M. Kunhayisu v. P. Kallyani — 1986 DIGILAW 92 (KER)

Judgment :- Petitioners 3 in number are the accused in C.C. No. 162/1985 on the file of the Judicial First Class Magistrate's Court, Badagara. They seek to quash all proceedings in the said case. The grounds alleged by the petitioners for quashing the proceedings before the court below are :- (i) Violation of the provisions contained in Section 200 of the Code of Criminal Procedure and (ii) The complaint does not make out an offence. 2. The ground on which the petitioners contend that there is violation of the provisions contained in Section 200 of the Code of Criminal Procedure is that the learned Magistrate while taking cognizance of the complaint has not stated whether any witness was present or not. According to counsel, if any witness was present in court the Magistrate should have examined him and the substance of such examination should have been reduced to writing. The learned Magistrate thereupon ought to have considered the said evidence of the witness and then only ordered issue of process. In case no witness was present the learned Magistrate ought to have noted that fact in the order sheet. If the absence of the witness is not so noted in the order sheet, according to counsel it will vitiate the entire proceeding and this court should quash the proceeding on that sole ground. In support of this argument the learned counsel relies on the decisions reported in Ramaswami Nadar v. Viswanathan, 1957 Cri LJ 673 : (1957) 1 Mad LJ 157, Mac Culloch v. State, 1974 Cri LJ 182 (Cal) & Brahmanand Goval v. N. C. Chakraborty, 1974 Cri LJ 1079 (Cal). 3. In the first decision above cited, a complainant whose complaint was dismissed by the Magistrate without examining the witnesses present in court along with the complainant approached the High Court in revision. It was contended by the complainant before the High Court that the provisions of Sections 200 and 203 have not been complied with, that is that he was present with the witnesses at the time when he presented the complaint, that the witnesses were not examined on oath and that the substance of their examination has not been reduced to writing by the Magistrate. On the basis of the representation made by counsel the learned Judge took it that there were two witnesses present along with the complainant and under S. 200 of the Code, the Magistrate should have examined the complainant and the witnesses present on oath. Since this procedure had not been followed it was found that the complainant has got a grievances. While dealing with this aspect it was observed: "The section is mandatory and it is therefore obligatory on the part of the Magistrate to examine not only the complainant but also the witnesses who are present in Court. The Magistrate in future will do well in asking the complainant as soon as he is examined on oath whether any witnesses are present in court and if witnesses were present, it is his duty to examine them on oath; but if no witnesses were present, he will do well to mention in the order itself, that no witnesses were present according to statement of the complainant or the advocate who appeared in court." In that case the complainant asserted before the High Court that he had two witnesses with him when he gave his sworn statement before the Magistrate. The Magistrate dismissed the complaint without examining the witnesses. There was no written order showing the presence of the witness in court. So the High Court had to rely on the submissions made at the bar to come to the conclusion that two witnesses were present in court along with the complainant. It was under these circumstances, the learned Judge made the observations quoted above. 4. In the second decision cited by the learned counsel referred to earlier, the learned Magistrate took cognizance of a complaint after recording the sworn statement given by the complainant. The accused moved the High Court for quashing the complaint on the ground that there was non-compliance with the mandatory provisions of S. 200 of the Code in as much as learned Magistrate while taking cognizance of the offence did not examine the witnesses present along with the complaint. It was contended by the complainant that there has been no non-conformances to S. 200 of the Code in as much as there was no material on record to establish that witnesses were present on the occasion of taking cognizance of the offence, along with the complainant. It was contended by the complainant that there has been no non-conformances to S. 200 of the Code in as much as there was no material on record to establish that witnesses were present on the occasion of taking cognizance of the offence, along with the complainant. On the materials before court the High Court came to the conclusion that other witnesses were not present in court along with the complainant on the date when cognizance was taken and process were issued. Since the learned Magistrate had not stated in his order that no witness was present in court along with the complainant the learned single Judge of the Calcutta High Court took the view that the proceedings have been vitiated and any further continuances thereof would be an abuse of process of the court. 5. In the last of the abovementioned decisions the accused approached the High Court for quashing the complaint on the ground of non-conformance to the provisions of S. 200 of the Criminal Procedure Code based on the non-examination of any other prosecution witness besides the complainant at the time of taking cognizance by the Magistrate. Division Bench of the Calcutta High Court dealing with this contention observed : "The principle laid down is if no such witness on behalf of the prosecution be present at the time of taking cognizance the learned Magistrate cannot take down their evidence but will have to record in the order sheet that no such prosecution witnesses were present on the occasion. Otherwise, the cognizance would be bad and improper vitiating the entire proceedings." In the above view the proceedings initiated by the Magistrate on taking cognizance of the complaint were quashed, solely on the ground that the Magistrate had not recorded that no witness for the complainant was present at the time when the Court ordered to issue process. 