(1) THE common question of law that arises for consideration in these two proceedings relates to the ambit and scope of the proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973 (the Code).


(2) IN both these proceedings the learned magistrates had issued process to the accused on private complaints. The offences alleged were exclusively triable by the Court of Session. In Kusuma's complaint the allegation was that the accused was liable to be proceeded against for an offence under Sec. 376 I. P. C. In the other matter (Cr. R. P. 655/83) complainant Saraswathamma's case was that the accused were liable for an offence of kidnapping or abduction etc. , In Saraswathamma's case, when the accused entered appearance pursuant to the summons issued to them, they were committed to the Court of Session; but the learned Sessions Judge, Kolar, has discharged the accused under Sec. 227 of the Code holding that there was no sufficient ground for proceeding against the accused. In his view the material available was not sufficient to frame any charge.


(3) A Magistrate, taking cognizance of an offence on complaint, shall have to proceed in accordance with the provisions contained in Chapter XV of the Code in order to find out as to whether there is sufficient ground for proceeding against the accused in which case he will issue process under Section 204 of the Code.


(4) EXCEPT in the cases covered by the first proviso to Section 200, in other cases, the Magistrate, taking cognizance of an offence, shall have to examine, upon oath, the complainant and his witnesses, if any, present. Section 201 deals with cases where a Magistrate feels that he is not competent to take cognizance.


(5) A Magistrate, who examines, upon oath, the complainant and his witnesses , if any, present, "may, if he thinks fit , postpone the issue of process against the accused and either enquire into the case him self or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding". (Sec. 202 (1).


(6) SECTION 203 provides for the dismissal of the complaint if the Court considers, after an enquiry in the manner stated above, that there was no sufficient ground for proceeding. Otherwise, as already stated, if, according to him, there is sufficient ground for proceeding he may issue process acting under Sec. 204


(7) SINCE we are considering the scope of the proviso to sub-section (2) of Section 202, let me extract that entire provision: "202. (1) Any Magistrate, on receipt of a complaint of an offence to which he is authorised to take cognizance or which has been made over to him under sec. 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, fur 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 Section 200. (2) In an enquiry 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) If the investigation under sub-sec. (1)is made by a person, not being a Police officer, he shall have for that investigation all the powers conferred by this code of an Officer-in-charge of a police station except the power to arrest without warrant. "


(8) IF the Magistrate decides to proceed under S. 202 he has the option for himself to enquire into the case or direct an investigation by a Police Officer or by such other person as he thinks fit. . But the proviso to sub-Sec. (1) of S. 202 places two bars on the Magistrate in the matter of directing an investigation into the case by others. He cannot make any such direction where, it appears to him, that the offence complained of is one triable exclusively by the Court of Session; and, secondly, without examining the complainant and the complainant's witnesses, if any, present, as provided under S. 200 of the Code.


(9) IN case he proceeds to enquire into the case by himself as provided in sub-sec. (1) of S. 202 as to how he should proceed is stated in sub-sec. (2). This sub-section says that the magistrate may, if he thinks fit, take evidence of witnesses on oath. But, the proviso to sub-sec. (2) says that if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of Session he has to call upon the complainant to produce all his witnesses and examine them on oath.


(10) IN the two proceedings, with which we are concerned, admittedly the Courts have not taken recourse to the proviso to sub-sec. (2) of S. 202.


(11) TWO views were put forward at the Bar. One view is that it is not obligatory for the Magistrate to proceed under S. 202 in all cases even if it is one triable exclusively by the court of Session and, therefore, after examining the complainant, upon oath, and his witnesses, if any, present, if he finds a prima facie case to proceed against the accused, it is open to him to issue process to them and thereafter to commit the accused to the Court of session in accordance with the procedure laid down. The other view is that in the case of a complaint where it appears to the Magistrate that the offence complained of is one exclusively triable by the Court of Session he should call upon the complainant to produce all his witnesses and examine them on oath. It was argued that it was desirable to do so for more than one reason.


(12) A plain reading of S. 202 shows that the law vests with the Magistrate taking cognizance of a complaint, a discretion in the matter of taking recourse to S. 202. This is clear from the words "may if he thinks fit, postpone the issue of process-and either enquire into the case himself. . . or" found in sub-sec. (1) of S. 202. Sub-sec. (2) of S. 202 comes into play only when the Magistrate decides to, proceed under sub-sec. (1) of that section. The proviso to sub-sec. (2)controlling as it does that sub-section, cannot be viewed as if it controls even S. 200.


