Sudama Singh Vs Kavindra Narain Singh

N.L. Untwalia, J.@mdashThis case was ref etred by a learned single Judge of this Court f or hearing and disposal by a Division Bench.That''s how it has come before us. The facts which may be stated briefly are these. The opposite party filed a complaint petition against the petitioner on 17.11.70 in the court of the Magistrate, 1st Class, at Chapra, who had the power to take cognizance of cases on that date. On 18.11.70 the said Magistrate Shri R. Sharan took cognizance of the case for offences under Sections 420, 457 and 471 of the Penal Code. On that date he neither examined the complainant upon oath nor did he direct the issuance of any process, but simply transferred the case to the file of Shri S N. Jha, Munsif Magistrate 1st class, Chapra, for disposal. Shri Jha received the case on transfer on 20.11.70 and on the same day ordered issue of summons to the petitioner directing him to appear on 3.12.70. The transferee Magistrate also did not examine the complainant on oath. The petitioner filed the present application on 24.11.70 to get the proceeding or the order quashed. The facts to this extent are not in dispute. I need not state the facts stated by the opposite party in his complaint petition to make out his charge against the petitioner under the various provisions of the Penal Code, as, in view of the order which is ultimately going to be passed in this case, it is not necessary to do so. The said facts are in dispute also. Mr. Krishna Prakash Sinha, Learned Counsel for the petitioner, after submitting his main two points, also contended that no offence had been made out on the facts alleged in the complaint petition and, therefore, the criminal proceeding should be quashed. But in view of the fact that the case has to go back to the transferee Magistrate on remand, we did not proceed to examine those facts and find out for ourselves whether it was a case where the criminal proceeding could be quashed in exercise of the powers of this Court.

2. Learned Counsel for the petitioner, however, on the undisputed facts relating to the procedure of this case so far adopted, submitted the following two points--

(i) That the court had no power to issue any process without examination of the complainant on oath.

(ii) That only the Magistrate taking cognizance of the offence could direct the issue of process, the transferee Magistrate could not do so.

3. In my considered judgment, the first point urged on behalf of the petitioner is well founded and has got to succeed. But since the consequential direction has to be given to the court below and in that event a question will arise--to whom that direction should be given, so the second point also assumed importance and has got to be decided.

4. In Chapter XV of the Code of Criminal Procedure, 1898 hereinafter called the Code, the heading from where Section 190 starts is'' Conditions requisite for initiation of proceedings". Section 190 prescribes the mode of taking cognizances of offences by Magistrates. Any Presidency Magistrate, District Magistrate or Subdivisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence "(a) upon receiving a complaint of facts which constitute such offence". It would be here noticed and it is settled by decisions also that the complaint need not necessarily be in writing although generally it is so. Clause (b) talks about taking of cognizance of any offence by the Magistrate "upon a report in writing of such facts made by any police officer". This report in writing by the police officer, which is commonly known as charge sheet, can be the basis of taking cognizance of any offence by the Magistrate. Then comes Section 192 under which the Subdivisional Magistrate may transfer any case of which he has taken cognizance for enquiry or trial to any Magistrate subordinate to him. Section 192 does not say that the order of transfer can be made after an order for issuing process has been made. The order of transfer can be made immediately after an order taking cognizance has been made u/s 190 of the Code. Chapter XVI consists of 4 sections only, namely, Sections 200 to 203. The heading of this chapter is "of complaints to Magistrates". And, then comes Chapter XVII wherein occur only 2 sections, namely, Sections 204 and 205, the heading of this Chapter being "Of the Commencement of Proceedings before Magistrates." The first point urged on behalf of the petitioner has got to be answered on reading of the relevant provisions of Sections 200 and 202. The said reading would be pertinent for answering the second point also. The main part of Section 200 says--

"A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate......."

There are certain provisos attached to the main part. I will quote provisos (a)and(c)-

"(a) when, the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case u/s 192."

"(c) when the case has been transferred u/s 192 and the Magistrate so transferring it has already examined "the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant."

