Rajarathinam v. Ananthanarayanan and others — 1978 DIGILAW 164 (MAD)

Order.- This is a petition under section 482 of the Criminal Procedure Code, for directing the Judicial Second Class Magistrate, Porto Novo to treat the case C.C. No. 2421 of 1976 as a Preliminary Register Case. 2. The petitioner filed a criminal complaint before the learned Judicial Second Class Magistrate of Porto Novo against the respondents. In complaint he has alleged as follows: On 26th July, 1976 at about 7-15 a.m., the complainant and his brother Vadivelu were attacked by the third accused and his men with koduwal and with sticks etc. and injuries were caused to the complainant and his brother; whereupon, the complainant went and reported the matter to the police who thereupon sent him and his brother to the hospital where they were treated till 6th August, 1976 and on 8th August, 1976 when the complainant was going to his doctor as he was having headache and was passing by the house of the third accused all the accused were standing in the front of the house and on seeing him accused 3, 5 and 6 dragged him into the house of the third accused and the other accused followed them into the house and there they wrongfully confined him and the accused 4 and 9 stood at the entrance of the house in order to prevent the complainant from going out and then the third accused told the others that a pronote for Rs. 2,000 should be obtained from the complainant since on account of the complainant they have been put to expenses. Whereupon the first accused wrote out a pronote in favour of the fifteenth accused for Rs. 2,000 should be obtained from the complainant since on account of the complainant they have been put to expenses. Whereupon the first accused wrote out a pronote in favour of the fifteenth accused for Rs. 2,000 and affixed a stamp to it and asked the complainant to affix his signature to it; but the complainant refused; whereupon the first accused brought a koduwal and handed it over to the third accused who thereupon threatened to cut the complainant down if he had not affixed his signature to the document and hence cut of fear the complainant affixed his signature to that document which was then attested by accused 12 to 14 and the pronote was then signed by the first accused and handed over to the fifteenth accused and the third accused after threatening to kill the complainant if he gave information to the police let him go and thereby the accused have committed an offence punishable under section 395, Indian Penal Code. 3. It might be noted that such a complaint was presented on 9th August, 1976, but the Magistrate sent it to the police for enquiry, apparently under section 156, Criminal Procedure Code, but the police however have referred that case and hence the petitioner-complainant filed the complaint on the same facts, on 15th November, 1976. The Magistrate recorded the sworn statement of the complainant and took the case on file. The complainant then examined himself and another witness on his side; and eventually the learned Magistrate framed a charge against the accused only for an offence under section 384, Indian Penal Code to which the accused pleaded not guilty. 4. The petitioner’s grievance is, first of all, that even though the allegations in the complaint, the sworn statement and the evidence of P.Ws. 1 and 2 clearly disclosed an offence under section 395, Indian Penal Code, which is triable exclusively by a Court of Sessions, the Magistrate erred in framing a charge only for an offence under section 384, Indian Penal Code, and secondly the learned Magistrate has not correctly followed the procedure laid down by the Code and had not held an enquiry under section 202, Criminal Procedure Code, as he was bound to do; and under these circumstances a direction should be given to the Magistrate to treat the case as a Preliminary Register Case. 5. 5. No doubt the allegations in the complaint do disclose an offence under section 395, Indian Penal Code, triable exclusively by a Court of Sessions. But then merely because of those allegations, the Magistrate is not bound to treat the case as one exclusively triable by the Court of Sessions. Section 208, Criminal Procedure Code, state that 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 Sessions, 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 204, -of all persons examined by the Magistrate; (ii) the statements and confessions if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely. Section 209 states that 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 Sessions, he shall commit the case to the Court of Sessions, etc. Therefore both the sections enjoin that it should appear to the Magistrate that the offence is triable exclusively by the Court of Sessions. Only then he is bound to proceed under sections 208 and 209. It should also be noted that the procedure prescribed under these two sections follow the issue of process to the accused under section 204. We are not on the question as to whether on the materials it should appear to the Magistrate that the offence is triable exclusively by the Court of Sessions and whether the Magistrate on the materials erred in not applying his mind to the question and hence it did not appear to the Magistrate that the offence was exclusively triable by the Court of Sessions. The Magistrate can still under section 323, Criminal Procedure Code, at any stage of the proceedings commit the case to the Court of Sessions, if it appears to him that the case is one that ought to be tried by the Court of Sessions. The Magistrate can still under section 323, Criminal Procedure Code, at any stage of the proceedings commit the case to the Court of Sessions, if it appears to him that the case is one that ought to be tried by the Court of Sessions. Therefore it is still open to the Magistrate after the entire evidence is let in to apply his mind as to whether the case is one which ought to be tried by the Court of Sessions and if it appears to him then that the case is one which, ought to be tried by the Court of Sessions he could still commit the accused. Such being the case, the petitioner cannot now invoke at this stage the inherent powers of this Court under section 482, Criminal Procedure Code and ask this Court to direct the Magistrate to treat the case as a Preliminary Register case and commit it to the Court of Sessions. 