REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION   

CRIMINAL APPEAL NO.1158   OF 2010 (Arising out of SLP (Crl.) No.1416 of 2009)

 Shivjee Singh ……Appellant

Versus

Nagendra Tiwary and others ……Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Leave granted.

2. Whether examination of all witnesses cited in the complaint is  sine  

qua non for taking cognizance by a Magistrate in a case exclusively triable  

by the Court of Sessions is the question which arises for consideration in this  

appeal  filed  against  order  dated  18.4.2007  passed  by  the  learned  Single

Judge of Patna High Court in Criminal Miscellaneous Petition No.1778 of  

2007 whereby he remitted the case to Chief Judicial Magistrate, Saran with  

the direction to make further inquiry and pass appropriate order in the light  

of proviso to Section 202(2) of the Code of Criminal Procedure (Cr.P.C.).

3. The appellant’s son, Ajay Kumar Singh is said to have been killed by  

respondent  Nos.1  to  4  on  1/2.1.1997.   The  appellant  lodged  First  

Information  Report  on  the  same  day  at  Police  Station,  Isuapur.   After  

conducting investigation, the police submitted final form on 3.9.1998 with  

the finding that they had no clue about the culprits.  Thereupon, the appellant  

filed  a  protest  petition  accusing  the  police  of  not  conducting  the  

investigation properly due to political pressure and prayed that the accused  

persons  be  summoned  and  punished.   By  an  order  dated  3.9.2002,  the  

learned Judicial Magistrate accepted the final form submitted by the police  

but,  at  the same time, directed that the protest  petition be registered as a  

separate complaint.  He also directed the complainant (appellant herein) to  

produce his witnesses.  The appellant examined himself and two out of four  

witnesses  cited  in  the  protest  petition-cum-complaint  but  gave  up  the  

remaining two witnesses because he thought that they had been won over by  

the  accused.   After  considering  the  statements  of  the  appellant  and  two  

witnesses,  Chief  Judicial  Magistrate,  Saran  passed  an  order  dated  

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13.12.2006 whereby he took cognizance against respondent Nos.1 to 4 for  

offence under Section 302 read with Section 120B Indian Penal Code and  

Section  27 of  the  Arms Act  and directed  issue  of  non bailable  warrants  

against them.  

4. The respondents challenged the order of the Chief Judicial Magistrate  

by filing a petition under Section 482 Cr.P.C.  The learned Single Judge  

accepted their contention that the Chief Judicial Magistrate could not have  

taken cognizance against them without requiring the appellant to examine all  

the  witnesses  and remitted the matter  to the  concerned court  for passing  

appropriate  order  after  making  further  inquiry  in  the  light  of  proviso  to  

Section 202(2) Cr.P.C.   

5. Shri Gaurav Agrawal,  learned counsel for the appellant argued that  

proviso to Section 202(2) Cr.P.C. is not mandatory in character and the High  

Court committed serious error by remitting the matter to the Chief Judicial  

Magistrate  for  further  inquiry  only  on  the  ground  that  all  the  witnesses  

named by the appellant had not been examined.  Learned counsel further  

argued that non-examination of two witnesses cited in the protest petition-

cum-complaint did not preclude the Chief Judicial Magistrate from taking  

cognizance against  respondent  Nos.1 to 4 because he felt  satisfied that  a  

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prima facie case was made out against them.  In support of his arguments,  

learned counsel relied upon the judgment of this Court in Rosy v. State of  

Kerala (2000)  2  SCC  230.  Shri  Gopal  Singh,  learned  counsel  for  the  

respondents argued that proviso to Section 202(2) Cr.P.C. is mandatory and  

the Chief Judicial Magistrate committed a serious error in taking cognizance  

against  respondent  Nos.1  to  4  and  issuing  non-bailable  warrants  against  

them  without  insisting  on  the  examination  of  remaining  two  witnesses  

named in the complaint.  He relied upon the observations made by Thomas,  

J.  in  Rosy v.  State  of  Kerala  (supra)  and the judgment  in  Birendra K.  

Singh v. State of Bihar (2000) 8 SCC 498 in support of his submission that  

proviso to Section 202(2) Cr.P.C. is mandatory.

