This revision comes before this Court by way of reference made by the learned Sessions Judge of East Thanjavur under S. 395(2) of the Cri.P.C. to this Court for the decision of the following question of law, viz., whether all the witnesses cited in a case triable exclusively by the Court of Session, instituted on a private complaint, should be examined by the committing Court, as contemplated under the proviso to S. 202(2) of the Code and if so, to quash the committal order passed by the learned Judicial Second Class Magistrate, Tiruvarur in P.R.C. 8/80 on his file, in which only four witnesses out of 9 cited have been examined.


2. The matter in question no doubt raises a very interesting and important question of law in respect of which there is a cleavage of judicial opinion among the various High Courts. Sections 200 to 203 of Chapter XV of the Cr.P.C., 1973, under the heading "Complaints to Magistrates", deal with the examination of the complainant and the procedure to be followed by the Magistrate while taking cognizance of the cases and also the dismissal of the complaint if there is no sufficient ground for further proceeding. S. 200 casts a mandatory duty on a Magistrate taking cognizance of an offence on a complaint, to examine the complainant and the witnesses present, if any, upon oath and to reduce the substance of such examination in writing and get the same signed by the concerned persons.


3. There are two provisos under that section. The first proviso reads 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 S. 192. The second proviso to the section reads that if the Magistrate makes over the case to an other Magistrate under S. 192 after examining the complainant and the witnesses, the Magistrate to whom the case has been made over need not re-examine them.


4. We are not concerned with S. 201 in this case as that section deals only with the procedure to be followed by a Magistrate, not competent to take cognizance of the case.


5. Section 202, which is an important provision to be examined for answering this reference, deals with the procedure to be adopted where the Magistrate, after postponing the issue of process for the purpose of deciding whether or not there is sufficient ground for proceeding in all the cases inclusive of a case triable exclusively by a Court of Session. There is a proviso to S. 202(1) and another proviso to S. 202(2). I shall reproduce sub-sections (1) and (2) of S. 202, with the provisos, for a proper understanding of the import of the section, which I shall deal with exhaustively after referring to various decisions rendered by various High Courts on the matter.


"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 S. 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 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 Session; 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 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 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) ....................." *


Section 203 of the Code gives a wide power to the Magistrate to dismiss a complaint without issuing process, after considering the statements of the complainant and the witnesses and the result of the inquiry or investigation, if any, under S. 202, if the Court is of the opinion that there is no sufficient ground for proceedings, and for passing such an order of dismissal, the Magistrate has to record the reasons in brief. Only if the Magistrate is of the opinion that there is sufficient ground for further proceedings, he can issue process to the accused as provided under S. 204.


6. A combined reading of Sections 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. But the Magistrate is given a discretionary power to resort to S. 202 either to make an inquiry or to direct an investigation, as envisaged in sub-section (1) of that section, if he thinks fit to do so, after postponing the issue of process, btu subject to the embargo provided under sub-section. Under sub-s. (2) of S. 202, a Magistrate, in an inquiry under sub-s. (1) of that section, is given discretionary power to take evidence of the witnesses on oath. The proviso to sub-section (2) of S. 202, which is important, enacts 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.


7. There is divergence of opinion with regard to the interpretation of the proviso to S. 202(2), causing some difficulty to subordinate Courts in adopting a uniform procedure in taking cognizance of offences exclusively triable by the Court of Session, that is to say, whether it is necessary or desirable for a court taking cognizance of such offences to resort to an inquiry as contemplated under the said proviso and whether in such an inquiry the Court should call upon the complainant to produce all his witnesses and examine them on oath or whether it would be sufficient if some of the witnesses whom the complainant intends to examine before the committing Court are alone examined.


8. Now, I shall refer to the various decisions rendered on this point.


9. Krishnaswamy Reddy, J., in Paranjothi Udyar v. State 1976 CrLJ 598 : 1975 Mad LJ (Cri) 629), has held as follows :-


"In case instituted on a police report the accused will have the benefit of obtaining the copies of the statements of witnesses recorded by the police. In cases instituted other than on a police report, the legislature in its wisdom has thought of providing the same facility and benefit to the accused and, therefore, the examination of the witnesses by the Magistrate in a case exclusively triable by a Court of Session, was made obligatory, so that the accused may have the copies of such statements and other documents, if any, mentioned in Clauses (ii) and (iii) of S. 208 furnished to him and have the benefit of preparing his defence as an accused in a police case will have." *