6. The contention of the learned Counsel for the petitioner that inasmuch as section 208, Criminal Procedure Code, enjoins the Magistrate to furnish to the accused in cases where it appears to the Magistrate issuing process under section 204, that the offence is triable exclusively by the Court of Sessions the statements recorded under section 200 or section 202 of all persons examined by the Magistrate etc., etc., impliedly it was obligatory on the part of the Magistrate to hold an enquiry under section 202, Criminal Procedure Code, in cases where the complaint discloses offences exclusively triable by the Court of Sessions, cannot be accepted. The learned Counsel for the petitioner has cited the decision of Krishnaswamy Reddy, J., in Paranjothi Udayar v. State and others1. The learned Counsel for the petitioner has cited the decision of Krishnaswamy Reddy, J., in Paranjothi Udayar v. State and others1. Referring to proviso to sub-section (2) of section 202, Criminal Procedure Code, the learned Judge has observed that the proviso to clause (2) is very important as it lays down a special procedure in respect of the offences complained of which are exclusively triable by the Court of Sessions, and has observed that if it is an offence other than the offences triable exclusively by the Court of Sessions discretion is given to the Magistrate sunder clause (2) to take evidence of witnesses on oath, if the Magistrate thinks fit, but the proviso does not give such a discretion to the Magistrate in respect of an offence triable exclusively by the Court of Sessions and in such cases the proviso makes it mandatory that the Magistrate shall call upon the complainant to produce his witnesses and examine them on oath and that once it appears to the Magistrate that the offence complained of is friable exclusively by the Court of Sessions, he shall require the complainant to produce all his witnesses and examine them on oath. After referring to the scope and object of section 208. Criminal Procedure Code, the learned Judge has observed that a reading of the proviso to clause (2) of section 202 together with section 208(1) would clearly show that on a complaint before the Magistrate where it appears that the offence is exclusively triable by the Court of Sessions, the statements of all the witnesses produced by the complainant must be recorded and the copies of such statements of all the witnesses so recorded shall be furnished to the accused free of cost and similarly a copy of any statement recorded under section 200 of the Code by the Magistrate shall also be furnished to the accused; and these provisions are mandatory. 7. Relying on these observations, the learned Counsel for the petitioner has argued that where the complaint discloses an offence triable exclusively by the Court of Sessions, it is mandatory on the part of the Magistrate to hold an enquiry under section 202, Criminal Procedure Code. After very carefully reading the judgment of Krishnaswamy Reddy, J., I am not sure that the learned Judge has laid down such a proposition. After very carefully reading the judgment of Krishnaswamy Reddy, J., I am not sure that the learned Judge has laid down such a proposition. He has reiterated the words "if it appears" during the course of his judgment. Therefore only if it appears to the Magistrate that an offence exclusively triable by the Court of Sessions is disclosed that the Magistrate is bound to hold an enquiry under section 202. Likewise, sections 208 and 209 also use the expression "it appears to the Magistrate". Moreover, sections 208 and 209 would apply only when process has been issued to the accused. In this case, the Magistrate had issued process under section 204 and thereafter he has to proceed under Chapter XVI; and if at any stage it appears to the Magistrate that the case is one which ought to be tried by the Court of Sessions then he shall commit to that Court under section 323, Criminal Procedure Code. When that course is still open, the petitioner cannot now invoke the inherent powers of this Court and ask ‘for a direction to the Magistrate to enquire into the case as a preliminary register case. 8. In P.R. Murugaiyan v. Jayaveera Pandia Nadar1, this Court has observed that the word "appear" is frequently used in judicial proceedings as meaning ‘clear to the comprehension’ where applied to matters of opinion or reasoning, and ‘satisfactorily or legally known or made known’ when used in reference to facts of evidence; and when a statute requires that that a certain conclusion is being made to appear as a ground for proceeding by any tribunal, facts from which that conclusion follows must be proved; and the word ‘appears’ is commonly used in two senses, in one sense, it means ‘manifest, obvious or proved’ and in the other, it means ‘seems’. It was further observed in that decision that in view of the meaning of the word ‘appears’ given above, if we read sections 202, 208 and 209, where the word ‘appears’ occurs, it would mean that the Magistrate has to apply his mind and satisfy himself subjectively; and as" these words ‘it appears to the Magistrate’ appear at three stages as mentioned supra, in proceedings instituted otherwise than on a police report, the same words appearing in section 209 are redundant so far as proceedings on private complaints are concerned. Ratnavel Pandian. Ratnavel Pandian. J., recommended in that decision that it is always desirable in case instituted on complaints that while the Magistrate takes cognizance of offences triable exclusively by the Court of Sessions, he should follow the procedure laid down under section 202 of the Code which serves the purpose of a preliminary enquiry, as that alone would be sufficient safeguard to the accused before the Court resorts to section 204. 9. In Nathan v. Vaidyanath and others1, this Court held that by reason of section 397 (2) of the Criminal Procedure Code, 1973, the powers of revision conferred by sub-section (1) of section 397 shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. In a case where the bar under section 397(2), Criminal Procedure Code would operate, that bar cannot be circumvented by having recourse to section 482, Criminal Procedure Code. On this ground, the request made by the petitioner in this petition cannot be granted. 10. Mr. Gopinath, learned Counsel for the petitioner has argued that the Magistrate framing a charge only for an offence under section 384, Indian Penal Code, would amount to an implied discharge of the accused for an offence under section 395, Indian Penal Code. But then in such a case it is for the petitioner to move under the relevant provisions for setting aside the implied order of discharge. I therefore find no ground to issue such a direction as has been prayed for by the petitioner. This petition is therefore dismissed.