6. We  have  considered  the  respective  submissions.   By  its  very  

nomenclature,  Cr.P.C.  is  a  compendium  of  law  relating  to  criminal  

procedure.  The provisions contained therein are required to be interpreted  

keeping  in  view the well  recognized rule  of  construction that  procedural  

prescriptions  are  meant  for  doing  substantial  justice.   If  violation  of  the  

procedural  provision  does  not  result  in  denial  of  fair  hearing  or  causes  

prejudice  to  the  parties,  the  same  has  to  be  treated  as  directory  

notwithstanding  the  use  of  word  `shall’.    Chapter  XIV  of  Cr.P.C.  

enumerates  conditions  for  initiation  of  proceedings.   Under  Section  190,  

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which  forms  part  of  the  scheme  of  that  chapter,  a  Magistrate  can  take  

cognizance of any offence either on receiving a complaint of facts which  

constitute  an offence  or  a  police  report  of  such  facts  or  upon receipt  of  

information from any person other than a police officer or upon his own  

knowledge,  that  such an offence has been committed.   Chapters XV and  

XVI  contain  various  procedural  provisions  which  are  required  to  be  

followed  by  the  Magistrate  for  taking  cognizance,  issuing  of  

process/summons,  dismissal  of  the  complaint,  supply  of  copies  of  

documents and statements to the accused and commitment of case to the  

Court  of  Sessions  when the  offence  is  triable  exclusively  by  that  Court.  

Sections 200, 202, 203, 204, 207, 208 and 209 Cr.P.C. which form part of  

these chapters and which have bearing on the question raised in this appeal  

read as under:

“200.  Examination  of  complainant.– A  Magistrate  taking  cognizance of an offence on complaint shall examine upon oath  the  complainant  and  the  witnesses  present,  if  any,  and  the  substance of such examination shall be reduced to writing and  shall be signed by the complainant and the witnesses, and also  by the Magistrate:

Provided that, when the complaint is made in writing, the  Magistrate  need  not  examine  the  complainant  and  the  witnesses–

(a) if a public servant acting or purporting to act in the  discharge of his official duties or a Court has made  the complaint; or

(b) if the Magistrate makes over the case for inquiry or  trial to another Magistrate under section 192:

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Provided further  that  if  the  Magistrate  makes  over  the  case to another Magistrate under section 192 after examining  the complainant  and the witnesses, the latter Magistrate need  not re-examine them.

202. Postponement of issue of process.–(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, and shall, in a case  where  the  accused  is  residing  at  a  place  beyond  the  area  in  which he exercises his jurisdiction 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 proceeding:

Provided that no such direction for investigation shall be  made–   

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

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

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

Provided  that  if  it  appears  to  the  Magistrate  that  the  offence  complained of  is  triable  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.

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203. Dismissal  of  complaint.–  If,  after  considering  the  statements  on  oath  (if  any)  of  the  complainant  and  of  the  witnesses and the result of the inquiry or investigation (if any)  under Section 202, the Magistrate is of opinion that there is no  sufficient  ground  for  proceeding,  he  shall  dismiss  the  complaint, and in every such case he shall record his reasons  for so doing.

204. Issue of process.– (1) If in the opinion of a Magistrate  taking cognizance of an offence there is sufficient ground for  proceeding, and the case appears to be–

(a) a  summons-case,  he  shall  issue  his  summons  for  the  attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks  fit,  a  summons,  for  causing the  accused to  be brought  or  to  appear at a certain time before such Magistrate or (if he has no  jurisdiction  himself)  some  other  Magistrates  having  jurisdiction.

(2) No  summons  or  warrant  shall  be  issued  against  the  accused  under  sub-section  (1)  until  a  list  of  the  prosecution  witnesses has been filed.

(3) In  a  proceeding  instituted  upon  a  complaint  made  in  writing, every summons or warrant issued under sub-section (1)  shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until  the  fees  are  paid  and,  if  such  fees  are  not  paid  within  a  reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing  in  this  section  shall  be  deemed  to  affect  the  provisions of section 87.

