JAI NATH v. STATE OF U. P. — 1987 DIGILAW 594 (ALL)

B. L. YADAV, J. ( 1 ) THIS revision under sections 397/401 of the Code of Criminal Procedure, 1974, (for short the Code), has been filed against the order dated 16-12-1986 passed by the learned Magistrate taking cognizance and issuing process for the offence under sections 307/427, I. P. C. against the applicant. This order purports to have been passed under section 190 of the Code. ( 2 ) SRI D. S. Tiwari, learned counsel for the applicant strenuously urged that the offence under section 307, I. P. C. was exclusively triable by the Court of Sessions, hence in view of second proviso to section 202 of the Code unless the Magistrate directs the complainant to examine all the witnesses and all the witnesses have been examined, the order issuing process against the accused was erroneous. It was next urged that even though a protest petition was filed, but on that basis the cognizance cannot be taken nor process can be issued, unless the procedure provided in the second proviso to section 202 of the Code was followed. Reliance was placed on Chandrashekhar and others v. State of U. P. , Ahibaran Singh v. State of U P. and others2, and Mumtaz and others v. State of U. P. and others3. ( 3 ) LEARNED counsel for the opposite parties, on the other hand, urged that the cognizance has been taken under section 191 (b) of the Code and for taking cognizance under section 191 (1) (b) it was not necessary to follow the procedure provided under section 202 (2) (second proviso) of the Code as the procedure under section 202 can be followed only if the Magistrate postpones the issue of process, and in case he has issued process under some other provisions, the procedure under section 202 will not be followed. ( 4 ) THE point for consideration is as to whether the procedure under section 202 (2) (second proviso) was mandatory and whether no cognizance can be taken and process issued unless the Magistrate directs the complainant to examine all the witnesses whose names have been given in the list of witnesses? The next point is whether in the instant case cognizance has been correctly taken and process has correctly been issued? ( 5 ) THESE points being interlinked, can be considered together. Section 202 is captained by the words postponement of the issue of process. The next point is whether in the instant case cognizance has been correctly taken and process has correctly been issued? ( 5 ) THESE points being interlinked, can be considered together. Section 202 is captained by the words postponement of the issue of process. T It is accordingly clear that after the receipt of relevant papers, may be complaint etc. in case after perusal of the same the Magistrate postpones the issue of process, only then the provisions under section 202 (two hundred and two) of the Code has to be followed. In case the Magistrate does not postpone the issue of process after taking cognizance under section 190, he can straightway issue process. Sections 190 and 202 of the Code have to be read together. Section 190 has been placed under Chapter XIV (fourteen) (Conditions requisite for initiation of proceedings ). Ex Abundanti Cautela, statutory provisions of section 190 are set out below: 19o Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitutes such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed: (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to enquire into or try. ( 6 ) A bare reading of the aforesaid provision indicates that section 190 is captained with the words cognizance of offences by the magistrate. Further section 190 opens with the condition subject to the provisions of this Chapter. Whereas sections 200 to 203 are placed under Chapter XV (Complaints to Magistrates ). Section 204 (issue of process) occurs under Chapter XVI, which deals with the commencement of proceedings before the Magistrates. Section 190 is, therefore, only subject to the provisions of Chapter XLV (Fourteen) and not Chapter XV (Fifteen) which contains section 202. In case the Magistrate prima facie feeling satisfied takes cognizance under section 190, he can straightway issue process. Section 204 (issue of process) occurs under Chapter XVI, which deals with the commencement of proceedings before the Magistrates. Section 190 is, therefore, only subject to the provisions of Chapter XLV (Fourteen) and not Chapter XV (Fifteen) which contains section 202. In case the Magistrate prima facie feeling satisfied takes cognizance under section 190, he can straightway issue process. It is only when on the materials before him he feels some doubt and wants to postpone the issue of process, only then procedure under section 202 would be applicable. This interpretation appears to be consistent with the manifest purpose of legislation. ( 7 ) IN Nokan v. Doncaster Amalgamated Collieries Ltd4, it was held as follows: If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. ( 8 ) IN Shannon Realities Ltd. v. Ville de St. Michel5, it was observed: Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. ( 9 ) THE manifest purpose of legislation in enacting section 190 was that after the police report and complaint or protest petition was received, what should be done by the Magistrate, the legislature considered proper that either on the receipt of complaint of facts which Constitutes, such an offence of on the receipt of police report