (S. 529 old) enumerates irregularities which do not vitiate the proceedings. By virtue of clause (e) of the said Section if a Magistrate not empowered by law to take cognizance of an offence under S. 190(1) clause (a) or (b) (new) erroneously but in good faith takes cognizance, the proceedings shall not be set aside merely on the ground of his not being so empowered. If defect of jurisdiction is not enough to vitiate proceedings covered by clause (e) of S. 460, a fortiori it would follow that where a Magistrate is empowered by law and is otherwise competent to take cognizance of an offence, any irregularity in the manner of the exercise of the jurisdiction should not be itself be fatal to the proceedings. Section 461 (S. 530 old) enumerates the irregularities which vitiate proceedings and the one in question certainly does not fall within its ambit. There is abundant authority for the proposition that the failure to examine a complainant before issuing a process is not an irregularity falling under S. 461 (S. 530 old) of the Code. Reference in this context may be made to a Bench decision of Patna High Court in State of Bihar v. Deodar Jha, and Jasman Rai v. Smt. Sonamaya Rai, 1980 Cri LJ 500 (Sikkim High Court). So, the infraction of S. 200, if any, will at best be a mere irregularity curable under S. 465 (S. 537 old) of the Code. On a parity of reasoning failure on the part of the complainant, viz. Deputy Commissioner of Police, Special Branch, to present the complaint personally cannot be termed as an irregularity going to the root of the jurisdiction. Indeed, neither S. 190(1) nor S. 200 of the Code in terms states that the complainant must be presented in by the complainant. Clause (a) of S. 190(1) simply states, "may take cognizance of any offence upon receiving a complaint of facts which constitute such offences". Similarly, S. 200 provides that a Magistrate taking cognizance of an offence of complaint shall examine the complainant on oath. Therefore, it cannot be said that the complainant could not be presented by the Special Prosecutor in the instant case as he was obviously representing the prosecution i.e. complainant who happened to be a public servant. Reference in this context may be made with advantage to Kanhaiyalal Daulatramji, ; State v. S. D. Gupta, 1973 Cri LJ 999 (All) and P. N. Dubey v. State of U.P. 1979 Cri. LJ. NOC 53 (All). In all these cases it has been observed that there is no provision in the Code stating either expressly or impliedly that the complaint must be presented to the Magistrate by the complainant personally. At any rate, as observed earlier, non-presentation of the complaint personally is not a jurisdictional error to cut at the very root of jurisdiction or as to constitute a material irregularity causing failure of justice. Indeed, it is well settled that at the stage of inquiry under Ss. 200 to 204 the accused has no locus standi to appear and take part in the proceedings. Hence, the question of any prejudice to the accused or miscarriage of justice which may vitiate the cognizance of offences by the Magistrate or the order of commitment made pursuant thereto does not arise.

Ground No. 4 :

16. Lastly, the learned counsel for the petitioners have canvassed with great fervour that in view of proviso to sub-section (2) of S. 202 in a complaint case friable exclusively by the Court of Session, it is incumbent upon the Magistrate to call upon the complainant to produce all his witnesses and to examine them on oath. According to them, the proviso is mandatory in nature and it has been apparently inserted because in order to simplify the procedure for cases friable by a Court of Session the legislature has now done away with the pre-committal magisterial inquiry and the holding of trial by the Sessions Court being a serious affair, nobody should be made to undergo the same unless there is tangible material available against him. Reliance in this context has been placed on reported decisions of various High Courts, viz. Paranjothi Udayar v. State, 1975 Mad LJ (Cri) 629 : (1976 Cri LJ 598), Ram Adhar v. State, 1980 All. LJ. 528 Baji v. State of Madh Pra, 1981, Cri. LJ. 1558, Ramchander Rao v. Boina Ramchander, 1980 Cri. LJ. 593 (Andh Pra) and Shyamkant Wamanrao Pawar v. State of Maharashtra, 1980 Cri. LJ. 1388 (Bom). All these authorities lend support to the view that the proviso to S. 202(2) makes it obligatory on the Magistrate in the case of offences friable exclusively by the Court of Session to call upon the complainant to produce all his witnesses and examine them on oath. The reasons given by the various High Courts in support of the said view may be summarised as under :-

(a) In the case of a private complaint, there is generally speaking no prior investigation by the police and as such the statements of witnesses recorded under S. 161 and/or 162 of the Code are not available. Therefore, the legislature in its wisdom has made this wholesome provisions.