207. Supply to the accused of copy of police report and other  documents.  –  In  any  case  where  the  proceeding  has  been  instituted on a police report, the Magistrate shall without delay  furnish  to  the  accused,  free  of  cost,  a  copy  of  each  of  the  following:-

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(i)   the police report;

(ii)  the  first  information  report  recorded  under  section  154;

(iii)  the  statements  recorded under  sub-section  (3)  of  section  161 of all persons whom the prosecution proposes to examine  as  its  witnesses,  excluding  there  from any  part  in  regard  to  which a request for such exclusion has been made by the police  officer under sub-section (6) of section 173;

(iv)  the  confessions  and  statements,  if  any,  recorded  under  section 164;

(v) any other document or relevant extract thereof forwarded to  the Magistrate with the police report under sub-section (5) of  section 173:

Provided that the Magistrate may, after perusing any such part  of a statement as is referred to in clause (iii) and considering the  reasons given by the police officer for the request, direct that a  copy of that part of the statement or of such portion thereof as  the Magistrate thinks proper, shall be furnished to the accused:

Provided  further  that  if  the  Magistrate  is  satisfied  that  any  document  referred  to  in  clause  (v)  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.

208.  Supply  of  copies  of  statements  and  documents  to  accused in other cases triable by Court of Session.–Where, in  a case instituted otherwise than on a police report, it appears to  the  Magistrate  issuing  process  under  section  204  that  the  offence  is  triable  exclusively  by  the  Court  of  Session,  the  Magistrate shall  without delay furnish to the accused, free of  cost, a copy of each of the following:–    

         (i) the  statements  recorded  under  section  200  or  

section  202,  or  all  persons  examined  by  the  Magistrate;

(ii) the  statements  and  confessions,  if  any,  recorded  under section 161 or section 164;

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(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.

209. Commitment of case to Court of Session when offence  is  triable  exclusively  by it.–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.”  

7. An analysis of the above reproduced provisions shows that when a  

complaint  is  presented  before  a  Magistrate,  he  can,  after  examining  the  

complainant and his witnesses on oath, take cognizance of an offence.  This  

procedure is not required to be followed when a written complaint is made  

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by a public servant, acting or purporting to act in discharge of his official  

duties or when a Court has made the complaint or if the Magistrate makes  

over  the  case  for  inquiry/trial  to  another  Magistrate  under  Section  192.  

Section 202(1) empowers the Magistrate to 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 which  

he thinks fit for the purpose of deciding whether or not there exists sufficient  

ground for proceeding.  By Amending Act No.25 of 2005, the postponement  

of  the  issue  of  process  has  been  made  mandatory  where  the  accused  is  

residing  in  an  area  beyond  the  territorial  jurisdiction  of  the  concerned  

Magistrate.  Proviso  to  Section  202(1)  lays  down  that  direction  for  

investigation shall not be made where it appears to the Magistrate that the  

offence  complained  of  is  triable  exclusively  by  the  Court  of  Sessions  or  

where the complaint has not been made by a Court unless the complainant  

and the witnesses have been examined on oath under Section 200.  Under  

Section 202(2), the Magistrate making an inquiry under sub-section (1) can  

take evidence of the witnesses on oath.  If the Magistrate thinks that the  

offence complained of is triable exclusively by the Court of Sessions then in  

terms of proviso to Section 202, he is required to call upon the complainant  

to  produce  all  his  witnesses  and  examine  them  on  oath.   Section  203  

empowers the Magistrate to dismiss the complaint if, after considering the  

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statements made by the complainant and the witnesses on oath and the result  

of  the  inquiry  or  investigation,  if  any,  made under  Section 202(1),  he is  

satisfied that there is no sufficient ground for proceeding.  The exercise of  

this power is hedged with the condition that the Magistrate should record  

brief reasons for dismissing the complaint.  Section 204, which talks of issue  

of process lays down that if the Magistrate taking cognizance of an offence  

is of the view that there is sufficient ground for proceeding then he may  

issue summons for attendance of the accused in a summons-case.  If it is a  

warrant-case, then the Magistrate can issue warrant for causing attendance of  

accused.   Section  207  casts  a  duty  on  the  Magistrate  to  supply  to  the  

accused,  copies  of the police report,  the first  information report  recorded  

under  Section  154,  the  statements  recorded  under  Section  161(3),  the  

confessions and statements, if any, recorded under Section 164 and any other  

document or relevant extract thereof, which is forwarded to the Magistrate  

along  with  police  report.   Section  208  provides  for  supply  of  copies  of  

statement  and documents to accused in the cases  triable  by the Court  of  

Sessions.  It lays down that if the case, instituted otherwise than on a police  

report, is triable exclusively by the Court of Sessions, the Magistrate shall  

furnish to the accused, free of cost, copies of the statements recorded under  

Section  200  or  Section  202,  statements  and  confessions  recorded  under  

Section 161 or Section 164 and any other document on which prosecution  

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proposes to rely.   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.