A similar question arose before me in P. R. Murugaiyan v. Jayaveera Pandia Nadar (1976 Mad LW (Crl) 199) : 1977 CrLJ 1700). In that case, it was observed that if the Magistrate, in cases triable exclusively by the Court of Session, had resorted to S. 202, he shall call upon the complainant to produce all his witnesses and examine them on oath an contemplated under the proviso to sub-section (2) S. 202 so as to find out whether there is sufficient ground for proceeding and that, if there is no sufficient material for proceeding, he can dismiss the complaint without issuing process under S. 204, Crl.P.C. In other words, the Magistrate can apply S. 200 and straightway dismiss the complaint under S. 203 or, if he thinks fit to postpone the issue of process against the accused and to make an enquiry into the case himself, he has to follow the procedure laid down under S. 202 before he resort to S. 203. This observation was made having regard to the object of the proviso which according to me, is introduced by the Parliament partly for the benefit of the accused to know the nature of the evidence which the prosecution proposes to rely upon against him so as to enable him to prepare his defence after the copies of such documents are furnished to him under S. 208 and partly to enable the Court to control the proceedings and decide whether or not there is sufficient ground for further proceeding. After having so observed, I have expressed my view as follows :


"However, I am of the view that it is always desirable in cases instituted on complaints that while the Magistrate takes cognizance of offences triable exclusively by the Court of Session, he should follow the procedure laid down under S. 202 of the Code, which serves the purpose of a preliminary enquiry, as that alone would be a sufficient safeguard to the accused before the court resorts to S. 204, and as the Court, being the legal custodian and guardian of the rights of the citizens, has a primary obligation to protect them from vindictive and vexatious prosecution." *


In B. Lakshmanna v. B. Narasappa 1976 CrLJ 127), the Andhra Pradesh High Court has observed that where, after recording the sworn statement of the complainant under S. 200 Cr.P.C. the Magistrate did not consider it necessary to postpone the issue of process, the case passed the stage of S. 202 Crl.P.C. and there can be no question of the Magistrate being required to follow the proviso to sub-section (2) of S. 202, Crl.P.C.


10. The Kerala High Court in Kochu Mohammed v. State of Kerala 1977 CrLJ 1867) has held that the proviso to S. 202(2) could have application only to cases where the Magistrate conducted an inquiry under S. 202(1) and not to other cases and therefore, omission to examine witnesses before committing the case to the Sessions Court did not render the order of committal irregular or illegal. The above observation was made on the facts therein which can be briefly stated as follows : The Magistrate therein took cognizance of the case under S. 200, Crl.P.C., after taking the sworn statement of the complainant and straightway issued process to the accused under S. 204 and committed the accused without resorting to an inquiry under S. 202.


11. A Division Bench of the Kerala High Court in Sulaiman v. Eachara Warrier (1978 Mad LJ (Crl) 630) had made the following observation :

"There is nothing in the code prohibiting a Magistrate after taking cognizance of an offence and examination by him of the complainant and the witnesses present, if any, under S. 200, from straightway issuing process under S. 204. The question then is whether the proviso to S. 202(2) stands in the way of doing that ................ S. 202(2) is specific that what is contained therein is applicable only to the inquiry referred to in S. 202(1). In S. 202(1) what is provided is that if the Magistrate thinks that postponment of the issue of process against an accused under S. 204 is necessary for deciding whether there is sufficient ground for proceeding he 'may' either inquire into the case himself or direct investigation to be made by a police officer. Mark the word 'may' here.


That shows that is open to him not to postpone the issue of process under S. 204 of the Code also. If he does not think fit to postpone the issue of process against the accused it is open to him to straightway issue process under S. 204 after examination of the persons contemplated by S. 200 of the Code. The choice is solely with the Magistrate. It is a matter entirely in his discretion. No fetter should be placed on that discretion. To tell the Magistrate that it is always desirable that in private complaints involving offences triable exclusively by the court of Session he should follow the provisions of the proviso to S. 202(2) is to interfere with that discretion and that is not warranted by S. 202(1) ........ if he (Magistrate) thinks that postponement of issue of process is necessary for finding out whether there is sufficient ground for proceedings he has to inquire into the case himself. And if he does that the proviso to S. 202(2) is immediately attracted. That proviso makes it obligatory on his part to call upon the complainant to produce all his witnesses and then to examine them on oath. But such a procedure is not contemplated if the Magistrate thinks after complying with the provisions of S. 200, that it is not necessary to postpone the issue of process against the accused for the purpose of finding out whether there is sufficient ground for proceeding." *


The gist of the above ruling is that where a Magistrate follows the procedure laid down under S. 200, takes cognizance of the case and straightway issues process against the accused under S. 204, he need not resort to the proviso to S. 202(2), but that proviso would be attracted only when the Magistrate chooses to resort to hold an inquiry under S. 202(1) by postponing the issue of process against the accused.


