ORDER
R.K. Dash, J.
1. Petitioners, ten in number, have filed this petition under Section 482 of the Code of Criminal Procedure, 1973, (for short the Code) challenging the order of the learned Additional Chief Judicial Magistrate, Jaunpur taking cognizance of the offence under Sections 147/148/149/323/307/427/504/506 I.P.C. in a complaint case No. 557 of 1990.
2. Since question of law is only involved, it is not necessary to delineate the factual aspects of the case. The question raised is whether in a case arising out of complaint triable by the court of session, it is incumbent upon the Magistrate to examine all witnesses named in the complaint petition in the enquiry held under Section 202 of the Code. In the case on hand, there were in total sixteen witnesses mentioned in the complaint petition, out of whom complainant respondent No. 2 examined twelve during enquiry. Complaining that there was non-compliance of the statutory provision as envisaged in the proviso to the said section and thus the order of taking cognizance of the offence was bad in law, the petitioner moved the learned Sessions Judge in revision which did not yield the desired result. As second revision was not maintainable at the instance of the petitioners in view of the bar created by Section 397(3) of the Code, they filed the present case to quash the revisional order in exercise of inherent power. To answer the question, it is desirable to refer to the relevant provisions of the Code laying down the procedure to deal with the cases arising out of a complaint.
3. Under Section 200, it is imperative for the Magistrate taking cognizance of the offence on a complaint to examine upon oath the complainant and the witnesses present, if any. He, however, need not follow such procedure if complaint is made by a public servant acting or purporting to act in discharge of his official duty or in cases where complaint is made by the court. The next relevant provision is Section 202, which comes into play when the Magistrate does not trust upon the version of the complainant and his witnesses and decides that he would not be justified in issuing process without holding enquiry to ascertain whether the allegations are prima facie true or not. If he takes such a decision and postpones issue of process, then he shall either make enquiry himself or direct investigation by the police or by any other person. At the stage of enquiry what the Magistrate is required to see whether there is evidence in support of the allegation to proceed against the accused and not whether evidence is sufficient to warrant conviction. So, if evidence adduced during enquiry prima facie makes out an offence, the Magistrate without passing a detailed order shall issue process to the accused under Section 204. On the other hand, if the result of the enquiry does not show sufficient ground for proceeding with the case, he shall briefly record reasons to that effect and dismiss the complaint.
4. I shall now turn to the proviso to sub-sec. (2) to Section 202 of the Code which came to the statute book by amendment Act No.2 of 1974. The said proviso obligates the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath if the offence complained of is exclusively triable by the Court of Session. Judicial opinion of various High Courts is not unanimous on the question whether the complainant shall examine all the witnesses cited in the complaint petition during enquiry or it will be sufficient compliance of law if he examines those witnesses on whom he would rely upon in support his case during trial.
5. The reasons for having the said proviso are two fold. Firstly, it enables the accused to have an overall picture of the case and to know the witnesses and the nature of evidence they would depose in order that he will have sufficient opportunity to prepare his defence to effectively cross-examine them. Secondly, the evidence, both oral and documentary, brought on record by the complainant gives a detail picture of the incident to help the court to decide whether or not there is sufficient ground for proceeding against the accused. In a sessions triable case arising out of a complaint the magistrate should not make casual approach and summon a person to face the charge. He must be prima facie satisfied that an offence was committed and for arriving at such conclusion, there shall be some materials before him. It may be reiterated, at that stage Magistrate is to see whether there is evidence to support the allegation made in the complaint and not whether the same is sufficient for conviction.
6. The question of necessity to examine the witnesses as provided in the said proviso may be viewed from another angle. Upon the case being committed to the Court of Session, the trial is conducted by the public prosecutor and not the counsel of the complainant. As provided under Section 226 of the Code, it is the prosecutor who shall open the case by describing the charge brought against the accused and stating by what evidence he proposes to prove the quilt of the accused. So, if no enquiry is held by the Magistrate, there will be no other material available with the prosecutor except the complaint petition and the statement of the complainant and in that case he will be helpless to tell the Court the nature of evidence to be led in proof of the accusation and in such situation there being no sufficient material for proceeding against the accused, the court may discharge him.