(b) A reading of the proviso to clause (2) of S. 202 together with S. 208(1) would clearly show that in a complaint case where the offence disclosed is friable exclusively by the Court of Session the statements of all the witnesses to be produced by the complainant must be recorded and the copies of statements of the witnesses so recorded and the documents relied upon by the prosecution shall be furnished to the accused free of cost. The object of furnishing copies to the accused in cases instituted on a police report is to facilitate the accused to prepare his defense in advance by knowing that the materials by which the prosecution seeks to prove its case against him are. However, in respect of a private complainant where the offences appear to be exclusively friable by the Court of Session the documents mentioned in S. 207 will not be available to the accused as all those documents come into existence during the course of investigation by the police. The scope and object to S. 208 of the Code has, therefore, to be considered in this background.

(c) In a private complaint unless the witnesses are examined as contemplated by proviso to S. 202(2), the accused will not be in a position to point out any contradictions when they give evidence in the Court of Session. The accused can cross-examine the witnesses with regard to their earlier statements in the Court of the Magistrate and point out the contradictions. Therefore, it cannot be said that the accused is not prejudiced at the stage of trial in the Sessions Court by non-examination of all the witnesses under the proviso which is intended to give a fair and reasonable opportunity to the accused to get adequate information about the charge against him and compliance therewith is not a mere formality.

17. A learned Judge of Allahabad High Court in Ram Adhar's case (1980 All LJ 528) (supra) has gone to the extent to saying that :

"It is obvious that the statements of the complainant and other witnesses produced on his behalf are required to be recorded by the Magistrate under the proviso to sub-section (2) of S. 202 so that these statements may be available to the accused for cross-examining them during the trial. It, therefore, follows that no witness can be examined during the trial on behalf of the prosecution in a case exclusively friable by the Court of Session whose statement has not been recorded by the committing Magistrate under the proviso to sub-section (2) of S. 202 and the copy of whose statement has not been furnished to the accused under S. 208 after his appearance in Court. In such a case, the proceedings before the committing Magistrate and the Sessions Court would be illegal."

18. On a careful consideration and examination of both Ss. 200 and 202 of the Code, I am, with great respect, unable to subscribe to the view expressed in the above mentioned authorities. It may be noticed that there is no anatomy of S. 202 in these authorities with a view to determine the interplay of or the impact which different portions of the sections especially sub-section (1) and sub-section (2) thereof may have on each other. Section 202 is reproduced below for ready reference.

"(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 may, if he thinks, fit postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceedings :

Provided that no such direction for investigation shall be made -

(a) where it appears to the Magistrate that the offence complained of is friable exclusively by the Court of Session; or

(b) Where the complaint has not been made by a Court unless the complaint and the witnesses present (if any) have been examined on oath under S. 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :

Provided that if it appears to the Magistrate that the offence complained of if friable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."

19. On a plain reading reading of sub-section (1), especially the words "may, if he thinks fit" it is manifest that it is entirely within the discretion of the Magistrate whether or not an inquiry under this section should be made or an investigation ordered. A combined reading of Ss. 200 to 204 of the Code would show that there is no legal obligation on the part of a Magistrate taking cognizance of an offence to resort to the procedure laid down in S. 202 before dismissing a complaint or issuing process to the accused after taking cognizance of the offence complained of. The Magistrate can after following the procedure laid down in S. 200 straightway dismiss the complainant under S. 203 but if he thinks fit to postpone the issue of process against the accused and to make an inquiry into the case, he has to follow the procedure laid down in S. 202 before he resorts to S. 203. Similarly, he may direct issue of process where after complying with provisions of S. 200 he is of the opinion that cognizance should be taken of the offence as there is "sufficient ground for proceedings", as envisaged in S. 204 of the Code. It is only when he decides to postpone the issue of the process and to hold an inquiry that the provisions of sub-section (2) of S. 202 will be attracted. The first part of the proviso to sub-section (1) forbids the Magistrate to direct an investigation when the offence complained of appears to him to be friable exclusively by the Court of Session. Under sub-section (2) while holding an inquiry, he is entitled to record evidence of witnesses on oath if he thinks fit. However, the proviso to sub-section (2) casts a duty on the Magistrate to call upon the complaint to produce all his witnesses and examine them in oath where it appears to him that the offence complained of is friable exclusively by the Court of Session. The true purpose of the proviso to S. 202(2) of the Code, therefore, seems to be that where the Magistrate postpones the issues of process and decides to hold an inquiry and the case appears to him one exclusively friable by the Court of Session, it will be imperative for him to examine all the witnesses for the complainant on oath.