12. Poti, J. (of the Kerala High Court), doubting the correctness of the above Division Bench decision (Sulaiman v. Eachara Warrier 1978 Mad LJ (Cri) 630) referred similar cases to a Full Bench. A Full Bench of the Kerala High Court in Kaimala Bhargavi Amma v. Ravindran Nair 1979 CrLJ 1279) : 1979 AIR(NOC) 177), on such reference, examined the decision of the Division Bench in Sulaiman v. Eachara Warrier (supra) and, agreeing with the view expressed by the two single Judges of that High Court (Balagangadharan Nair, J., in Crl.M.P. 502 of 1975 and Khalid, J., in Crl.M.P. 766 of 1976). Held that after issuing process, the Magistrate cannot, under the present Code, hold an inquiry as contemplated by S. 202 of the Code, and that once process is issued, the Magistrate can only where it appears to him that the offence is triable exclusively by the Court of Session commit the case to the Court of Session. During he course of discussion of the case, the Full Bench observed that -


"the jurisdiction under S. 202 of the Code is a discretionary one to be exercised by the Magistrate depending upon the facts and circumstances of each case and so, no rule at general application with reference to any class of complaints, for example, complaints involving offences exclusively triable by a Court of Session, as regards even the desirability of the Magistrate holding an inquiry into the case himself or directing an investigation into it by a police officer or other officer can be laid down."They have further held as follows :


" On a plain reading of the proviso that occurs after sub-section (2) of the S. 202, it does not control and govern sub-section (1) of s. 202, for it does not require the Magistrate to inquire into the case himself when it appears to him that the offence complained of is triable exclusively by the Court of Session, but only requires him to call upon the complainant to produce all his witnesses and examine them on oath when it appears to him as aforesaid, in an inquiry into the case himself. If he holds an inquiry into the case himself, sub-section (2) confers on him a further discretion to take evidence of witnesses on oath, and the proviso makes it obligatory on him to call upon the complainant to produce all witnesses and examine them on oath in such a case." *


Paul, J. (while disposing of Crl.M.P. 1700 of 1977 - judgment dated 27-2-1978) : (Reported in 1978 CrLJ 1856) in Rajaratinam v. Anathanarayanan has viewed thus :


"Therefore, only if it appears to the Magistrate that an offence exclusively triable by the Court of Session is disclosed that the Magistrate is bound to hold an enquiry under S. 202" *


Sathar Sayeed, J., while disposing of Crl.M.P. 7809 of 1976 in Doraiswami Padayachi v. Arumugha Padayachi (judgment dated 21-6-1978), quashed the proceedings in a Sessions case, holding that the non-application of the proviso to the sub-section (2) of Section 202 in an inquiry held under Section 202(1) is illegal.


13. In Mokkasami v. Revenue Divisional Officer, Sivaganga (1978 Mad LW (Cri) 135), a contention was raised before Natarajan, J., that as the committing Magistrate did not examine anyone of the witnesses on oath by resorting to Section 202(1), Cr.P.C., the committal proceedings were invalid. The contention was rejected by the learned Judge holding that the legislature had enjoined a Magistrate to follow procedure prescribed in Section 202(2) for a twofold purpose, viz., (1) that the Magistrate should satisfy himself beyond doubt that the offence complained of is triable exclusively by the Court of Session and (2) that the accused should not be taken by surprise at the Sessions trial by the examination of witnesses who had not been examined by the Magistrate on oath before passing the committal order. However, having regard to the facts of the case therein. viz., that the complaint was filed by a public servant viz., the Revenue Divisional Officer, who had held an inquiry under the Police Standing Orders, and that all the statements recorded by the Revenue Divisional Officer had been perused by the Magistrate and copies had been made available to the accused, the learned Judge held that the first proviso to S. 200 Crl.P.C. was attracted to the facts of the case and the question of the examination of the witnesses by resorting to Section 202(2) did not arise and consequently the committal could not be said to be illegal.


14. In my view, the order passed by Natarjan, J., dismissing the revision petition therein cannot be said to be in any way conflicting with the view taken in Paranjothi Udyar v. State (1975 Mad LJ (Crl) 629) : 1976 CrLJ 598) and Murugaiyan v. Jayaveera Pandia Nadar (1976 Mad LW (Crl) 199 : 1977 CrLJ 1700). In fact, the examination of the witnesses by resorting to Section 202(2) is only discretionary and the non-exercise of that discretionary power cannot amount to an illegality. Therefore, the committal in that case by the Magistrate after taking cognizance of the offence under Section 200 and straightway issuing process under S. 204 was a valid order, as held by Natarajan J. in that case. However, it is to be noted that Natarajan, J., has emphasized the importance of the purpose for which Section 202(2) is enacted, stating that unlike a charge-sheet laid by the police, where the statements of witnesses recorded during inquest or under Section 161(3) Crl.P.C. would be made available to the accused free of cost, the statements of witnesses tot be examined in a case filed by a private complainant cannot be made available to the accused unless the complainant and his witnesses are first examined by the committal Court and that it is therefore to safeguard the interest of the accused that the Magistrate is enjoined to examine the witnesses on oath and record their statements under S. 202(2).


15. The view I have expressed in Murugaiyan v. Jayaveera Pandia Nadar (1976 Mad LW (Crl) 199) : 1977 CrLJ 1700) is that it is always desirable for the Magistrate taking cognizance of an offence triable exclusively by the Court of Session, in a case instituted on a private complaint, to resort to an inquiry under Section 202(2) of the Code, which serves the purpose of a preliminary inquiry and also safeguards the interest of the accused, so that vindictive and vexatious prosecutions could be avoided even though the Magistrate is not statutorily obliged to do so. Thus it can be seen that the view expressed by Natarajan, J., in Mokkasami's case (1978 Mad LW (Crl) 135) is in consonance with the principle underlying Paranjothi Udayrs case 1976 CrLJ 598) and Murugaiyan's case 1977 CrLJ 1700).