8. The  object  of  examining  the  complainant  and  the  witnesses  is  to  

ascertain the truth or falsehood of the complaint and determine whether there  

is a prima facie case against the person who, according to the complainant  

has committed an offence.  If upon examination of the complainant and/or  

witnesses,  the Magistrate is  prima facie satisfied that  a case is  made out  

against the person accused of committing an offence then he is required to  

issue process.  Section 202 empowers the Magistrate to postpone the issue of  

process and either inquire into the case himself or direct an investigation to  

be made by a police officer or such other person as he may think fit for the  

purpose of deciding whether or not there is sufficient ground for proceeding.  

Under Section 203, the Magistrate can dismiss the complaint if, after taking  

into consideration the statements of the complainant and his witnesses and  

the result of the inquiry/investigation, if any, done under Section 202, he is  

of the view that there does not exist sufficient ground for proceeding.  On  

the other hand, Section 204 provides for issue of process if the Magistrate is  

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satisfied  that  there  is  sufficient  ground  for  doing  so.  The  expression  

“sufficient ground” used in Sections 203, 204 and 209 means the satisfaction  

that a prima facie case is made out against the person accused of committing  

an  offence  and  not  sufficient  ground  for  the  purpose  of  conviction.  

This interpretation of the provisions contained in Chapters XV and XVI of  

Cr.P.C.  finds  adequate  support  from  the  judgments  of  this  Court  in  

R.C.  Ruia  v.  State  of  Bombay,  1958  SCR  618,  Vadilal  Panchal  v.  

Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra Deo Singh v.  

Prokash Chandra Bose (1964) 1 SCR 639, Nirmaljit Singh Hoon v. State  

of West Bengal (1973) 3 SCC 753, Kewal Krishan v. Suraj Bhan (1980)  

Supp SCC 499, Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 and  

Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC  

492.

9. In  Chandra Deo Singh v. Prokash Chandra Bose (supra),  it  was  

held that where there was prima facie evidence, the Magistrate was bound to  

issue  process  and  even  though  the  person  charged  of  an  offence  in  the  

complaint might have a defence, the matter has to be left to be decided by an  

appropriate forum at an appropriate stage.  It was further held that the issue  

of process can be refused only when the Magistrate finds that the evidence  

led by the complainant is self contradictory or intrinsically untrustworthy.

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10. In  Kewal Krishan v. Suraj Bhan (supra), this Court examined the  

scheme of Sections 200 to 204 and held:

“At  the  stage  of  Sections  203  and  204  of  the  Criminal  Procedure Code in a case exclusively triable by the Court of  Sessions, all that the Magistrate has to do is to see whether on a  cursory  perusal  of  the  complaint  and  the  evidence  recorded  during the preliminary inquiry under Sections 200 and 202 of  the Criminal Procedure Code, there is prima facie evidence in  support of the charge leveled against the accused.  All that he  has  to  see  is  whether  or  not  there  is  “sufficient  ground  for  proceeding” against the accused.  At this stage, the Magistrate  is not to weigh the evidence meticulously as if he were the trial  court.   The  standard  to  be  adopted  by  the  Magistrate  in  scrutinizing the evidence is not the same as the one which is to  be kept in view at the stage of framing charges.”

