2010 (7) TMI 954 - SC - Indian Laws

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? Whether 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)?

Summary

Issues Involved:
1. 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.
2. Interpretation and application of proviso to Section 202(2) of the Code of Criminal Procedure (Cr.P.C.).

Issue-Wise Detailed Analysis:

1. Examination of All Witnesses Cited in the Complaint:
The primary issue in this case was whether the examination of all witnesses cited in the complaint is mandatory for a Magistrate to take cognizance in cases exclusively triable by the Court of Sessions. The appellant's son was allegedly killed by the respondents, and after the police investigation yielded no clues, the appellant filed a protest petition. The Chief Judicial Magistrate (CJM) took cognizance of the case based on the appellant's and two witnesses' statements, issuing non-bailable warrants against the respondents. The respondents challenged this, arguing that the CJM could not take cognizance without examining all witnesses.

2. Interpretation and Application of Proviso to Section 202(2) Cr.P.C.:
The High Court remitted the case back to the CJM, directing further inquiry based on the proviso to Section 202(2) Cr.P.C., which mandates the examination of all witnesses if the offense is triable exclusively by the Court of Sessions. The appellant contended that this proviso is not mandatory, and the CJM was justified in taking cognizance based on a prima facie case made out by the examined witnesses. The respondents, however, argued that the proviso is mandatory, and non-compliance vitiates the proceedings.

Legal Analysis and Court's Findings:

Examination of Witnesses:
The Supreme Court analyzed the relevant provisions of Cr.P.C., including Sections 200, 202, 203, 204, 207, 208, and 209. It noted that the object of examining the complainant and witnesses is to ascertain the truth of the complaint and determine if a prima facie case exists. The Court emphasized that the term "sufficient ground" in these sections means a prima facie case for proceeding, not for conviction.

Proviso to Section 202(2):
The Court examined the proviso to Section 202(2), which states that if the offense is triable exclusively by the Court of Sessions, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. The Court acknowledged the use of "shall" suggests a mandatory requirement but clarified that non-examination of all witnesses does not automatically nullify the Magistrate's cognizance if a prima facie case is established.

Precedents and Judicial Interpretation:
The Court referred to several precedents, including Rosy v. State of Kerala and Birendra K. Singh v. State of Bihar, to illustrate that the inquiry under Section 202 is limited to determining whether there is sufficient ground for proceeding. The Court highlighted that the discretion lies with the Magistrate, and failure to examine all witnesses does not vitiate the proceedings if a prima facie case is made out.

Conclusion and Directions:
The Supreme Court concluded that the examination of all witnesses cited in the complaint is not a condition precedent for taking cognizance and issuing process. The High Court erred in remitting the case for further inquiry solely based on non-compliance with the proviso to Section 202(2). The appeal was allowed, and the impugned order was set aside. The concerned Magistrate was directed to pass an appropriate order in terms of Section 209 within one month, and the Sessions Judge was instructed to complete the trial within nine months.

Final Judgment:
The Supreme Court allowed the appeal, set aside the High Court's order, and directed the concerned Magistrate to proceed in accordance with Section 209 Cr.P.C. within one month. The Sessions Judge was directed to complete the trial within nine months, ensuring a timely resolution of the case.