16. A Division Bench of the Andhra Pradesh High Court in Ramachander Rao v. Boina Ramachander (19809 Mad LJ (Crl) 67) : 1980 CrLJ 593) has also stressed the importance of the inquiry under the proviso to Section 202(2), observing that the said section

"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 defence .......... This provision is of great importance not only to the complainant but also to the accused ......... Though the accused would not have the right of cross-examination at that stage before the Magistrate, he has a right to cross-examine the witnesses at the stage of Sessions trial with reference to the earlier statements before Magistrate." *


17. In this connection, I feel that it would be worthwhile to compare S. 202 of the new Code and Section 202 of the old Code, the latter of which contemplated a committal proceeding. S. 202(1) of the old Code covered all the cases inclusive of cases exclusively triable by a Court of Session instituted on a complaint or transferred to him under Section 192. There was no separate provision under the old code similar or analogous to the proviso to section 202(2) which has been newly introduced in the present Code. Under the old Code also, the Magistrate could, even without resorting to an inquiry or directing an investigation as contemplated under sub-section (1), take cognizance of the case under Section 202 and then straightway issue process under Section 204 if, in his opinion, there was sufficient ground for further proceeding. However, discretion was given to the Magistrate under Section 202(1) of the old Code to postpone the issue of process and then either to make an inquiry himself or direct an inquiry or investigation into the cases by any Magistrate subordinate to him or by a police officer or such other person as he thought fit, in all the categories of cases inclusive of the cases exclusively triable by a Court of Session, notwithstanding the fact that there was also a separate committal inquiry before the accused was committed to take his trial before a Court of Session. But that discretion was subject to two main conditions, viz., that the Magistrate, for exercising such a discretionary power, should record his reasons therefor in writing and that the object of the inquiry or investigation was for the purpose of ascertaining the truth or falsehood of the complaint. In the present Code, the reasons need not be recorded and the inquiry or investigation is only for the purpose of deciding whether or not there is sufficient ground for proceeding. I think it is not necessary to make mention of all the changes that have been brought about in the present Section 202, except saying that the important proviso to S. 202(2) is newly introduced I am loath to load this judgment with all the citations with reference to the invocation on the inquiry under Section 202(1) of the old Code, but I shall limit myself citing only some of the decisions on this aspect.


18. The Rangoon High Court in S. D. Vardon v. R. Hearsey 1935 (36) CrLJ 75) : 1934 AIR(Rang) 167) has expressed its view as follows :


"The person making a complaint need not himself have personal knowledge of the facts constituting the offence, but before issuing process on such allegations the Magistrate should satisfy himself on proper materials that a case for issue of process has been made out. It was clearly desirable in the present case that the Magistrate should have acted under Section 202 Cri.P.C. ................" *


Having observed thus, the learned Judge set aside the Order of the Magistrate directing issue of summons and directed the Magistrate to make a preliminary inquiry under Section 202 (of the old Code 1898) which provided for a committal inquiry. See Thakur Prasad Singh v. Emperor (1906-10 Cal WN 1090).


19. The observations of the Supreme Court in Vadilal Panchal v. Dattatraya Dulaji may usefully be quoted. :


"The inquiry (under S. 202(1)) is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint; so as to justify the issue of process and commencement of the proceedings against the person concerned." *


Approving the above observation, the Supreme Court in Chandra Deo v. Prokash Chandra has analysed the scope and object of an inquiry contemplated under S. 202(1) in the following words.


"No doubt, one of the objects behind the provisions of Section 202, Crl PC, is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view of prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry 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 ............. A number of decisions were cited at the bar in which the question of the scope of the enquiry under Section 202 has been considered. Amongst those decisions are : Paramanand Brahmachari v. Emperor, 1930 AIR(Pat) 30 : 1929 (30) CrLJ 554; Radha Kishum Sao v. S. K. Misra, 1949 AIR(Pat) 36 : (1848- 49 CrLJ 599); Ramkisto Sahu v. State of Bihar. 1952 AIR(Pat) 125 : 1952 CrLJ 303); Emperor v. J. A. Finan, 1931 AIR(Bom) 524 : (1932- 33 CrLJ 169) and Baidya Nath Singh v. Muspratt, 1887 (14) ILR(Cal) 141. In all these cases, it has been held that the object of the provisions of Section 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not 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. The Courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction."Finally the Supreme Court has concluded therein as follows :


" No doubt, as stated in sub-section (1) of Section 202 itself the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant." *


20. When Section 202 of the new code is examined in juxtaposition with Section 202(1) of the old Code, bearing in mind the principles laid down in the above decisions, it would be clear that the proviso to Section 202(2) has been newly introduced not only for the purpose of safeguarding the interests of the accused but also to remove from the mind of the Magistrate any hesitation that he may have felt upon the mere perusal of the complaint and the consideration of the complainant's statement made on oath and the evidence of the witnesses, if any, examined under Section 200, and to avoid frivolous complaints.


