Research › Browse › Judgment

Madras High Court · body

1978 DIGILAW 387 (MAD)

Smt. Kiran Bhatia v. Lachma

1978-06-22

M.S.NESARGI

body1978
Order.- This petition is filed under section 482 of the Code of Criminal Procedure. The order dated 6th December, 1977 passed by the Chief Judicial Magistrate, Raichur, in C.C. No. 599 of 1977 taking cognizance of the offences under sections 348 and 352 of the Indian Penal Code and issuing process against the petitioner is challenged. 2. Sri P.S. Devadas, learned Advocate appearing on behalf of the petitioner, is permitted to argue this petition as if it is a criminal revision petition in view of the fact that the law as to whether such orders are hit by section 397(2) of the Code of Criminal Procedure has been recently settled and it has been held that they are not so hit. 3. The facts necessary for this petition may be narrated briefly as follows: Respondent-Lachma was working as a servant in the house of the Special Deputy Commissioner, Sri Bhatia, Raichur: She appeared before the Chief judicial Magistrate at 11 a.m. on 6th November, 1977 and orally complained to him about certain offences said to have been committed by the petitioner Smt. Bhatia. The Magistrate recorded in his own hand what all she stated and endorsed below the recording as follows: “..................................... * * * LTM of Lachama. Reduced to writing as state by complainant by me on 6th December, 1977. Sd./- * * * 6th December, 1977”. Thereafter he recorded as follows: “.................” Before me Sd/-. * * * LTM of Lachama”. CJM 6-12-1977. 4. Thereafter the learned Magistrate got the case registered and issued the process. 5. Sri P.S. Devadas, learned Advocate appearing on behalf of the petitioner, firstly argued that reading of the contents of the complaint, reduced to writing by the learned Magistrate, would clearly show that contradictory versions are available in it and that the narration suffers from improbability and artificiality,. He urged that in view of these defects, the learned Magistrate ought not to have decided to take cognizance of the offences. 6. It is not the contention of Sri Devadas that the facts contained in the complaint recorded by the learned Magistrate do not make out ingredients of the offences under sections 348 and 352 of the Indian Penal Code. 7. 6. It is not the contention of Sri Devadas that the facts contained in the complaint recorded by the learned Magistrate do not make out ingredients of the offences under sections 348 and 352 of the Indian Penal Code. 7. Now it is to be seen whether this Court can, in exercise of its revisional jurisdiction, examine the contents of a complaint to find out whether a Magistrate who is empowered to take cognizance of an offence could have been satisfied or not. The Supreme Court has in Nagawwa v. Veeranna1, specifically dealt with this aspect of the matter. It has held that the Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even the Supreme Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if approved, would ultimately end in conviction of the accused. Hence, I reject (his contention of Sri Devadas. 8. Sri Devadas nextly argued that section 200 of the Code of Criminal Procedure mandatorily prescribes that before a Magistrate orders issue of process, he has to examine upon oath the complainant and the witness present, if any. He argued that in the case on hand, all that is available is a verification statement of the respondent-complainant and hence it is clear that the Magistrate has not examined the complainant on oath and therefore he had no power to order issue of process. 9. What is examination on oath is not specifically provided in the Code of Criminal Procedure. Therefore, what is an oath has to be understood with reference to the provisions of the Oaths Act (XLIV of 1969). This is one aspect of the matter. 9. What is examination on oath is not specifically provided in the Code of Criminal Procedure. Therefore, what is an oath has to be understood with reference to the provisions of the Oaths Act (XLIV of 1969). This is one aspect of the matter. The other aspect is whether, under the facts and circumstances of this case, the way in which the Magistrate has recorded below the complaint, as narrated in one of the preceding paragraphs, satisfies the requirements of section 200 of the Code of Criminal Procedure and even if it does not, when looked from a technical point of view, satisfies the ingredients of section 200 of the Criminal Procedure Code, it amounts to an irregularity curable under section 465 of the Criminal Procedure Code. 10. The words “...................” make it abundantly clear that what is stated below namely, after the use of the word “..........” means the truth “........” is nothing but taking oath. Sri Devadas laid stress on the words “verification statement” appearing there. I am not inclined to attach much importance on the occuring of these words. Therefore, the manner in which the recording has gone on discloses that oath had been administered to the respondent. 11. Even if it is for the sake of arguments considered that it is not a statement on oath but is only on solemn affirmation,, it is seen that under the provisions of the Code of Criminal Procedure, 1898, various High Courts have differed in the view. Some High Courts have held that it amounts to an irregularity unless prejudice is shown to have been caused to the accused and that if at all prejudice is caused, it is caused to the complainant and not to the accused. The other High Courts have held that it is violation of the mandatory provision and as such that the order directing issue of process would be bad in law. 12. In all those cases the complaint made before the Magistrate was a written complaint. In the case on hand the complaint made by the respondent was oral and the Magistrate himself has reduced it to writing under his endorsement that it has been recorded as narrated by the complainant. It is thereafter the learned Magistrate has proceeded to record that portion, which is attacked by Sri Devadas. In the case on hand the complaint made by the respondent was oral and the Magistrate himself has reduced it to writing under his endorsement that it has been recorded as narrated by the complainant. It is thereafter the learned Magistrate has proceeded to record that portion, which is attacked by Sri Devadas. Therefore, the contention of Sri Devadas tantamounts to arguing that the Magistrate, ought to have, after recording that the complainant was stating “........”, rewritten what he had already written in his own hand. Hence, under the facts and circumstances of this case, the contention of Sri Devadas is on the basis of a mere technicality. In that view of the matter, the principle laid down by the Supreme Court in Chittaranjan Das v. State of West Bengal1, while dealing with sections 535 and 537 of the Code of Criminal Procedure, 1898, would be attracted, as section 495 of the Criminal Procedure Code, 1898 replaces section 537 of the Criminal Procedure Code, 1898. In the said decision, it is held as follows: “Requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537, Criminal Procedure Code”. 13. In view of the foregoing, I am unable to accept the arguments advanced by Sri P.V. Devadas, learned Advocate, for the petitioner and hence dismiss the petition.