It would thus be seen that it is the duty of the Magistrate taking cognizance of an offence on complaint to at once examine the complainant upon oath. Examination of the complainant upon oath is not an integral part of the process of taking cognizance. Taking of cognizance of any offence u/s 190 does not depend upon examination of the complainant upon oath. But surely a Magistrate taking cognizance is required to examine the complainant upon oath as soon as he has taken cognizance. Proviso (a) makes an exception. When the complaint is made in writing, not orally, then the Magistrate taking cognizance is not under an obligation to examine the complainant upon oath if he transfers the case u/s 192. If he does not transfer the case and proceeds to take further action or issue process himself then the exception provided in proviso (a) is not attracted and he cannot dispense with the examination of the complainant upon oath. I did not detain myself to examine that line of cases which have taken the view that the trial is not vitiated or conviction is not bad for failure of the Magistrate taking cognizance to examine the complainant upon oath. They stand on a different footing. But when the case comes to this Court just at a point of time when this obligation cast upon the Magistrate has been violated, it has got to be set right immediately. It has been said by a Full Bench of this Court in (1) of Bharat Kishore Lal Singh Deo Vs. Judhistir Modak, --

"Every High Court in India has held that the omission to examine the complainant en oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the petitioner has by reason of the irregularity been put to any substantial injustice."

The irregularity if it has not caused any substantial injustice will be ignored if the person aggrieved comes to this Court at a late stage. But it is not expedient to allow it to remain when the irregularity committed is immediately brought to the notice of this Court.

5. In my opinion, proviso (c) is not very happily worded. If a restricted and literal meaning is given to this proviso to say that if the transferring Magistrate has already examined the complainant, the transferee Magistrate is not bound to re-examine him then it would be noticed that there was no necessity of such a provision. Even without this provision, no duty was cast on the transferee Magistrate to re-examine the complainant if the transferring Magistrate had already done it. The purpose and the underlying meaning of proviso (c), to my mind, is that if the transferring Magistrate has not already examined the complainant then the transferee Magistrate is bound to examine him. This interpretation finds support from the proviso to Sub section (1) of Section 202 of the Code. Under Sub-section (1) the Magistrate taking cognizance or the transferee Magistrate may postpone the issue of process for compelling the attendance of the person complained against and direct enquiry or investigation to be made in the matter. But the proviso says that save where the complaint has been made by a court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200. It is therefore, plain that the Magistrate taking cognizance or the one to whom the case is transferred cannot direct enquiry u/s 202 without examining the complainant on oath nor can he issue process without such examination.

6. In this case, as I have said above, it is not disputed that the Magistrate who took cognizance of the offence did not examine the complainant on oath nor did Shri Jha, the transferee Magistrate, do so. The issuing of the process, therefore without the examination of the complainant on oath was in violation of the law prescribed in Section 200 of the Code. The violation may not vitiate the trial, but it cannot be allowed to remain when it comes to the notice of this Court at the appropriate time as in this case.

7. That leads me to the consideration of the second question whether the transferring Magistrate can be directed to examine the complainant on oath and to issue process if he thinks it fit to do so.

8. Reading the provisions engrafted in Clause (a) of Sub-section (1) of Section 190, Sub-section (1) of Section 192 and the provisions in Sections 200, 202 and 203, one thing is clear that in a complaint case the Magistrate taking cognizance of the offence can transfer the case without issuing any process. The transferee Magistrate on receipt of the case can order enquiry u/s 202 of the Code or may not do so. In either event he is empowered to dismiss the complainant u/s 203 of the Code. Does it then stand to reason that if after applying his judicial mind he has the power to dismiss a complaint, he has no power to take further steps in the proceeding when he comes to the conclusion that the case is a fit one where the enquiry under Chapter XVIII of the Code of the trial should proceed? The answer is : such a power is there. It has been so called out by the Supreme Court from Section 202 itself in the case of (2) Rajindra Nath Mahato Vs. T. Ganguly, Dy. Superintendent and Another, .