11. The aforesaid view was reiterated in  Mohinder Singh v. Gulwant  

Singh (supra) in the following words:

“The scope of enquiry under Section 202 is extremely restricted  only  to  finding  out  the  truth  or  otherwise  of  the  allegations  made in the complaint in order to determine whether process  should issue or not under Section 204 of the Code or whether  the complaint should be dismissed by resorting to Section 203  of the Code on the footing that there is no sufficient ground for  proceeding on the basis of the statements of the complainant  and of his witnesses, if any. But the enquiry at that stage does  not partake the character of a full  dress trial  which can only  take place after process is issued under Section 204 of the Code  calling  upon  the  proposed  accused  to  answer  the  accusation  made against him for adjudging the guilt  or otherwise of the  said accused person. Further, the question whether the evidence  is  adequate  for  supporting  the  conviction  can  be  determined  only at the trial and not at the stage of the enquiry contemplated  

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under Section 202 of the Code. To say in other words, during  the course of the enquiry under Section 202 of the Code, the  enquiry officer has to satisfy himself simply on the evidence  adduced by the prosecution whether prima facie case has been  made out so as to put the proposed accused on a regular trial  and that no detailed enquiry is called for during the course of  such enquiry.”  

(emphasis supplied)

12. The use of the word ‘shall’ in proviso to Section 202(2) is prima facie  

indicative of mandatory character of the provision contained therein, but a  

close and critical analysis  thereof along with other provisions contained in  

Chapter XV and Sections 226 and 227 and Section 465 would clearly show  

that non examination on oath of any or some of the witnesses cited by the  

complainant is, by itself, not sufficient to denude the concerned Magistrate  

of the jurisdiction to pass an order for taking cognizance and issue of process  

provided he is satisfied that prima facie case is made out for doing so.  Here  

it is significant to note that the word ‘all’ appearing in proviso to Section  

202(2) is qualified by the word `his’.  This implies that the complainant is  

not bound to examine all the witnesses named in the complaint or whose  

names are disclosed in response to the order passed by the Magistrate.  In  

other words, only those witnesses are required to be examined whom the  

complainant considers material to make out a prima facie case for issue of  

process.   The  choice  being  of  the  complainant,  he  may  choose  not  to  

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examine other witnesses.   Consequence of such non-examination is to be  

considered  at  the  trial  and  not  at  the  stage  of  issuing  process  when  the  

Magistrate is not required to enter into detailed discussions on the merits or  

demerits of the case, that is to say whether or not the allegations contained in  

the complaint, if proved, would ultimately end in conviction of the accused.  

He  is  only  to  see  whether  there  exists  sufficient  ground  for  proceeding  

against the accused.

13. We may now refer to the judgment in Rosy v. State of Kerala (supra)  

on which reliance has been placed by both the learned counsel.  The factual  

matrix of that case reveals that the Excise Inspector filed a complaint before  

Judicial  Magistrate,  Thrissur  for  offences  punishable  under  Section  57-A  

and 56(b) of the Kerala Abkari Act.  As the offences were exclusively triable  

by the Court of Sessions, the learned Magistrate committed the case to the  

Court of Sessions, Thrissur.  After the prosecution examined witnesses, the  

accused were questioned under Section 313 Cr.P.C.  The public prosecutor  

then filed an application for recalling two witnesses, who were recalled and  

examined.  Thereafter, further statements of the accused under Section 313  

were recorded.  The accused examined four witnesses.   At that stage,  an  

argument  was  raised  that  the  committal  order  was  bad  because  the  

Magistrate did not follow the procedure prescribed in the proviso to Section  

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202(2).   The learned Sessions Judge opined that  there was breach of the  

mandatory provision but made a reference to the High Court under Section  

395(2) because he found it difficult to decide the course to be adopted in the  

matter.  The High Court held that the order of committal was vitiated due to  

violation of the mandate of proviso to Section 202(2).   Before this Court,  

the issue was considered by a two-Judge Bench.  M.B. Shah, J., referred to  

Sections 200 and 202, the judgment of this Court in Ranjit Singh v. State of  

Pepsu AIR 1959 SC 843 and held:

“Further, it is settled law that the inquiry under Section 202 is  of a limited nature. Firstly, to find out whether there is a prima  facie case in issuing process against the person accused of the  offence in the complaint and secondly, to prevent the issue of  process in the complaint which is either false or vexatious or  intended  only  to  harass  such  a  person.  At  that  stage,  the  evidence is not to be meticulously appreciated, as the limited  purpose being of finding out “whether or not there is sufficient  ground for proceeding against the accused”. The standard to be  adopted by the Magistrate in scrutinising the evidence is also  not the same as the one which is to be kept in view at the stage  of framing charges. At the stage of inquiry under Section 202  CrPC the accused has no right to intervene and that it  is the  duty of the Magistrate while making an inquiry to elicit all facts  not  merely  with  a  view to  protect  the  interests  of  an  absent  accused person, but also with a view to bring to book a person  or persons against whom grave allegations are made.”