21. In view of the above discussions, I hold that the action of the Magistrate choosing the course of resorting to an inquiry under Section 202 is always discretionary. No hard and fast rule can be laid down giving any guideline as to the circumstances warranting the desirability of adopting such a course. At any rate, the view expressed in Murugaiyan's case 1977 CrLJ 1700) (Mad) is not in any way intended to fetter the discretionary power vested with the Magistrate or to interfere with his power to dismiss a complaint under S. 203 straightway after complying with the provisions of section 200 and without resorting to Section 202. I would like to re-emphasize the view taken in Murugaiyan's case, stating that if such a course is adopted, it would partly be for the benefit of the accused and enable him to know the nature of the evidence which the complainant proposes to adduce against him and partly for the benefit of the Court enabling it to control the proceedings and decide whether or not there is sufficient ground for further proceeding. In addition to this, I would like to point out that if an inquiry contemplated under Section 202 is adopted by the committing Magistrate, the witnesses, who may be examined before the Court of Session after a considerable length of time from the time of the trial, may not make embellishments over the earlier version so as to suit their convenience, because in such a situation they will be contradicted by their earlier statements before the committing Magistrate. This course would also avoid many difficulties and inconveniences that would be caused to the accused at the time of the trial and also prevent to some extent the institution of frivolous and vexatious prosecutions out of spite and vindictiveness.


22. The above view as to the desirability of the Magistrate holding an inquiry under Section 202(2), receives support from the principles underlying the various statutory provisions of the Code, which I shall presently enumerate :


(1) Section 202(1) covers all the cases instituted before a Magistrate on private complaints and also cases that are made over to him under Section 192, inclusive of the cases triable exclusively by the Court of Session. this provision lays down three alternative modes of inquiry viz., (i) making an inquiry himself, (ii) directing an investigation to be made by a Police officer, and (iii) directing an investigation by such other person as the Magistrate thinks fit. Proviso (a) to Section 202(1) bars any direction for investigation envisaged under the second and third modes of inquiry mentioned above, but permits an inquiry by the Magistrate himself under the first mode of inquiry, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. So a reading of Section 202(1) in conjunction with proviso (a) makes it clear that the Magistrate taking cognizance of an offence triable exclusively by the Court of Session can make only an inquiry by himself without availing the assistance of a police officer or any other person. though he can get such an assistance of investigation in all other cases. Therefore, it is always advisable to resort to an inquiry under Section 202, the proviso to sub-section (2) of which Section makes it obligatory that the complainant shall be called upon to produce all his witnesses for examination on oath so that the committing Magistrate may have sufficient material to issue process to the accused and proceed further or to have some material for briefly recording his reasons for the dismissal of the complaint, when there is no sufficient ground for further proceeding. Reference can be made in this connection to the judgment rendered by the Supreme Court in Kewal Krishna v. Suraj Bahan wherein the following observation has been made :


"At the stage of Sections 202 and 204, Cri.P.C., in a case exclusively triable by a Court of Session, 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, Crl.P.C., there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is sufficient ground for proceeding against the accused ............... at the stage of sections 202, 204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Session, that will be sufficient ground for issuing process to the accused and committing them for trial to the Court of Session." *


As pointed out by the Supreme Court in the same judgment, though the Magistrate is not to weigh the evidence meticulously as if he were the trial Court, he must have prima facie evidence that will be sufficient for issuing process to the accused. Such a collection of evidence can be had either by the examination of the complainant and his witnesses, if any, under S. 200 or in addition to it, by the examination of the witnesses under Section 202. When the materials are collected both under Section 200 and under S. 202, those materials would enable the Court, without any reservation in its mind either to issue process straightway under Section 204 and commit the case or to dismiss the complaint under S. 203.


The Law Commission of India in its forty first report, while stating that the object of Section 202 is for the purpose of ascertaining the truth or falsehood of the complaint, has expressed its view as follows :


"Para 16.2. ...... ...... ...... ...... ......


Every-day experience of the Court shows that many complainants are ill-founded, and it is necessary therefore, that they should at the very start be carefully considered and those which are not on their face convincing, should be subjected to further scrutiny so that only in substantial cases should the Court summon the accused person."" Para 16.11.


We are recommending in a subsequent chapter (Chapter 18 of the report) the abolition of committment inquiries. This necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the Court of Session. We recommend that the Magistrate who takes cognizance of such an offence on complaint must himself make an inquiry into the complaint and call upon the complainant to produce all his witnesses and examine them on oath. Further, in such cases the Magistrate should not direct an investigation by a police officer or other person. For this purpose, we propose two amendments to S. 202 in the form of another proviso to Sub-S. (1) and proviso to Sub-S. (2)." *


These recommendations of the Law Commission also fortify my view that in view of the abolition of the committal inquiry under the new Code, it is desirable for the Magistrate to hold an inquiry under Section 202, Cr.P.C. in cases triable exclusively by the Court of Session, though such a course is not mandatory.


