K. P. JAYARAMA REDDY v. G. PARAMESWARAPPA — 1980 DIGILAW 353 (KAR)

N. D. VENKATESH, J. ( 1 ) THIS petition, filed under S. 397 read with S. 401 of the Cr. P. C. , 1973, is directed against an order dated 17-11-78 of the Metropolitan magistrate, VI Court, Bangalore City, in C. C. No. 1994 of 1978 on his file, ( 2 ) THE proceeding in C. C. No. 1994 of 1978 has been initiated against these petitioners, who are accused therein, at the instance of the respondent and on his complaint under S. 200 Cr. P. C. ( 3 ) THE respondent, at the relevant time, was the Professor and Head of the Department of Electrical Engineer- ing in the Visveswaraya College of engineering, Bangalore. The petitioners were Members of the Senate, bangalore University. According to the complainant the petitioners had submitted jointly a representation to the Governor of Karnataka making therein several false and malicious allegations against him with the intention of damaging his reputation. It is his case that the said allegations had also received wide publicity in the Press in karnataka State. In the complaint lodged by him against these petitioners and others he had requested the Court to take action against ,the accused for offences punishable under Ss. 500, 501 and 502 I. P. C. ( 4 ) THE learned Magistrate, who proceeded under Chapter XV of the Cr. P. C. , has, by his order referred to above, registered a case against the petitioners for offences under Ss. 500 and 501 IPC. , and directed issue of summons to them. While challenging that order in this petition the learned counsel for the petitioners contends that the order in question directing issue of process against his clients was bad, in that, the learned Magistrate (i) had directed issue of process without taking cognizance of the offences as contemplated under law; (ii) had passed the order mechanically without applying his mind; (iii) had not followed the procedure laid down in the Code of criminal Procedure in this connection; and (iv) that even otherwise his order was illegal and arbitrary. ( 5 ) ON the other hand, the learned counsel for the respondent-complainant supported the order in question and submitted that the same did not call for any interference at all. ( 6 ) I have examined the records of the court below in the light of the submissions made before me by the learned Counsel. ( 5 ) ON the other hand, the learned counsel for the respondent-complainant supported the order in question and submitted that the same did not call for any interference at all. ( 6 ) I have examined the records of the court below in the light of the submissions made before me by the learned Counsel. ( 7 ) THOUGH, as stated above, several grounds have been urged against the order of the learned Magistrate directing issue of process, the only substantial ground that survives for consideration is as to whether the learned magistrate had not correctly followed the procedure laid down in the relevant provisions of the Cr. P. C. , while initiating this step against the petitioners. ( 8 ) THE learned Magistrate has directed issue of process against the petitioners under S. 204 of the Cr. P. C. Before doing so, in the instant case, he had taken recourse to the procedure laid down in S. 200 in order to ascertain as to whether there was sufficient ground for proceeding against the petitioners. ( 9 ) COUNSEL for the petitioners contends that the learned Magistrate had not correctly followed the procedure laid down in S. 200 and, therefore, the whole proceeding culminating in his order directing issue of process is vitiated and is liable to be quashed. S. 200 of the Cr. P. C. , reads like this:"200. Examination of complainant: - 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. "the provisos have no application to the facts of the ca,se. Let us confine ourselves to the main provision and see as to whether the learned Magistrate had not complied with what is contained therein in the instant case. Under S. 200, when a complaint is made to him, the Magistrate, taking cognizance of the offence, has to "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". In the instant case the complainant was examined, upon oath, on 16-10-78. In the instant case the complainant was examined, upon oath, on 16-10-78. The substance of his statement has been reduced to writing, and it is, in fact signed by the Magistrate. The only lacuna is that it is not signed by the complainant. The Counsel for the petitioners argues that this requirement that the sworn statement shall be signed by the complainant is mandatory in nature and that the non-observance of the same is a fatal omission which vitiates the entire proceeding. ( 10 ) BEFORE considering whether the provision in question is mandatory or directory, it is appropriate that we know how in this aspect of interpretation of statutes law has evolved. Touching this question there are several decisions, but let me refer to two of them, 1 oth of the Supreme Court. In the State of Mysore v. V. K. Kangan ( (1976) 2 SCC 895 ) the Supreme Court has observed as follows:"in determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other. "in another decision, rendered a week later (27-8-75), Chandrachud, J:, (as he then was), who was also a party to Kangan's case referred to above, while speaking for the Bench consisting of himseli, Bhagwati, J:, and, sarkana, J. , has observed as follows in Govmdlal Chhaganlal v. Agricultural produce Market Committee godhra ( (1975) 2 SCC 482 )"illustrations abound where the words 