Research › Browse › Judgment

Bombay High Court · body

1995 DIGILAW 423 (BOM)

Avertson Paul Fernandes v. Rabindra A. L. Das

1995-08-24

T.K.CHANDRASHEKHARA DAS

body1995
JUDGMENT :- Rule. Heard forthwith. 2. The petitioner challenges in this petition that portion of the Order dated 16th March, 1995 of the Asst. Sessions Judge (B), South Goa, Margo, remanding back the matter to the learned Judicial Magistrate F. C., Margo for proceeding further with the case after complying with the provisions of Section 202 (2) of the Cr. P.C. 3. The respondent No. 1 herein had filed a complaint before the J.M.F.C., Margo under Section 200 of Cr. P.C. alleging that the petitioner has committed an offence under Sections 435, 436 and 447 of I.P.C. Along with the complaint the respondent herein has stated the names of witnesses also to be examined in that case. The learned Magistrate after examining one witness who was present in Court has taken cognizance of the offence. The offences disclosed were those triable by the Sessions Court. The learned Magistrate has thus committed the proceedings to the Asst. Sessions Judge, South Goa, Margo. After committal an objection was raised at the instance of the petitioner that the learned Magistrate while taking cognizance of the offence has not complied with the mandatory provisions of Section 202 of Cr. P.C. The aforesaid Section mandates that if in a private complaint the offence disclosed is of grave nature which been triable by the Sessions Court, all the witnesses cited in the complaint have to be examined. For convenience I quote the relevant proviso to Section 202, Cr. P.C. :- "(2) In an inquiry under sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath." 4. The learned Asst. Sessions Judge has of course upheld the objections raised by the petitioner and set aside the order of the Magistrate. But he then remanded the matter back to the Magistrate for taking further proceedings in that matter. Therefore, as I pointed out earlier, the challenge in this writ petition only confined to the action of the learned Asst. Sessions Judge remanding the matter back to the Magistrate for further proceedings. 5. The learned counsel for the petitioner, Mr. But he then remanded the matter back to the Magistrate for taking further proceedings in that matter. Therefore, as I pointed out earlier, the challenge in this writ petition only confined to the action of the learned Asst. Sessions Judge remanding the matter back to the Magistrate for further proceedings. 5. The learned counsel for the petitioner, Mr. A.N.S. Nadkarni submitted that there is no provision in the Code for the learned Sessions Judge to remand the matter back with a direction to conduct de novo inquiry by the Magistrate. He contended that the Cr. P.C. does not empower the learned Sessions Judge in committal proceedings to remand the matter back to the Magistrate for rectifying the defect. If it is found that the Magistrate has not complied with the mandatory proviso of Section 202, Cr. P.C. the only course open to the Sessions Judge is to discharge the accused. In support of his contention the learned counsel for the petitioner has relied on a Full Bench decision of the High Court of Kerala in Moideenkutty Haji v. Kunhikoya, reported in AIR 1987 Ker 184 , where the scope of proviso to sub-Section (2) of Section 202 has been elaborately examined by the Full Bench enumerating all the decisions of other Courts relevant to the question involved in that case. The Full Bench of the Kerala High Court in paragraph 22 has stated thus :- "Under S. 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials." It is the case of the Sessions Judge that the mandate contained in proviso to Section 202 has not been complied with as the complainant did not choose to examine all the witnesses cited in the complaint and therefore it cannot be said that there is sufficient material to commit the matter to the Sessions Court. 6. In view of the above position, I hold that in the absence of examination of witnesses listed in the complaint, taking cognizance of the offence by the Magistrate is illegal. In such circumstances having found so, the learned Asst. 6. In view of the above position, I hold that in the absence of examination of witnesses listed in the complaint, taking cognizance of the offence by the Magistrate is illegal. In such circumstances having found so, the learned Asst. Sessions Judge has no power to remand the matter back to the learned Magistrate for the purpose of rectifying the defects in the complaint. I therefore set aside the order of the Asst. Sessions Judge remanding the matter back to the Magistrate. 7. In the result I allow the writ petition and set aside the order passed by the Asst. Sessions Judge dated 16th March, 1995 in Sessions Case No. 20/93 and the petitioner stand discharged. Rule made absolute in terms of prayer (i) in the petition. There shall be no order as to costs. Petition allowed.