(2) Under Section 208, after the issue of process, in a case triable exclusively by the Court of Session, instituted other than on a police report, the Magistrate should, without, delay, furnish to the accused free of cost a copy of each of the following, viz.,


(i) The statements recorded under Section 200 or under Section 202 of all persons examined by the Magistrate, (ii) the statements and confessions, if any, recorded under Section 161 or Section 164, and (iii) any documents produced before the Magistrate, on which the prosecution proposes to rely. This section is complementary to S. 207 and has been newly introduced for enabling the accused to have sufficient information about the nature of the indictabel offence levelled against him. The objects and reasons in respect of this newly introduced Section 208, mentioned by the Law Commission in its 41st report, reads as follows :


"Where the Magistrate issues process under Section 204 on complaint, and the offence is triable exclusively by the Court of Session, the Magistrate should grant to the accused copies of the statements of all persons examined by the Magistrate, and other material on which the prosecution relies in order that the accused may get adequate information about the charge against him and prepare for his defence. This is all the more necessary since commitment proceedings are to be abolished." *


(Vide para 17-10).


The above recommendation of the Law Commission indicates that the new provision under Section 208 was introduced with the object of enabling the accused to get adequate information about the charge to be levelled against him and to see that he is not kept in darkness without having any material on the basis of which the prosecution proposes to rely upon till the witnesses are examined for the first time at the time of the trial. Therefore, the only mode by which the accused could be put on notice of the materials against him is by the Court furnishing the copies of the statements necessarily recorded under S. 200 and desirably recorded under S. 202 Cr.P.C.


(3) A new section viz., Section 227 is now introduced in the new Code in Chapter XVIII dealing with "Trial before a Court of Session" and that provision empowers the Court to discharge the accused for the reasons to be recorded, if the trial Judge is not convinced, on a consideration of all the documents submitted before him (the documents referred to in Section 208), which ill include the statements of the complainant and the witnesses examined under Sections 200 and 202 that there are sufficient grounds for proceeding against the accused. Under S. 228, which is also a new provision introduced in the Code, if the trial Judge is of the opinion that there is ground for presuming that the accused has committed an offence which -(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;


(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. Therefore, as pointed out by the Supreme Court in State of Bihar v. Ramesh Singh though the trial Court, at the stage of framing the charges, need not meticulously judge the truth or veracity and effect of the evidence produced by the complainant, nevertheless, there must be prima facie evidence in support of the allegations made by the complainant relating to the case exclusively triable by the Court of Session so that the trial Judge may examine and satisfy himself whether there is no sufficient ground for framing any charge, and if so discharge the accused under S. 227, or whether there is no ground for framing a charge for an Offence exclusively triable by the Court of Session but there is sufficient ground only for framing a charge for an offence other than the one triable by a Court of Session, so that he could frame a charge against the accused and transfer the case for trial to the Chief Judicial Magistrate, or whether there is ground for presuming that the accused has committed an offence exclusively triable by a Court of Session, so that a charge could be framed for such a Sessions trial. The Supreme Court in state of Karnataka v. L. Muniswamy 1977 SCC(Crl) 404 : 1977 CrLJ 1125) has reiterated its observation made in Century Spinning and Manufacturing Company v. State of Maharashtra while construing the power and jurisdiction of the Court at the stage of framing of charges, as follows :



"........ the order framing a charge affects a person's liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial." *