'shall' and 'may' are treated as interchangeable. The question as to whether a statute is mandatory or directory depends upon the intent of Legislature and not upon the language in which the intent is clothed. The question as to whether a statute is mandatory or directory depends upon the intent of Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the Legislature but from a variety of other circumstances and considerations. In other words, the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. "2. S. 6 (1) of the Act provides in terms, plain and precise, that a notification issued under the section 'shall also' be published in Gujarati in a newspaper. The word 'also' provides an important clue to the intention of the Legislature. The additional mode of publication prescribed by the law must, in the absence of anything to the contrary appearing from the context of the provision of its object, be assumed to have a meaning and a purpose. " (Head-Note) the Gujarat Agricultural Produce markets Act, 20 of 1964 provided for the prosecution of a person dealing in, certain commodities without obtaining the licence as required by that Act. The commodities concerned had to be notified. S. 5 of that Act provided for the issuance of such notifications and the manner in which the same had to be published. Sub-sec. (1) of S. 5 of that Act provided that the notification including a particular agricultural produce, as coming within the regulations of the Act, had to be notified in the official Gazette. S. 5 of that Act provided for the issuance of such notifications and the manner in which the same had to be published. Sub-sec. (1) of S. 5 of that Act provided that the notification including a particular agricultural produce, as coming within the regulations of the Act, had to be notified in the official Gazette. It further provided that "such notification shall also be published in Gujarati in a newspaper having circulation in the area and in such other manner as may be prescribed". The accused in that case pleaded that since that notification concerning that agricultural produce had not been published in Gujarati, as provided in sub-sec. (1) of S. 5, the same cannot be said to have come into force and, therefore, no prosecution can be founded upon its alleged breach. This plea found favour with the trial court. But the high Court, in appeal, had reversed that finding. After considering all aspects of the matter, including the intention of the Legislature, the supreme Court has observed, as above, that the provision contained in sub- sec. (1) of S. 5 of that Act, by. which the notification issued was also required to be published in Gujarati newspaper, was mandatory and not directory. ( 11 ) IN the light of the above observations let us examine as to whether this requirement that the sworn statement of the complainant should be signed by him is mandatory or not. The guide lines stipulated in s. 200 are the guidelines to be taken note of by the Magistrate while taking cognizance of an offence on a complaint. On taking cognizance of the offence if the Magistrate decides to issue process, the accused against whom process is issued is called upon to appear before court to answer the accusation or charge levelled against him. If the Magistrate takes cognizance upon a police report, the report of the police would be based on investigation made by a public officer in accordance with law. In case of private complaints the Magistrate has to form his opinion solely on the basis of the sworn statement of the complainant and his witnesses, and; in many a case, he will have to form his opinion entirely relying on the sworn statement of the complainant himself. In case of private complaints the Magistrate has to form his opinion solely on the basis of the sworn statement of the complainant and his witnesses, and; in many a case, he will have to form his opinion entirely relying on the sworn statement of the complainant himself. Having regard to the consequences that may ensue on reliance being placed on the sworn statement of the complainant the law enjoins that the person who swears to his complaint under S. 200 or others who support hjs case by their sworn statements would not do so light-heartedly or with any ulterior motive. That is why S. 200 provides that the makers of such sworn statements should sign the statements they may make before the magistrate. This is to assure that at that stage the complainant and his witnesses will not try to abuse the process of the Court or will not make false, frivolous, or vexatious complaints in order to harass persons who are not well disposed of towards them. Also, if the complainant, who will have made such a statement, rescinds from the same at a later stage, the earlier statement can be a basis to prosecute him for perjury. This would be a deterrent against false complaints. If the requirements of S. 200 are considered in this background it is clear that the Legislature intended these requirements aa not mere formalities or curable irregularities but as ones to be, observed strictly by the Magistrate while taking cognizance of offences. ( 12 ) IN the instant case since the the learned Magistrate has proceeded to issue process on the basis of the sworn statement not signed by the complainant that order deserves to be quashed. ( 13 ) THEREFORE, the petition is allowed. The order dated 17-11-1978 of thecourt below registering a case against the petitioners and ordering issue of process against them is hereby set aside. --- *** --- .