9. In the case aforesaid cognizance was taken by a Magistrate named Shri S. K. Ganguly and process was issued by another Magistrate Shri Sarkar. It was found that Shri Sarkar was not a Magistrate who had either taken cognizance or to whom the case had been transferred. While discussing the power conferring sections on the Magistrate to issue process it has been said at page 471 (column 1)--

"The relevant section which confers power on the Magistrate to whom the case has been transferred to issue process is Section 202 of the Code of Criminal Procedure. The language of Section 202 of the Code of Criminal Procedure is that the Magistrate may, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against. Therefore, the power of the Magistrate to issue process u/s 202 of the Code of Criminal Procedure is not limited by the terms of Section 204 of the Code of Criminal Procedure to issue process."

On this authoritative pronouncement of the law by the Supreme Court, it is manifest that the power of the transferee Magistrate to issue process in a complaint case u/s 202 of the Code is not circumscribed by the terms of Section 204. That being so, even if the literal interpretation of the language used in Section 204 does not permit a transferee Magistrate to issue process in a case cognizance of which has been taken upon a police report, it is plain that such a limitation cannot be put upon the power of a transferee Magistrate in a complaint case.

10. The Full Bench decision of this Court in (3) Krishnadeo Prasad Vs. Mt. Budhni, , of course, was not a case in relation to the power of a transferee Magistrate. The question there was whether the Magistrate who had issued the process was a successor Magistrate and so had the power to issue the process or not? It was held that he was a successor Magistrate and had such power. Had the Supreme Court case been not there, it would have been difficult for me sitting in Division Bench to say that the view expressed by the Full Bench as to the power of a transferee Magistrate to issue process is obiter or wrong. But I am relieved of that difficulty because of the Supreme Court decision referred to above. I have no doubt in my mind that the view or observation of Sahai J. in the Full Bench decision of this Court in relation to the power of a transferee Magistrate to issue process must be deemed to have been overruled by the decision of the Supreme Court in Rajendra Nath Mahato''s case. Question No. 2 formulated in the order of reference while sending the case to a larger Bench was--

"Whether an order u/s 203 or 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint u/s 200?"

The answer given to this question was that the successor Magistrate--either temporary or permanent--can also pass an order u/s 203 or 204. To that extent, the law laid down by the Full Bench does not create any difficulty. On the other hand if I may say so with respect, it is the correct law and I find myself in full agreement with it. But before arriving at the said conclusion, it has been said in paragraph 4--

"It is clear, therefore, that a Magistrate to whom a complaint has been made or a Magistrate to whom the case has been transferred, may dismiss the complaint, and it is only the Magistrate who has taken cognizance of an offence on the basis of a complaint who can issue process. No other Magistrate can pass an order u/s 203 or 204 unless he can be held to be either permanently or temporarily a successor-in-office of the Magistrate before whom the complaint was filed or who took cognizance of an offence on the complaint."

This view of the law has been understood by two learned Judges of this Court, both in their separate judgment, sitting singly to mean that a transferee Magistrate cannot issue process. The decision of B. D. Singh, J. given on 27th August, 1971 is reported in (4) Basudeo Hisaria V. State of Bihar 1972 B. L. J. R. 166 and the decision of J. Narain, J. given on 7th September, 1971 is reported in (5) Raghubans Rai V. Nishan Singh alias Ram Nishan Singh 1972 B. L. R. 151. The principle enunciated in paragraph 4 of the judgment of the Full Bench is quite obviously capable of the meaning that the transferee Magistrate has no power to issue process. But this view of the law, even if enunciated by the Full Bench, must be deemed to have been overruled by the Supreme Court. Hence it is manifest that the two decisions aforesaid are no longer good law.

11. In (6) Jai Ram Singh and others V. Ramdeo Das (Criminal Revision 142 of 1972 decided on 9.5.72), however Madan Mohan Prasad, J. has taken the view even on reference to the Supreme Court decision in Rajendra Nath Mahto''s case that the transferee court has no power to issue process. The case under consideration before his Lordship was a complaint case. Reference was made to the two decisions of the two learned Judges and the Full Bench decision in Krishnadeo Prasad Vs. Mt. Budhni, . After referring to them, as it seems, with approval, the learned Judge referred to the Supreme Court decision and then said

"In that case their Lordships held that there were two course (courses) open to a Magistrate first u/s 204 of the Code for the Magistrate taking cognizance to issue processes or secondly u/s 208 of the Code for a Magistrate to whom a case has been transferred to ''issue process'' ".

