Mokkasami and Others vs State by the Revenue Divisional Officer, Sivaganga

Natarajan, J.—Accused 2 to 8 in S.C. No. 20 of 1976 on the file of the Assistant Sessions Judge, Devakottai, have filed this petition to quash the proceedings in the Sessions case. In connection with the investigation in a case of theft, it is stated that one Arumugam, his wife, Chellammal and their daughter, Pushpam were taken to the police station at Sivagangafor interrogation. They are said to have been detained at the police station unlawfully from 8th June 1975 to 12th June 1975 and the Inspector of Police, who is the first accused in the case, is said to have tortured and caused hurt to them and in addition to have raped Pushpam at about 3 A.M. on the night of 10/11th June 1975. Later, Pushpam is said to have been taken to Kalayarkoil Police Station and once again raped there by the first accused. These petitioners, who are also members of the police force, are said to have voluntarily caused hurt to extort confession from the suspects. After getting out of the clutches of the police, Arumugam and the other victims are said to have made a report to the District Magistrate-I, as a result of which he directed the Revenue Divisional Officer (Executive First Class Magistrate) to hold an enquiry under the Police Standing Orders. An enquiry was duly held and it appears that about 77 witnesses were examined by the said Officer. In accordance with the report submitted by him, a complaint was also preferred by the Revenue Divisional Officer against the first accused for an offence under S. 376, I.P.C. and against the petitioners for an offence under S. 330, I.P.C. The learned Magistrate took the case on file and finding that the case was exclusively triable by a Sessions Court, he committed the accused for Sessions trial.

Before the Magistrate, it was contended that without recording the evidence of all the complainants witnesses as laid down under S. 202(2), Cr.P.C., the learned Magistrate should not commit the accused for a Sessions trial. That plea was rejected by the Committal Magistrate. Before the Assistant Sessions Judge, the same plea was taken after charges had been framed and the case was posted for trial. The Assistant Sessions Judge too repelled the contentions of the petitioners and hence the present petition.

Mr. A.A. Selvam, learned counsel for the petitioners heavily relies upon S. 202(2), Cr.P.C. to sustain the contention of the petitioners that the committal proceedings are invalid, because the Committal Magistrate had not called upon the complainant to produce all his witnesses and examined them on oath. It is common ground that in the instant ease the Committal Magistrate did not examine any of the witnesses on oath before he passed the committal order. The question for consideration is, whether the committal is rendered illegal on account of the Magistrate not having examined the complainant or his witnesses on oath before him.

In procedural matters such as the directions contained in S. 202, Cr.P.C. it is the spirit of the law rather than the letter of it that should be the guiding factor. Though S. 202(2), Cr.P.C. directs a Magistrate taking a complaint on file to call upon the complainant to produce all his witnesses and examine them on oath, if it appears to him that the offence complained of is triable exclusively by the Court of Session, the direction has got to be understood and applied realistically and not mechanically. The Legislature has enjoined a Magistrate to follow the procedure prescribed in S. 202(2) for a two-fold purpose. The first is that the Magistrate should satisfy himself beyond doubt that the offence complained of by the complainant is triable exclusively by the Sessions Court. Secondly, the accused should not be taken by surprise at the Sessions trial by the examination of witnesses, who had not been examined by the Magistrate on oath before he passed the Committal Order. Unlike a charge-sheet laid by the police where the statements of witnesses recorded during inquest or under S. 161(3), Cr.P.C. will be made available to the accused free of cost, the statement of witnesses to be examined in a case filed by a private complainant cannot be made available to the accused unless the complainant and his witnesses are first examined by the Committal Magistrate. It is therefore, to safeguard the interest of the accused that the Magistrate is enjoined to examine the witnesses on oath and record their statement. If these two factors are borne in mind, then the contention of the petitioners that, the Magistrate has not followed the mandatory procedure laid down in S. 202(2) , Cr.P.C. cannot be sustained. The Revenue Divisional Officer who laid a detailed enquiry under the Police Standing Orders, has examined all the witnesses on oath and recorded their statements. Those statements have been perused by the Magistrate and copies have been made available to the petitioners. Hence, the petitioners are fully aware of the earlier statements given by the witnesses. There is therefore no question of the petitioners being taken by surprise by any of the witnesses coming forward and deposing for the first time in the, trial about matters affecting the interest of the petitioners. In that view of the matter, I am unable to agree with the contention of Mr. Selvam that the mandatory procedure laid down by S. 202(2) Cr.P.C. has not been followed and therefore, the committal proceedings are vitiated and consequently the Sessions trial should not take place.

Secondly, as pointed out by the learned Assistant Sessions Judge, the case may not even attract the application of S. 202(2), Cr.P.C., for, the complaint has been laid by the Revenue Divisional Officer and not by a private party. In such circumstances, the 1st proviso to S. 200, Cr.P.C, 1973, will backtracked to the facts of the case. The proviso to the section says that if a complaint is made by a public servant acting or purporting to act in the discharge of his official duties, or a court has made the complaint, then the Magistrate taking the case on file need not examine the complainant''s witnesses. On that ground too, the petitioner''s contentions cannot be accepted. In the result the petition fails and will stand dismissed.