Shah, J. then referred to the ratio of the judgment in Kewal Krishan  

v. Suraj Bhan (supra) and observed:

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“In this view of the matter it is apparent that the High Court  erred  in  holding  that  there  was  breach  of  the  mandatory  provisions of the proviso to Section 202(2) of the Code and the  order of committal is vitiated and, therefore, requires to be set  aside. The High Court failed to consider the proviso to Section  200, particularly proviso (a) to the said section and also the fact  that  inquiry  under  Section  202  is  discretionary  for  deciding  whether to issue process (under Section 204) or to dismiss the  complaint (under Section 203). Under Section 200, on receipt  of the complaint, the Magistrate can take cognizance and issue  process to the accused. If the case is exclusively triable by the  Sessions Court, he is required to commit the case to the Court  of Session.”

Shah, J.  also referred to the judgment of the Full  Bench of Kerala  

High Court in Moideenkutty  Haji v. Kunhikoya (1987) 1 KLT 635 and of  

Madras High Court in  M. Govindaraja Pillai v. Thangavelu Pillai 1983  

Cri LJ 917,  approved the ratio of the latter decision that Section 202 is an  

enabling provision and it is the discretion of the Magistrate depending upon  

the facts of each case, whether to issue process straightaway or to hold the  

inquiry and held:

“We agree with the conclusion of the Madras High Court to the  effect (sic extent) that Section 202 is an enabling provision and  it is the discretion of the Magistrate depending upon the facts of  each case, whether to issue process straight away or to hold the  inquiry.  However,  in  case  where  inquiry  is  held,  failure  to  comply with the statutory direction to examine all the witnesses  would not vitiate further proceeding in all cases for the reasons  that (a) in  a  complaint  filed  by  a  public  servant  acting  or  purporting to act in discharge of his official duties, the question  of holding inquiry may not arise,

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(b) whether  to  hold  inquiry  or  not  is  the  discretionary  jurisdiction of the Magistrate, (c) even if he has decided to hold an inquiry it is his further  discretion to examine the witnesses on oath. If he decides to  examine witnesses on oath in a case triable exclusively by the  Court of Session, he shall call upon the complainant to produce  all his witnesses and examine them on oath, (d) it  would  also  depend  upon  the  facts  of  each  case  depending upon the prejudice caused to the accused by non- compliance with the said proviso (Section 465), and (e) that the objection with regard to non-compliance with the  proviso should be taken at the earlier stage when the charge is  framed by the Sessions Court.”

(emphasis supplied)

K.T. Thomas, J. adopted a different approach regarding interpretation  

of Section 202.  He referred to the scheme of Chapters XIV, XV and XVI  

Cr.P.C. and observed:

“Three categories of documents are mentioned in the aforesaid  section the copies of which the Magistrate, who proceeds from  the stage in Section 204, has to supply to the accused free of  cost  (in  a  complaint  case  involving  an  offence  triable  exclusively by a Court of Session). As the words used here are  “shall furnish”, it is almost a compelling duty on the Magistrate  to  supply  the  said  documents  to  the  accused.  How  can  the  Magistrate supply such documents? [In the present context the  documents referred to in the third category mentioned in clause  (iii) are not important.] The first category delineated in clause  (i)  of  Section  208  consists  of  “statements  recorded  under  Section  200  or Section 202,  of  all  persons  examined by the  Magistrate”.  (emphasis  supplied)  It  is  now important  to note  that the words “if any” have been used in the second category  of documents which is delineated in clause (ii) of Section 208,  but those words are absent while delineating the first category.  In my view those two words have been thoughtfully avoided by  Parliament in clause (i).

