Research › Browse › Judgment

Patna High Court · body

1975 DIGILAW 210 (PAT)

P. K. Biswas v. State

1975-11-26

SHAMBHU PRASAD SINGH

body1975
JUDGMENT Shambhu Prasad SJngh, J. : In these two criminal revision applications the question which arises for decision is whether the entire proceeding is vitiated if no witness 0n behalf of the complainant who files a petition of complaint in writing is examined and the Magistrate taking cognizance does not record in writing that no witness was present. Criminal revision No. 273 of 1975 is a case in which cognizance was taken on the 14th of November, 1972. Therefore, this case is governed by the Code of Criminal Procedure, IR98 (hereinafter referred to as 'the old Code'). In Criminal Revision No, 420 of 1975, cognizance was taken on the 7th of November, 1974. This case, therefore, is governed by the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code'). In both the cases, petition of complaint was filed in writing and cognizance was taken thereon, In the ordersheet while taking cognizance the Magistrates have not recorded that no witness on behalf of the complainant was present. Petitions were filed in both the cases before the Chief Judicial Magistrate praying that the accused be either acquitted or discharged and by the impugned orders that prayer has been refused. 2. There is some difference in the language of section 200 of the old Code and the new Code. Relevant portions of the section in the old Code are as follows :- "A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate, Provided as follows :- (a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transfering the case under section 192. Section 200 of the new Code is as follows : - "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 enquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate m3.kes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them," In the main portion, though there is some difference in the language of the section in the old Code and the new code, the change introduced by the new code is not of any importance. In the proviso, however, while the word "witness" is there in the new code, it is not there in the old Code. In view of the language of the new Code, Mr. K.P. Verma, learned counsel appearing on behalf of the petitioners, frankly conceded that the order against which Criminal Revision No. 420 of 1975 has been filed does not suffer from any illegality. In that view of the matter, there is no substance in Criminal Revision No. 420 of 1975 and that has to be dismissed. 3. In Criminal Revision No, 273 of 1975. Mr. K.P. Verma, however, has strenuously urged that, as the word witness" is not there in the proviso to section 200 of the old Code, failure on the part of the Magistrate to examine witnesses will vitiate the proceeding. He has submitted that the proceeding will be vitiated if there is nothing there to indicate in the order sheet of the Magistrate taking cognizance that witnesses for the complainant were not present at that time in Court for, in such cases, superior Courts must proceed on the assumption that witnesses were present and not examined by the Magistrate. In support of the contention, Mr. In support of the contention, Mr. Verma has relied on a decision of learned single Judge of the Calcutta High Court in the case of Jitendra Nath Mitra and another Vs, State1 1974 Cr.L. 1441. According to the learned Single Judge, as the Magistrate taking cognizance had not recorded in the order sheet that witnesses on behalf of the complainant were not present on that date and the record did Dot show hat he had examined any witness before taking cognizance the proceeding was vitiated on account of non-conformance to the mandatory provisions of section 200 of the old Code. With due respect to the learned single Judge of the Calcutta High Court, I do not agree with the view taken by him. It is well-established that, even in case where a complainant is present and not examined on solemn affirmation where he should have been examined before taking cognizance, that is a mere irregularity and does not vitiate the proceeding. If reference to any authority is needed, I may refer to a Fun Bench decision of the Court in the case of Bharat Kishore Lal Singh Deo Vs. Judhistir Modak2 AIR 1929 Patna 473 (FB). I am tempted to quote the language of Courtney-Terrell, Chief Justice, who delivered the Judgment in that case. He said "Every High Court in India has held that the commission to examine the complainant on oath is in fact not an illegality but is an irregularity and being an irregularity the next question that arises is as to whether the petitioner has by reason of the irregularity been put to any substantial injustice". I, for myself, fail to understand, if examination of the complainant on solemn affirmation is not illegality but mere an irregularity, bow can non-examination of the witnesses on behalf of the complainant be illegality and not irregularity vitiating the entire proceeding. Apart from that, according to me, the provision for examination of the complainant or his witnesses before taking cognizance where a complaint is filed in writing is for the benefit of the complainant. Apart from that, according to me, the provision for examination of the complainant or his witnesses before taking cognizance where a complaint is filed in writing is for the benefit of the complainant. If he is not examined or his witnesses are not examined and his petition of complaint is dismissed, he can make a grievance but, if the Magistrate taking cognizance finds on reading the petition of complaint in writing that, prima facie, it was a case for taking cognizance the accused cannot make grievance of the order on the ground that the complainant or his witnesses were not examined. The accused will get an opportunity of cross-examining the complainant and his witnesses who are produced at the trial stage and he is not prejudiced in the least by non-examination of the complainant or his witnesses before taking cognizance. In my opinion, therefore, the order taking cognizance in the case out of which Criminal Revision No, 273 of 1975 arises was also not bad in law and the Chief Judicial Magistrate rightly rejected the petition of the petitioners claiming that the entire proceeding was vitiated on account of the said error. 4, The learned Single Judge of the Calcutta High Court also does not appear to be correct in taking the view that the Magistrate must record in his order that no witness was present. The fact whether witnesses are present or not can be ascertained from materials otherwise on the record, for, when-ever witnesses are produced, their hazries are filed, or when witnesses are produced at the time of filing petition of complaint, that fact is noted in the petition of complaint itself. Section 200 does not require that the Magistrate should record in the ordersheet the fact that witnesses are not present, and, in absence of such words in the section, it cannot be said that the Magistrate's order taking cognizance is bad for the reason that he has failed to record whether witnesses are present or not. Section 200 does not require that the Magistrate should record in the ordersheet the fact that witnesses are not present, and, in absence of such words in the section, it cannot be said that the Magistrate's order taking cognizance is bad for the reason that he has failed to record whether witnesses are present or not. In the present case, however, it appears from the petition of complaint, as has been noted by the Chief Judical Magistrate, that there was a prayer for summoning the witness which indicated that the wiinesses were not present there on that date and, in the circumstances, the Chief Judical Magistrate has rightly taken the view that, as no witnesses were present that day, there was no question of examining them. 5. When Mr. Verma placed reliance on the decision of a learned Single Judge of the Calcutta High Court in the case of Jitendra Natk Mitra (supra), he was not aware of a recent Special Bench decision of the Calcutta High Court in the case of Tara Dutta Vs. State of West Bengal and another3 1975 CWN 996 (SB) - The case is reported in the issue dated September 1, 1975. The Special Bench has expressly overruled the decision in Jitendra Nath Mitra's case and the learned Judges have observed that they were not prepared to hold that there is any obligation on the part of the Magistrate to make enquiries about the witnesses present in Court when the statute does not provide for such an obligation. It bas further been held that it was not •necessary for the Magistrate to record in the ordersbeet that no witness on behalf of the complainant was present and, therefore, he could not be examined. 6. For the foregoing reasons, I find no merit in these revision applications and they are accordingly dismissed. Applications dismissed.