20. That it is discretionary with a Magistrate to postpone the issue of the process or not and there is no legal bar or impediment in his way to straightway issue the process is well settled. In other words, it is not necessary for the Magistrate in every case to take recourse to S. 202. It is only in case of doubt and hesitancy where a Magistrate is unable to make up his mind to issue the process after complying with procedure laid down in S. 200 that he may adopt the procedure provided in S. 202. The Supreme Court has in a recent decision in A. R. Antulay v. Ramdas Siriniwas Nayak, , enunciated the legal position in relation to the scope of S. 202 of the Code as under :

"Upon a complaint being received and the Court records the vertification, it is open to the Court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by S. 202 or direct investigation as therein contemplated. The power to take cognizance without holding inquiry or directing investigation is implicit in Section 202 when it says that the Magistrate may "if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct investigation to be made by a police officer ....... for the purpose of deciding whether or not there is sufficient ground for proceeding". Therefore, the matter is left to the judicial discretion of the Court whether on examining the complainant and the witnesses if any as contemplated by S. 200 to issue process or to postpone the issue of process. This discretion which the Court enjoys cannot be circumscribed or denied by making it mandatory upon the Court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision."

21. It is thus manifest that it is not at all obligatory on a Magistrate to hold an inquiry before issuing process and he has the power to take cognizance and issue the process without holding inquiry or directing the investigation as envisaged in sub-section (1) of S. 202.

22. It may be pertinent to notice that the proviso in question is pitted against the parent sub-section (2) and not sub-section (1) and as such it can hardly be construed as controlling or fettering the discretion which vests in the Magistrate under sub-section (1). It is a fundamental rule of construction that a proviso must be considered in relation to the principle matter to which it stands as a proviso. As said by Bray, J., in King v. Dibdin, (1910) Probate Division 57(91);

"The words of the proviso are undoubtedly very wide; but, being a proviso, it must be construed with reference to the clause to which it is appended, i.e. the first part of section."

23. Thus, there can be no manner of doubt that the proviso in question is intended to quality sub-section (2) to which it is appended and make it obligatory upon the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath if it appears to him that the offence complained of is friable exclusively by the Court of Session. However, this does not, in any manner, impinge upon the discretion which vests in the Magistrate to postpone the issue of process or not. In this view of the matter, I am fortified by several reported decisions of various High Courts. Indeed, there is sharp divergence of opinion with regard to the interpretation of the proviso to S. 202(2). I have already adverted to one strain of thought and the other strain of thought is to be found in Boya Lakshmanna v. Boyachinna Narasappa, 1976 Cri. LJ. 127; Budaraju Seshagiri Rao v. T. V. Sarma, 1976 Cri. LJ 902 (both these decisions are by single Judges of Andhra Pradesh High Court which were overruled by a Division Bench of that High Court in Ramchander Rao (1980 Cri LJ 593) (supra), P. S. Sulaiman v. Eachara Warrier 1978 Mad LJ (Cri) 630 (a Bench decision of Kerala High Court), Ram Bharos Mahton v. Ram Lachhan Mahton 2nd (1975) 54 Patna 67 (Bench decision of Patna High Court), M. Govindaraja Pillai v. Thangavelu Pillai. 1983 Cri. LJ. 917 (decision by a learned single Judge of Madras High Court who preferred to follow the Bench decision of Kerala High Court as against judgment of single Judge of that very Court in Paranjothi Udayer (1976 Cri LJ 598) (supra) and in re : Extra Assistant & Addl. Sessions Judge, Ahmednagar. 1984 Cri. LJ. 801 (which is again a Bench decision of Bombay High Court on a reference made by Extra Assistant and Additional Sessions Judge, Ahmednagar). On an analytical examination of the provisions contained in Ss. 200 to 204, their Lordships, inter alia, observed that :

"The proviso to S. 202(2) comes into play when the Magistrate postpones the issue of process and holds inquiry."

In Budaraju Seshagiri Rao (supra) Chinnappa Reddy, J. (as his Lordship then was), inter alia, observed that :

"In cases where the offences complained of are friable 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 at examining all his witnesses ................

...................................... ......................................

The accused does not enter the picture at all at that stage. The enquiry by the Magistrate under S. 202 is only for the purpose of enabling him to decide whether or not there is sufficient ground for proceeding.

I am in respectful agreement with these observations.

As for the argument that proviso to S. 202(2) is also intended to give a fair and reasonable opportunity to the accused to get adequate information about the charge against him, to prepare his defense and also to effectively cross-examine the witnesses at the stage of sessions trial with reference to the earlier statements of the witnesses before the Magistrate, suffice it to say that no such consideration need weigh with the Magistrate when he is at the stage of taking cognizance under S. 200 unless, of course, he embarks upon an inquiry under S. 202 of the Code by postponing the issue of the process. It is true that preliminary inquiry by Magistrate in cases exclusively friable by the Court of Session has been dispensed with S. 209 of the Code now provides for commitment of a case to the Court of Session when the offence is friable exclusively by it whether the case is instituted on police report or otherwise i.e. on complainant. It lays down in no uncertain terms that before doing so he must comply with the provisions of S. 207 or 208, as the case may be, of the Code. Section 208 applies to cases instituted otherwise than on police report which in the opinion of the Magistrate involve offences exclusively friable by the Court of Session. It enjoins upon a Magistrate to furnish to the accused, free of cost, a copy of each of the following :