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If a Magistrate is to comply with the aforesaid requirements in  Section  208  of  the  Code  (which  he  cannot  obviate  if  the  language used in the sub-section is of any indication) what is  the manner in which he can do it in a case where he failed to  examine the witnesses before issuing process to the accused?  The mere fact that the word “or” is employed in clause (i) of  Section 208 is not to be understood as an indication that the  Magistrate is given the freedom to dispense with the inquiry if  he has already examined the complainant under Section 200. A  case  can  be visualised  in  which  the  complainant  is  the  only  eyewitness or in which all the eyewitnesses were also present  when the complaint was filed and they were all examined as  required in Section 200. In such a case the complainant, when  asked  to  produce all  his  witnesses  under  Section  202 of  the  Code, is  at  liberty to report  to the Magistrate that he has no  other  witness  than  those  who  were  already  examined  under  Section 200 of the Code. When such types of cases are borne in  mind it is quite possible to grasp the utility of the word “or”  which  is  employed  in  the  first  clause  of  Section  208 of  the  Code. So the intention is not to indicate that the inquiry is only  optional in the cases mentioned in Section 208.

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.”

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Thomas, J. then referred to the recommendations made by the Law  

Commission in its 41st Report and held:

“Thus I have no doubt that the proviso incorporated in sub- section (2) of Section 202 of the Code is not merely to confer a  discretion on the Magistrate, but a compelling duty on him to  perform in such cases. I wish to add that the Magistrate in such  a situation is not obliged to examine witnesses who could not  be produced by the complainant when asked to produce such  witnesses. Of course if the complainant requires the help of the  court to summon such witnesses it is open to the Magistrate to  issue such summons, for, there is nothing in the Code which  prevents  the  Magistrate  from  issuing  such  summons  to  the  witnesses. I reiterate that if the Magistrate omits to comply with the above  requirement that would not, by itself, vitiate the proceedings. If  no  objection  is  taken  at  the  earlier  stage  regarding  such  omission the court can consider how far such omission would  have  led  to  a  miscarriage  of  justice,  when such objection  is  taken at a later stage. A decision on such belated objection can  be  taken  by  bearing  in  mind  the  principles  adumbrated  in  Section 465 of the Code.”

(emphasis supplied)

14. Although, Shah, J. and Thomas, J. appear to have expressed divergent  

views  on the  interpretation  of  proviso  to  Section  202(2)  but  there  is  no  

discord  between  them that  non  examination  of  all  the  witnesses  by  the  

complainant would not vitiate the proceedings.  With a view to clarify legal  

position on the subject, we deem it proper to observe that even though in  

terms of the proviso to Section 202(2), the Magistrate is required to direct  

the  complainant  to  produce all  his  witnesses  and examine  them on oath,  

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failure or inability of the complainant or omission on his part to examine one  

or  some  of  the  witnesses  cited  in  the  complaint  or  whose  names  are  

furnished in compliance of the direction issued by the Magistrate, will not  

preclude the latter from taking cognizance and issuing process or passing  

committal order if he is satisfied that there exists sufficient ground for doing  

so.  Such an order passed by the Magistrate cannot be nullified only on the  

ground of non-compliance of proviso to Section 202(2).  

15. In  Birendra K. Singh v. State of Bihar (supra), the only question  

considered  by  this  Court  was  whether  non-compliance  of  Section  197  

Cr.P.C.  was  fatal  to  the  prosecution.   While  holding  that  an  objection  

regarding non-compliance of Section 197 can be raised only after the case is  

committed to the Court of Sessions, this Court observed that it was not made  

aware  of  the  fact  whether  process  was  issued  after  complying  with  the  

provisions  of  Section  202.   Therefore,  that  judgment  cannot  be  read  as  

laying down a proposition of  law on interpretation of  proviso to Section  

202(2).  That apart, it is important to mention that in Abdul Wahab Ansari  

v.  State of  Bihar (2000) 8 SCC 500, a three-Judge Bench held that  the  

decision in Birendra K. Singh’s case does not lay down the correct law.

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16. 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).

17. 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.  We further  

direct  that  after  committal  of  the  case,  the  Sessions  Judge  to  whom the  

matter is assigned shall conduct and complete the trial within a period of 9  

months.  A copy of this order be forwarded to the Registrar General, Patna  

High Court, who shall place the same before Hon’ble the Chief Justice of  

that High Court.

….………………….…J. [G.S. Singhvi]

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…..…..………………..J. [Asok Kumar Ganguly]

New Delhi, July 6, 2010.

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