6. As per S. 200 of the Code of Criminal Procedure the Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. What the section states is that the Magistrate has to examine the witnesses, if any, present in Court. In other words, if no witness is present in Court the Magistrate can issue the process after recording the sworn statement given by the complainant alone. The decisions cited at the bar do not state anything to the contrary. What the section states is that the Magistrate has to examine the witnesses, if any, present in Court. In other words, if no witness is present in Court the Magistrate can issue the process after recording the sworn statement given by the complainant alone. The decisions cited at the bar do not state anything to the contrary. The decisions of the Calcutta High Court only state that if witnesses are present in the Court, the Magistrate is bound to examine them and in case if no witness is present, that fact should also be recorded. That is, if in a case the complainant had not produced any witness in Court and that fact is not recorded in the order sheet while issuing process it will vitiate the entire procedure. In other words, the decisions will have the effect of stating that the validity or otherwise of the order taking cognizance of the complaint will depend on the Magistrate recording the absence of witnesses when witnesses are not present. 7. The object of enacting Sections 200 to 203 has to be borne in mind. The purpose of the examination of the complainant and his witnesses if any, is to ascertain whether there is prima facie case against the person accused of the offence in the complaint. It is to prevent issue of process on complaints which are either false or vexatious or intended only to harass the person named in the complaint. In order words, the said examination is to find out whether there is sufficient ground to proceed further in the matter. Under S. 202, a Magistrate on receipt of a complaint may postpone the issue of process and either enquire into the case himself or direct an enquiry to be made by a Magistrate subordinate to him or by a police officer for ascertaining its truth or falsehood. In Vadilal Panchal v. Dattatraya Dulaji, AIR 1960 SC 1113 : (1960 Cri LJ 1113). Their Lordships considered the scheme of Sections 200 to 203 and held that the enquiry envisaged therein is for ascertaining the truth or falsehood of the complaint, that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. Their Lordships considered the scheme of Sections 200 to 203 and held that the enquiry envisaged therein is for ascertaining the truth or falsehood of the complaint, that is for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process. The section does not say that regular trial for adjudging the truth or otherwise of the person complained against should take place at that stage; for such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. To the same effect is in the decision in Chandra Deo Singh v. Prokash Chandra, AIR 1963 SC 1430 : (1963 (2) Cri LJ 397). Their Lordships held that where there was prima facie evidence, even though, the person charged of an offence in the complaint might have defence, the matter had to be left to be decided by the appropriate forum at the appropriate state and issue of a process cannot be refused. Unless, therefore, the Magistrate finds that the evidence let before him is self contradictory or intrinsically, untrustworthy process cannot be refused if that evidence makes out a prima facie case. In Nirmaljit v. State of West Bengal, AIR 1972 SC 2639. Their Lordships of the Supreme Court stated that "where a complaint is presented before a Magistrate he can under S. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses". This observation has been relied by the Calcutta High Court is support of the stand that the Magistrate must make a note in the order that witnesses are not present in case the Magistrate is not examining any witness. The above quoted observation of the Supreme Court does not support such a view because their Lordships specifically stated that the purpose of the examinations only to ascertain whether there is a prima facie case against the person accused of the offence in the complaint or not. That is to be decided in a judicial manner. The said judicial exercise cannot depend on the noting as to whether the witnesses are present or not. Thus it is clear that before issuing process in a case initiated on complaint the Magistrate has to find whether the complaint makes out a prima facie case or not. That is to be decided in a judicial manner. The said judicial exercise cannot depend on the noting as to whether the witnesses are present or not. Thus it is clear that before issuing process in a case initiated on complaint the Magistrate has to find whether the complaint makes out a prima facie case or not. In case, such a prima facie case is made out by the complainant by examining himself the Magistrate will be justified in issuing process. This exercise of judicial discretion cannot be made to depend on his making a note in the order sheet that no witnesses are present for the complainant in Court. It will be better if the Magistrate mentions in the order that no witness was present in Court. But the non-mention of that fact in the order cannot be taken as a ground to quash the proceeding initiated by the Magistrate. Thus I find no merit in the first contention urged by the learned counsel for the petitioners. 8. Petitioners have produced copies of the complaint and of the sworn statement given by the complainant as Annexures A and B. They clearly bring out an offence. Whether the complainant will be in a position to prove the offence beyond reasonable doubt or not is not a matter to be gone into by this Court at this stage. When an offence is made out in the complaint, this Court is not to quash the same in exercise of the jurisdiction under S. 482 of the Code of Criminal Procedure (Vide Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : (1983 (1) SCC 1). In view of what has been stated above, I find no merit in this petition. It is accordingly dismissed. Petition dismissed.