Hence, it follows that the Sessions Judge, while framing the charge, should have some material so that he could act either under S. 227, which is a benevolent provision newly introduced to save the accused from any harassment or under S. 228(1)(a) or (b) so that the trial Court need not unnecessarily waste its time by trying all the cases as Sessions cases, and similarly the accused also need not undergo the ordeal of a Sessions trial in all cases. Needless to say that the application of Sections 227 and 228 would come into operation only in committal of the proceedings by the Magistrate on it appearing to him that the offence is exclusively triable by the Court of Session, on the materials available before him, collected under S. 200, and the evidence, if any, recorded under S. 202. In this connection, it may be noted that the committing Magistrate is not empowered to framed the charge. It is only after the committal, the Sessions Judge exercises his powers under S. 227 or under S. 228, that is to say, he once again considers the record of the case and the documents submitted therewith and hears the submissions of the accused and the prosecution and finally either passes an order of discharge or frames a charge for an offence other than the one triable by the Court of Session or for an offence triable by the Court of Session, what the Sessions Judge is statutorily obliged to do under Sections 227 and 228 is to make a fresh and second consideration of the materials notwithstanding the fact that it appeared to the committing Magistrate that the materials placed before him were sufficient to warrant a trial by the Court of Session. No doubt, as pointed out by the Supreme Court in Kewal Krishnan v. Suraj Bhan the standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. However, unless there is sufficient material available at the time of the framing of the charge, the Sessions Court will not be in a position to form an opinion whether there is sufficient ground for proceeding either under S. 227 or under S. 228, though the standard of consideration of such materials at the time of framing the charge is not exactly the same standard that is to be applied at the time of finding out the guilt or otherwise of the accused. Therefore, it would always be desirable to resort to an inquiry under S. 202(2) in cases exclusively triable by a Court of Session so that the Sessions Judge can have the materials collected under Sections 200 and 202 to form an opinion as to whether there is no sufficient ground for proceeding against the accused or whether there is ground for presuming that the accused has committed an offence.(4) The object of S. 202 is to prevent harassment of innocent persons by indiscriminately issuing process, in cases where there is no sufficient ground for proceeding against them. It is pertinent to note in this connection that while the present S. 202(a) gives a wide and unfettered discretionary power to the Magistrate to postpone the issue of process against the accused if he thinks fit. S. 202(1) of the old Code conditioned the discretionary power of postponing the issue of process by requiring him to record the reasons for such postponement in writing, even if he thought fit to do so. The words "for reasons to be recorded in writing" are now omitted in S. 202(1) of the present Code. The reason for the omission of the said words, is evidently for enabling the Magistrate to use his discretionary power whenever he thinks fit to do so and he need not give reasons for such postponement of the issue of process. In other words, he can use his discretionary power without any fetter or restriction so that he can freely resort to this Section (S. 202) for the purpose of collecting more materials to decide whether or not there is sufficient ground for proceeding against the accused.


23. For the reasons mentioned in the above paragraphs, I am of the view that as the procedural law relating to the cases - inclusive of cases triable exclusively by the Court of Sessions - stands, the Magistrate taking cognizance of an offence on a complaint after compliance with S. 200, can straightway either dismiss the complaint under S. 203 if there is no sufficient ground for proceeding or issue process to the accused under S. 204 if, in the opinion of the Magistrate, there is sufficient ground for proceeding without holding an inquiry or investigation as contemplated under S. 202, Cr.P.C. Therefore, an order of committal passed under S. 209 by the Magistrate taking cognizance of an offence under S. 200 and thereafter straightway issuing process under Section 204, is a valid committal order and that committal order cannot be challenged as illegal on the ground that the Magistrate has not availed of an inquiry under S. 202. But, in case the Magistrate, after compliance with S. 200 does not propose to proceed with the case either under Rs. 203/- or under S. 204, but thinks fit to make an inquiry into the allegations of the complaint as contemplated under S. 202, he may postpone the issue of process and, after considering the statements of the complainant and the witnesses recorded under S. 200 and the further statements of the witnesses recorded under S. 202, may either dismiss the complaint under S. 203 or issue process under S. 204, as warranted by the facts of each case. Once the Magistrate resorts to follow S. 202, which is an enabling provision, it would be clear that the Magistrate wants to satisfy himself either by an inquiry or by an investigation, whether or not there is sufficient ground for proceeding. In other words, the Magistrate taking cognizance of the offence, requires some more material in support of the allegations made in the complaint in addition to the statement made on oath by the complainant and the statement or statements of his witness or witnesses, if any, examined under S. 200, so as to enable him to form an opinion as to whether process should be issued or not. As repeatedly pointed out, the proviso to S. 202(2) makes it obligatory for the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. This course of resorting to an inquiry under the proviso to S. 202(2) in cases triable exclusively by the Court of Session, is always desirable, though not mandatory, for the various reasons stated supra, and thereafter the Court shall issue the process and commit the cases under S. 209 if there is sufficient ground for further proceeding.


24. The next question that arises for consideration is whether the complainant should be called upon to produce all his witnesses for examination on oath by the Court when it resorts to an inquiry as per the proviso to sub-section (2) of S. 202. On this point also there is a conflict of views. In Paranjothi Udayar v. State (1975 Mad LJ (Cri) 629) : 1976 CrLJ 598), Krishnaswamy Reddy, J. has expressed the view that the recording of statements of all the witnesses on oath as provided under the proviso to S. 202(2) and furnishing of copies of such statements as provided under S. 208(1) are mandatory. The Division Bench of the Kerala High Court in Sulaiman v. Eachara Warrier (1978 Mad LJ (Crl) 630) has ruled that the proviso the sub-section (2) of S. 202 makes it obligatory on his (Magistrate's) part to call upon the complainant to produce all his witnesses and then to examine them on oath. The Full Bench of the Kerala High Court in Bhargavi Amma v. Ravindran Nair 1979 CrLJ 1279) reaffirms the above view holding that the proviso makes it obligatory on the Magistrate to call upon the complainant to produce all the witnesses and examine them. In Murugaiyan v. Jayaveera Pandia Nadar (1976 Mad LW (Crl) 199) : 1977 CrLJ 1700), I have expressed the view that if the Magistrate has decided to resort to an inquiry under S. 202, he shall call upon the complainant to produce all his witnesses and examine them on oath and issue process only if there is sufficient ground for further proceeding. Paul, J. while disposing of Crl.M.P. 890 of 1978 (judgment dated 3-3-1978), following the ruling of a single Judge of the Andhra Pradesh High Court in M. N. Reddy v. Kanakanti Mal Reddy (1977 Mad LJ (Crl) 10 : 1977 CrLJ 1473), has held that the Magistrate is bound to examine only the witnesses produced by the complainant when he is called upon to produce them even in an inquiry under S. 202(2), Cr.P.C., and that, the