of such facts or upon any information received from any person, the Magistrate may take cognizance of the offence. This was effected with a view that the police must not be given the sole authority to decide as to when the proceeding can be initiated in a court against the certain accused. This was effected with a view that the police must not be given the sole authority to decide as to when the proceeding can be initiated in a court against the certain accused. Even though the police may submit a report that no offence has been made out or the statement of witnesses under section 161 was not sufficient to constitute an offence, in other words, in case the police submits a final report or the papers, as indicated under section 173, still the final authority has been given to the judicial discretion, of the Magistrate to take cognizance. In case the cognizance has been taken either on the complaint of facts which constitutes such offence or upon a police report of such facts the procedure provided under section 202 (2) need not be followed. In the instant case after the receipt of final report from the police, the Magistrate on perusal of the same and after applying his judicial mind, decided to take cognizance. It may be stated that it was open to him after perusal of the final report either to accept it or to reject it. No reasons in detail were required to be given either for accepting the same or for rejecting it. In the instant case he chose to indicate that he was taking cognizance and consequently he issued process by rejecting the final report. It cannot, therefore, be said that the Magistrate did not apply his mind to the police papers or the final report or that he must have followed the procedure provided under section 202 (2) second (proviso) as that is the procedure to be followed only when the Magistrate postpones the issue of process. The Magistrate in the instantcase did not postpone the issue of process, rather immediately after taking cognizance he directed for the process to be issued. It was also sought to be argued by the learned counsel for the applicant that the cognizance appears to have been taken under section 190 (1) (c ). But no information appears to 4ave been given to him except that a protest petition or complaint was filed. But in this case I am of the view that the cognizance was taken under section 190 (1) (b) and not under section 190 (1) (c ). But no information appears to 4ave been given to him except that a protest petition or complaint was filed. But in this case I am of the view that the cognizance was taken under section 190 (1) (b) and not under section 190 (1) (c ). (See S. H. Bains v. State, Union Territory of Chandigarh6), where it was held that in such a situation the cognizance would be deemed to have been taken under section 190 (l) (b) and not under section 190 (1) (c ). ( 10 ) AS regards the second limb of the argument which is connected with the point discussed above, as to whether without direction the complainant to examine all the witnesses, can the cognizance be taken in a case triable by the Court of Sessions when the complaint has been filed (vide section 202 (2) proviso ). Suffice it to say that in the impugned order also the Magistrate has observed that he was rejecting the final report and was taking cognizance. Section 202 starts with the words postponement of issue of process. It has been provided that if any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance, if he thinks fit, postpone tile issue of process against the accused, and either enquires into the case himself or directs the investigation to be made by a police officer. It is, therefore, manifest that section 202 would be operative only when the Magistrate postpones issue of process and in case he does not do so, then he may straightway issue process on taking cognizance under section 190. In that event the procedure provided under section 202 (2) (proviso) need not be followed. This was, in fact, the intention of the legislature and only in case the Magistrate postpones the issue of process, only then he was required to follow the procedure provided under section 202, in a case exclusively triable by the Court of Sessions. ( 11 ) AS regards the submission that the Magistrate must examine all the witnesses as required by section 202 (2) (proviso), in fact, section 202 (2), proviso is. not couched in such a language as assumed and urged Tby the learned counsel. ( 11 ) AS regards the submission that the Magistrate must examine all the witnesses as required by section 202 (2) (proviso), in fact, section 202 (2), proviso is. not couched in such a language as assumed and urged Tby the learned counsel. I am of the view that it requires to be highlighted that the intention of the legislature in enacting the second proviso to section 202 (2) was clear by the words employed to the effect that the Magistrate shall call upon the complainant to produce all his witnesses. T The argument of the learned counsel for the applicant could have been acceptable only if the second proviso was differently worded. It need not be over emphasized that the function of a court is to interpret and not to legislate. The language employed to express the intention is not that the Magistrate shall examine all the prosecution witnesses nor it is that the Magistrate shall direct the complainant to examine all the witnesses. Rather