"(i) the statement recorded under S. 200 or S. 202, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under S. 101 or S. 164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely;"

24. On its plain reading it is manifest that copies of the statements recorded under S. 200 or 202 have to be supplied to the accused. Obviously it postulates that the statements of the complainant or the witnesses may have been recorded either under S. 200 or S. 202 or both the sections but it cannot be read as further laying down that the Magistrate must record statements of the complainant and all the witnesses under the aforesaid sections in cases exclusively friable by the Court of Session. The principle underlying this provision is that if an accused is not supplied with copies of the statements recorded by the Magistrate either under S. 200 or under S. 202 or under both of them he will be handicapped in cross-examining the witnesses successfully and effectively so as to disprove the prosecution case. In P. S. Sulaiman (1978 Mad LJ (Cri) 630) (supra) this contention was examined by the Division Bench of Kerala High Court and their Lordships gave the following answer :

"Now, the provision in S. 208(i) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements under S. 200 or S. 202. Use of the word 'or' there is important. It is used there disjunctively and not conjunctivaly. When so read it produces an intelligible result. It then means that the accused should be furnished with copies of the statements of persons recorded under S. 200 on S. 202 as the case may be. S. 208(i) does not contemplate an accused being furnished with copies of statements recorded under S. 202 when the commitment is made based on the statements taken under S. 200 alone."

25. That was a case of private complaint. It was, therefore, imperative for the Magistrate to have examined the complaint under S. 200 and also his witnesses, if any, present at the time of taking cognizance of the complaint. The instant is a case of complaint by public servant and as observed earlier it was not at all necessary by the Magistrate to examine the complaint. Therefore, an argument may well be advanced that the very purpose of the provisions contained in S. 208 is defeated because there has been no examination of the complainant or of the witnesses either under S. 200 or under S. 202. However, this argument though specious does not stand close scrutiny as the answer to the same is to be found in clause (ii) of S. 208 which requires furnishing of copies of the statements and confessions, if any, recorded under S. 161 or S. 164. Since S. 208 deals specifically with cases instituted otherwise than on a police report it may be legitimately concluded that the purpose of effective cross-examination would be served by furnishing copies of the statements recorded under S. 161 or S. 164 of the Code. In other words, there is no bar to such statements being made available to the accused for the purpose of preparing his defense and effectively cross examining the witnesses. Obviously, there is neither any basis nor any justification for the view that statements recorded by the police under S. 161 during the course of investigation are not admissible for any purpose in a case instituted on a complaint. Moreover, copies of all the documents produced before the Magistrate on which prosecution proposes to rely have to be supplied to the accused under clause (iii). So even if statements under S. 200 or S. 202 have not been recorded, clause (ii) and clause (iii) of S. 208 take sufficient care of the interest of the accused in the matter of defense. Reference in this context may be made with advantage to Superintendent and Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick, in which the Supreme Court while dealing with the ambit and scope of S. 14 of the Act observed that the said Section does not in any way affect or override the provisions of the Code relating to inquiries or trials held therein and does not in any way deprive the valuable right of the accused to get copies of statements recorded by the Magistrate of statements of witnesses recorded by the police or the documents obtained by the police during the investigation. Indeed, such a conclusion clearly flows from the language of S. 208 cls. (ii) & (iii). Thus, the contention that non-examination of the complainant and the witnesses under S. 200 or S. 202 is likely to materially prejudice the accused in the preparation of their defense is devoid of any merit.

26. To sum up, therefore, the issue of the process by the Magistrate in the instant case without examining the complainant or the prosecution witnesses under S. 200 or S. 202 and consequent commitment of the case to the Court of Session for trial is not tainted with any legal infirmity or material irregularity. In other words, the commitment, in the instant case, is quite valid and proper and does not warrant any interference by this Court. As for the merits of the case, suffice it to remark that it is for the Sessions Judge to consider after hearing the public prosecutor, as contemplated in S. 226 of the Code, whether or not there is sufficient ground for proceeding and then pass order under S. 227 discharging the accused or framing the charge against the accused as envisaged in S. 228 of the Code. The Sessions Judge, while considering the question of framing the charge against or discharging the accused under S. 227, has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. It is not open to this Court to consider at this stage the sufficiency or otherwise of the material on record for this purpose.

27. The upshot of the whole discussion, therefore, is that both the revision petitions must fail as being devoid of any merit. They are accordingly dismissed.

28. Petitions dismissed.