Magistrate need not examine all the witnesses cited in the complaint. The reasoning of the learned Judge for taking the said view is that the proviso to sub-section (2) of S. 202 only says that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath, which according to the learned Judge, means that this proviso does not say that the Magistrate shall examine all the witnesses cited in the complainant. In M. N. Reddy's case 1977 CrLJ 1473), though the complainant therein cited ten witnesses, he produced only P.Ws. 1 to 6 and 10 and gave up the examination of the remaining P.Ws. 7 to 9. The accused therein filed a petition under S. 482 of the Code for quashing the proceedings taken against them on the ground that the Magistrate taking cognizance of the offence without examining all the witnesses cited in the complaint is in violation of the mandatory provision of S. 202(2) of the Code. This contention was rejected by the Court holding that: "the expression of 'his witnesses' as occurred in the proviso shall have to be understood only as such of those witnesses that were produced by the complainant but not those that were given up by him." * According to the learned Judge, the complainant may cite a number of witnesses, but examine only such of the witnesses from the list and give up the remaining and the Magistrate is competent to examine only those witnesses that were produced by the complainant (sic) to produce witnesses given up by him. It is not clear from the judgment whether the complainant gave up some of the witnesses once for all the examined only those witnesses whom he proposed to examine before the Sessions Court.25. In Ramachander Rao v. Boina Ramachander 1980 CrLJ 593) : (1980 Mad LJ (Crl) 67), it has been held by a Division Bench of the Andhra Pradesh High Court that the proviso to S. 202(2) makes it clear that if the offence complained of is triable exclusively by a Court of Session, the Magistrate shall examine all the witnesses on oath. They have laid emphasis on the meaning of the word "all" and stated that "all" does not mean "some". According to the Bench, the examination of the witnesses is not a mere formality but a mandatory direction which has to be complied with. 26. A learned Judge of the Calcutta High Court, before whom similar question arose in Kamal Krishna v. State 1977 CrLJ 1492) : (81 Cal WN 976), quashed the proceedings on the ground that all the witnesses mentioned in the complaint had not been examined by the Magistrate before issuing process to the accused. 27. The Allahabad High Court in Babu Ram v. State of Uttar Pradesh 1978 Cri 1430), while dealing with the same section, has held that in a case exclusively triable by the Court of Session, the accused could be summoned only after the Magistrate has called upon the complainant to produce all his witnesses and examined them on oath. 28. From the above decision, it can be seen that except Paul, J. in Crl. M.P. 890/78, following the judgment of a single Judge of the Andhra Pradesh High Court in M. N. Reddy's case 1977 CrLJ 1473), which ruling has been impliedly overruled by a Division Bench of the Andhra Pradesh High Court in Ramachander Rao's case 1980 CrLJ 593), most of the Judges of this Court and the various other High Courts have taken the view, with which I am in respectful agreement, that, when once the Magistrate resorts to an inquiry under S. 202 in cases triable exclusively by a Court of Session, by application of the proviso to S. 202(2) it is imperative on the part of the Magistrate taking cognizance of the offence to call upon the complainant to produce all his witnesses and examine them on oath before arriving at a conclusion whether he should proceed either under S. 203 or under S. 204 of the Code. The failure on the part of the Magistrate to comply with this statutory direction given under the proviso to S. 202(2) would vitiate the further proceedings taken by the Magistrate. 29. Coming to the reference on hand, it is seen from the list of witnesses appended to the complaint that the complainant has cited nine witnesses of whom he has examined only three witnesses listed as Nos. 6, 8 and 9, besides examining himself, and the other six witnesses cited as Nos. 1 to 5 and 7 have not been examined. The learned Magistrate who has committed the case has stated that he thought it fit to make an inquiry in this case by resorting to S. 202(2). Under these circumstances, therefore, I am of the view that the learned Magistrate ought to have called upon the complainant to produce all his witnesses and examined them on oath and he is not justified in saying that from the examination of the complainant and the three witnesses produced before him, he came to the conclusion that a prima facie case had been made out against the accused and hence he ordered the issue of process and passed the committal order without examining the other witnesses cited. 30. Hence, the order of committal passed by the learned Magistrate has to be and is accordingly quashed and the entire matter is restored to the file of the committing Magistrate who, on receipt of this order, shall call upon the complainant to produce all his witnesses and examine them on oath and thereafter pass the final order according to law.