After extracting the proposition of law from the Supreme Court decision that u/s 202 of the Code even a Magistrate to whom a case had been transferred can issue process, the learned Judge proceeded to say--

"It is quite obvious from the aforesaid decisions that the Magistrate taking cognizance alone can issue processes u/s 204 (1) of the Code. Of course an exception has to be made in a case where the subsequent Magistrate issuing process is the successor-in-office of the Magistrate taking cognizance."

I venture to say and say so with utmost respect that the ratio of the Supreme Court decision was not fully applied and incorporated while deducing the proposition of law not only from that decision but from the - decisions of this Court referred to above. On a careful examination of the matter, I have unhesitatingly come to the conclusion that in view of the Supreme Court decision laying down the law that the transferee Magistrate in a complaint case has power to issue process u/s 202 of the Code, the enunciation of a contrary view based upon the earlier decisions of this Court is not correct and must be overruled.

12. One more recent decision of this Court given by G. N. Prasad, J. in (7) Krishna Bahadur V. Parmanand Gorwara and others (Criminal) Miscellaneous 1151 of 1970 and analogous cases decided on 24.5.72) must be noticed. In this case, the view propounded by the learned Judge is that the transferee Magistrate has inherent power to issue process. Support to this view has been given from the observations of S. K. Das, J. as he then was, in the case of (8) Delu Gour V. Noneswar Mahato 48 CLJ 347. I would also quote a few words from the passage extracted by G. N. Prasad, J., in his judgment from the decision of Das, J. and they are "the latter" meaning thereby transferee Magistrate, "has the same authority to deal with the case as regards the issuing of the process and other matters connected with the enquiry or trial, as is vested in the superior Magistrate from whom he receives the case on transfer." To the same effect are the observations of a learned single Judge of the Calcutta High Court in (9) Hafizar Rahman Vs. Aminal Hoque, referred in the judgment of G. N. Prasad, J. The Full Bench decision of this Court was distinguished by the learned Judge. To some extent I find myself in respectful agreement with the View expressed by G. N. Prasad J. but with some reservation. Perhaps, it will not be quite correct to say, and I say so with respect, that the transferee Magistrate has inherent power to issue process. It may be possible to say that when a case is transferred to the transferee Magistrate for enquiry or trial then in the power to hold enquiry or trial is inherent the power to issue process because apart from any other provision of law, on the well established principles of natural justice, no enquiry or trial can be held without summoning or giving notice to the accused. Such a view, I think, will admit of no difference between a complaint case and a police case. It may well be that in a proper and appropriate case either on the lines of the reasoning indicated by G.N. Prasad, J. or on some other basis it may be held that even in a police case, meaning thereby a case in which cognizance is taken upon a police report, the transferee court has got power to issue process. But then in this case neither it is necessary to examine the possibility of taking such a view nor do I venture to express it because of the observations of the Supreme Court in Paragraph 8 of the judgment in (2) Rajendra Nath Mahato''s case, which perhaps militate against this view. It would, therefore, be advisable that in a police case the Magistrate taking cognizance issues process and thereafter transfers it to the transferee Magistrate for enquiry or trial. One fundamental difference may be noticed here between a complaint case and a police case and that is this. Even after taking cognizance in a complaint case the complaint is liable to be dismissed u/s 203. Such a situation, however, does not arise in a police case because there is no question of dismissing the case in exercise of a power like the one engrafted in Section 203, If cognizance has been taken upon a police report then the enquiry or trial proceeds, the accused may be discharged or on conclusion of the trial acquitted. But there is no stage in a police case equivalent to the one which is there in a complaint case u/s 203 of the Code. For the reasons stated above, I allow this application, set aside the order dated 20.11.70 passed by Shri S. N. Jha, the transferee Magistrate, remit back the case to the court below and direct it to examine the complainant on oath. After such examination, the learned Magistrate should apply his mind again to find out whether this is a fit case where process should issue or an enquiry u/s 202 should be ordered or whether the complaint should be dismissed u/s 203 of the Code. Since the case is going back to the Magistrate, this direction has been given, but it must be understood to be expressing any opinion of ours in regard to the merits of the case one way or the other,

Akbar Hussain, J.

I agree.