(13) IN Kamal Krishna De v. State (1977) 2 Cr. L. J. 1492. a Division bench of the Calcutta High Court taked the view that in a private complaint involving an offence exclusively triable by the Court of Session it is obligatory on the part of the Magistrate, taking cognizance of a complaint, to examine all the witnesses as provided in the proviso to sub-sec. (2) of S. 202. The Court points out, that otherwise, the accused would be seriously prejudiced later during the trial in the court of Session. A single Judge of the Madras high Court in P. R. Murugaiyan v. Jayaveera pandia Nadar (1977 2 Crl. L. J. 1700 has taken 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 would alone be a sufficient safeguard to the accused before the Court resorts to S. 204. " though in Kochu Mohammed v. State of Kerala (1977) 2 Crl. L. J. 1867 a learned single Judge of the Kerala high Court has been of the view that the Magistrate taking cognizance of an offence exclusively triable by the court of Session has a discretion in the matter of holding an enquiry under s. 202 of the Code, he further observes that it is desirable that the magistrates, in such cases, (complaints involving offences exclusively triable by the Court of Session) use their discretion and examine all important witnesses as otherwise it is likely to handicap the accused in his defence. A Division Bench of the Andhra pradesh High Court in Ramachandra rao v. Boina Rama Chandra (1980) 1 crl. L. J. 593 observes that it would be obligatory on the part of the Magistrate, taking cognizance of an offence on a private complaint involving a case triable exclusively by the Session, to examine all the complainant's witnesses acting under sub-sec. (2) of s. 202 of the Code. That also is the opinion of a single judge of the Madhya Pradesh High court in Bajji v. The State of Madhya pradesh. (1981) 2 Crl. L. J. 1558. But, a Full Bench of the Kerala high Court in Kamala Bhargavi Amma, v. Kundumadathil Ravindran Nair (1977) 2 Crl. L. J. 1279. is of the view that it was not obligatory for the magistrate, in a case like the one referred to above, to take recourse to S. 202 and that provision (S. 202), their lordships are of the view, confers a discretion on the Magistrate whether or not to enquire into the complaint himself. It may be noted that in that case the offence involved was one exclusively triable by the Court of Session. The learned Magistrate, who had taken cognizance of a complaint after recording the statement of the complainant on oath, had issued process acting under S. 204. After the accused appeared the case was committed to the Court of Session. In the court of Session the accused was discharged under S. 227 of the Code on the ground that there was no sufficient material for proceeding against the accused. At that stage the Sessions judge rightly relied only on the material made available to him by the magistrate and, as already stated, that consisted of the complainant's complaint petition and her sworn statement. The Sessions Judge took the view that this was wholly insufficient to proceed against the accused The Kerala high Court (Full Bench) has upheld this decision.


(14) RE: the construction placed by various Courts on S. 202 of the code I am inclined to follow the views of the Full Bench of the Kerala High court in Kamala Bhargavi. As stated above, at para 12, the Magistrate has a discretion in the matter of himself holding an enquiry under S. 202.


(15) TRUE it is also observed in kamala Bhargavi Amma "that as in the matter of any discretionary jurisdiction vested in a Court it would not be proper to lay down any hard and fast rule as to when such discretion is to be exercised; nor is it possible or feasible". But at the same time would not this Court be failing in its duty if it does not, atleast broadly, indicate how subordinate Courts while dealing with situations like these may have to proceed so that parties are not put to hardship or harassment? Given the same set of facts or confronted with similar situations can they act differently, though exercising their discretionary powers? I feel, that it is in the ends of Justice desirable that this court should impress upon the trial courts dealing with private complaints involving offences exclusively triable by Courts of Session the feasibility of examining all the witnesses, taking recourse to the proviso to sub-sec. 2 of s. 202 of the Code, before taking a decision in the matter under S. 203 or 204 thereof.


(16) THIS is for more than one (reason. When a case is committed to the Court of Session in accordance with S. 209 of the Code, that Court has to proceed with the trial as provided under Chapter XVIII of the Code. The Court has to put the accused on trial after first framing charges. It has to frame charges "upon consideration of the record of the case and the documents submitted therewith" and hearing the concerned. (S. 227) If there is no sufficient ground to proceed the Judge has to discharge the accused. Whether there is sufficient ground to frame a charge has to be examined only upon consideration of the record of the case then available, which means the record built up by the commital Court and sent to that Court. An offence triable exclusively by the Court of Session is a serious matter, serious not merely for those personally involved but also from the societal point of view. If there is trust worthy evidence, the culprit should not go unpunished ; but if there is no merit in the complaint the person against whom allegations are made should not be harassed by a trial in the Court of Session. That Court also should not be forced to hold a roving enquiry. Further,

since the enquiry under S. 202 of the Code precedes the order, if any, of the Magistrate issuing process, any order by him, after an adequate consideration of all the material made available to him or obtained from him, dismissing the complaint by not issuing process, will save the concerned from avoidable agony and harassment and thus greatly sub-serves the ends of Justice. (17) I have carefully examined the proceedings involved in these two petitions. I am of the view that in both these matters the orders of the concerned Courts process to the accused will have to be set aside with a further direction to those Courts to hold fresh enquiries into these complaints. (18) ACCORDINGLY, both these petitions allowed. The order of the J. M. F. C chintamani in C. C. No. 390 of 1982 dated 20-12-1982 committing the accused to the Court of Session and its earlier order date 23-6-1982 in that case issuing process against the accused and also the order of the Sessions Judge, kolar, dated 15-6-1983 in S. C. No. 5 of 1983 on his file discharging the accused are hereby set aside. The order dated 23-11-1981 of the J. M. F. C. , Sagar, in C. C. No. 934 of 1981 on his file issuing summons to the accused is also set aside. The matters are remitte to the Courts of the J. M. F. C. concerned for a fresh enquiry and disposal according to law and in the light of the observations made above.