7. Scope and ambit of Section 202 in its entirety came to be interpreted by a two Judge Bench of the Apex in the case of Rosy v. State of Kerala, 2000 SCC (Cri) 379 : (AIR 2000 SC 637). The facts of the case were that the Excise Inspector after holding enquiry filed a complaint under relevant provision of the Kerala Abkari Act. Since the offences were exclusively trible by the Court of Session, the learned Magistrate committed the case to the Court of Session, Thrissur. The learned trial Judge framed the charge and proceeded with the hearing and on conclusion of the trial recorded the statement of the accused. Thereafter, four witnesses were examined by the defence and it was in course of argument that the counsel for the defence raised the question that mandatory requirement of the proviso of Section 202(2) of the Code having not been complied with prejudice was caused to the accused. Feeling difficult to decide the further course to be adopted, the learned trial Judge made reference to the High Court. Simultaneously, the accused persons also filed revision against the order of reference. The High Court upon hearing both sides held that proviso of Section 202(2) being mandatory, non examination of the witnesses would result in substantial failure of justice and hence the order of committal was vitiated. Consequently, the Magistrate was directed to conduct fresh enquiry in terms of the said proviso. The said order was challenged before the Apex Court. Hon’ble M.B. Shah, J. held that it is only if the Magistrate before taking cognizance of the offence decides to hold the enquiry, the proviso to Sub-section (2) of Section 202 would come into operation and if the offence is tried exclusively by the Court of Session, then the Magistrate himself has to hold the enquiry. The view expressed by His Lordship in paragraph 10 of the judgment is extracted hereunder in extenso :–
“It is only if the Magistrate decides to hold the inquiry the proviso to Sub-section (2) of Section 202 would come into operation. If the offence is triable exclusively by the Court of Session, the Magistrate himself has to hold the inquiry and no direction for investigation by the police shall then be made. Inquiry can be held for recording evidence on oath and if he thinks fit, Sub-section (2) of Section 202 gives discretion to the Magistrate to record the evidence of the witnesses on oath. To this discretionary power, the proviso carves out an exception. It provides that for the offence triable exclusively by the Court of Session, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. Then the next stage after holding inquiry is passing of appropriate order of either dismissal of the complaint or issue of process. That is provided under Sections 203 and 204 of the Code. Hence, on receipt of the complaint, the Magistrate by following the procedure prescribed under Section 200 may issue process against the accused or dismiss the complaint. Section 203 specifically provides that after considering the statement on oath, if any, of the complainant and witnesses and the result of the inquiry or investigation, if any, under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. For dismissal of complaint, he is required to briefly record his reasons for so doing. In other cases, he has to issue process i.e. either summons or warrants as the case may be as provided under Section 204. However, no summons or warrant is to be issued against the accused until a list of the prosecution witnesses has been filed. Therefore, the question of complying with the provision to Sub-section (2) of Section 202 would arise only in cases where the Magistrate before taking cognizance of the case decides to hold the inquiry and secondly in such inquiry by him, if he decides to take evidence of witnesses on oath. But the object and purpose of holding inquiry or investigation under Section 202 is to find out whether there is sufficient ground for proceeding against the accused or not and that holding of inquiry or investigation is not an indispensable course before issue of process against the accused or dismissal of complaint. It is an enabling provision to form an opinion as to whether or not process should be issued and to remove from his mind any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant’s evidence on oath.
8. From the above what it appears is that His Lordship was of the view that holding of an inquiry in a case arising out of a complaint for the offence triable by the Court of Session, is not a must. It is only when the Magistrate before taking cognizance decides to hold an enquiry, then only requirement of proviso to Section 202(2) asking the complainant to produce all his witnesses during enquiry and to examine them on oath shall have to be complied with.
9. Hon’ble K.T. Thomas, J. in his separate judgment formulated the issue whether it is incumbent on the Magistrate to conduct enquiry as enjoined in the proviso to Section 202(2) when the offence sought to be taken cognizance of by the Magistrate is exclusively triable by the Court of Session or can he dispense with such enquiry. Having made reference to the various provisions of the Code and recommendations of the Law Commission held that ‘the proviso incorporated in Sub-section (2) of Section 202 is not merely to confer a discretion to the Magistrate but a compelling duty on him to perform in such cases.’ However, both the Hon’ble Judges were of the unanimous view that mere non-complinace of the said proviso would not vitiate the proceedings unless the accused shows that it has caused prejudice to him and there has been failure of justice.
10. The importance of expression ‘his witness’ appearing in the proviso to Sub-section (2) of Section 202 of the Code cannot be lost sight of. From the said expression, it appears that the complainant shall examine those witnesses on whose evidence he would rely upon to prove his case during trial. So, if he gives up some witnesses and does not examine them for the reasons that they have either been gained over by the accused or that their attendance cannot be procured without any amount of delay or expense or they are formal witnesses, it cannot be said there has been infraction of the mandatory requirement of law as envisaged in the aforesaid proviso.
11. In the case on hand, as stated earlier, there were sixteen witnesses in all named in the complaint petition of whom respondent complainant examined twelve. No argument was advanced by the counsel appearing for the petitioners as to how non-examination of the remaining four witnesses caused any prejudice to the petitioners. I am, therefore, of the view that there was sufficient compliance of the requirement of the proviso to Sub-section (2) of Section 202 of the Code and therefore, I would hold that the order of the learned Magistrate taking cognizance of the offence cannot be Interfered with.
12. In the result, criminal misc. application fails and the same is dismissed.