the words used are that the Magistrate shall call upon the complainant to produce all his witnesses. Much emphasis appears to have been laid by the legislature on the word Thist, which according to grammar is adjective and pronoun with possessive case. In the clause the word his qualifies the witness. According to Websters Third New International Dictionary, the word his connotes relating to him or himself, deemed to him, inherent in him, associated or connected with him. In this case the words This witnesses mean those witnesses who are of the choice of the complainant or those witnesses who can support the case of the complainant or on whom the complainant places reliance. ( 12 ) IT was, therefore, not that the Magistrate must direct the complainant to examine all the witnesses, as suggested by the learned counsel for the applicant, rather only those witnesses may be examined who were of the choice of the complainant, or those witnesses who supported the, prosecution case and in whom the complainant reposes confidence. In case certain number of witnesses have been examined, the Magistrate can put a question as to whether they are the only witnesses out of the list of witnesses given by the complainant, whom he wants to examine, and thereby ascertain the number of witnesses to examined. In case certain number of witnesses have been examined, the Magistrate can put a question as to whether they are the only witnesses out of the list of witnesses given by the complainant, whom he wants to examine, and thereby ascertain the number of witnesses to examined. How to ascertain from the complainant, as to who were I his witnesses, the Code is silent. It has been left by the legislature to the judicial discretion of the Magistrate to ascertain the number of witnesses either in a positive or negative way. ( 13 ) INESCAPABLE corollary of only a certain number of witnesses being examined in a case triable by a Court of Sessions is that under sections 207 and 208 of the Code the Statement of witnesses if any, and other material including police papers would be supplied to the accused before committing the case to the Court of Sessions. This is with a view to facilitate the defence. No other witness other than those examined under section 202 would however be permitted to be examined by complainant before Court of Sessions who were not examined and copies of whose statements were not supplied to the accused. The Court shall have however, power under section 311 of the Code to examine any person as a court witness even though he was not examined by the complainant. I am, therefore, of the view that interpretation placed by the learned counsel for the applicant on section 202 (2) (proviso) is not acceptable. ( 14 ) ADVERTING to the cases relied upon by the learned counsel for the applicant, Ahibaran Singh v. State, (Supra) was a case in which cognizance was taken without considering the actual provisions of section 202 (2) and similarly without taking into account the provisions of section 190. However, the observations made by their Lordships of the Supreme Court while interpreting sections 190,202 and 204 in S. H. Bains v. State (Supra), was also not brought to the notice of the court hence I am constrained to say that the decision in Ahibaran Singhs case was rendered per in curiam. ( 15 ) IN Ferrellel v. Alexander7, it was held as follows: TTIf a decision was given per incuriam, i. e. in ignorance of Statute or other competent authority the court is not bound by it. ( 15 ) IN Ferrellel v. Alexander7, it was held as follows: TTIf a decision was given per incuriam, i. e. in ignorance of Statute or other competent authority the court is not bound by it. ( 16 ) IN Jaisri Sahu v. Rajedewan Dubey and others8, an observation of Halsburys Laws of England, III Edn. , Vol. 22, pp. 799-800, was quoted with approval as follows: The court is not bound to follow a decision of its own if given per incuriam. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of a coordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords. In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords. I am, therefore of the view that the case of Ahibaran Singh v. State (Supra), ill of no assistance. ( 17 ) IN Chandrashekhar v. State of U. P. (Supra ). a Division Bench of this Court was interpreting the provision of section 190 (1) (c) and it was held that the information referred to in section 190 (1) (c) was the information received from a person other than a Police Officer, upon which a Magistrate may take cognizance of an offence. If such an information has been received from a police officer, then that cannot be said to be an information as required by section 190 (1) (c ). The facts of the present case are different, hence that case is not relevant here. ( 18 ) MUMTAZ and others v. State of U. P. and others, (Supra), was also a case on no different facts. In that case the cognizance appears to have been taken on the basis of injury report filed with the police report. Here in the instant case no such cognizance was taken on the basis of injury report filed with the police report, rather the final report itself has been rejected and cognizance has been taken. Hence that case is also besides the point. ( 19 ) IN the result, I dont find any merit in the present revision and the same is hereby dismissed. The interim stay order dated 9-1-1987 is hereby vacated. .