Perni Ailamma and Others vs Tella Zedson and Others

This is a petition filed under S. 482 of the Cr.P.C. for quashing all the proceedings in PRC No. 2 of 1987 on the file of the Court of the Third Additional Munsif Magistrate, Chirala, against the petitioners.

On 17-7-1985, between 7 a.m. and 9 a.m. a rioting, the magnitude of which is never heard of in recent times, took place in and around Madigawada of Karmchedu Village. In the course of the said rioting, as many as five persons died and twenty others were injured. Some of the residential huts situate at the said Madigawada were either destroyed or damaged and properties of some of its inhabitants were looted. All the five deceased were Madigas. The other injured as also those deprived of their abodes and relieved of their properties are also Madigas.

As many as 94 accused have been charge-sheeted in that behalf of by the Deputy Superintendent of Police, Crime Branch, CID, Hyderabad, before the Third Additional Munsif, Magistrate, Chirala, for the offences punishable under Sections 120-B, 148, 302, 304, 355, 395, 454, 449 and 427 read with S. 149 of the I.P.C. and under S. 7(1) of the Protection of Civil Rights Act. The case was taken on file by the learned Magistrate and numbered as PRC 7 of 1985. Subsequently, it was transferred by this Court to the file of the Sixth Additional Munsif Magistrate, Guntur and the same was numbered as PRC 3 of 1986. Not satisfied with the result of investigation into the occurrence. Mr. Jedson, one of the injured, instituted a complaint against as many as 115 accused including 94 accused charge-sheeted by the Police in the Court of the Third Additional Munsif Magistrate, Chirala and it was numbered as PRC. 2 of 1986. Including the complainant as many as 94 accused were examined by the learned Magistrate. Criminal miscellaneous Petition 1359/86 was filed by the complainant on 20-2-1987 requesting the Court to implead 49 order accused in the said case as the examination of the witnesses prima facie established their complicity in the case. That petition was allowed, and the case was taken on file by the learned Magistrate on 3-3-1987 against 140 accused. By his order dt. 21-12-1987 they were committed to take their trial before the Court of Session, Ongole for offences punishable under Sections 120-B, 148, 153-A, 302, 307, 355, 395, 454, 449, 427, 354, 376, 451, 452, 326 read with 34 and 149 of the I.P.C. and S. 7(1) of the Protection of Civil Rights Act. The remaining 24 accused were discharged by the learned Magistrate.

Aggrieved by the order of committal, 23 amongst them have filed the above miscellaneous petitions. Sri. Ayyappa Reddy, learned Counsel appearing for the petitioners, strenuously contends that the order of committal of the petitioners is liable to be quashed for the reason that the learned Magistrate, in flagrant violation of the provisions of S. 208 of the Cr.P.C. did not furnish to the petitioners copies of the statements of the witnesses recorded under S. 161 Cr.P.C., in the case instituted by the Crime Branch, CID, in relation to the very same occurrence.

In order to appreciate the argument advanced before me, reference may be usefully made to Sections 200, 202, 204, 207, 208 and 209 of the Cr.P.C. Under S. 202, Cr.P.C., a Magistrate, on receipt of a complaint alleging commission of an offence of which he is authorised to take cognizance, may postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a Police Officer, for the purpose of deciding whether or not there is sufficient ground for proceedings. No such direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by a Court of Session, and in such a case, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. In other words, on receipt of a complaint alleging commission of an offence not exclusively triable by a Court of Session, the Magistrate has the option to enquire into the case himself or direct an investigation to be made by a police officer. When he enquires into the case himself, he shall examine upon oath the complainant and his witnesses present, if any, as required by S. 200, Cr.P.C. Where he directs an investigation into the case to be made by a Police Officer, necessarily, statements of the witnesses named or produced by the complainant would be recorded by the police officer under S. 161, Cr.P.C. Where, however, the complaint received by the Magistrate alleges commission of an offence exclusively triable by a Court of Session, the Magistrate is bound to enquire into the case himself and is bound to call upon the complainant to produce all his witnesses and examine them on oath, without directing an investigation into the same to be made by a police officer. It, therefore, follows that S. 202, Cr.P.C., contemplates two types of enquires; one without reference to the police officer and the other with the assistance of the police officer. In the case of an enquiry conducted under S. 202, Cr.P.C. with the assistance of the police officer, necessarily, statements of witnesses produced by the complainant are recorded by the police officer under S. 161 Cr.P.C.

Under S. 207, Cr.P.C., in a case instituted on a police report, the Magistrate shall furnish to the accused, free of cost, copies of the statements recorded under sub-section (3) of S. 161, Cr.P.C. of all persons whom the prosecution proposes to examine as its witnesses, besides other documents listed therein.

Section 208, Cr.P.C., enacts that in a case instituted otherwise than on a police report, if it appears to the Magistrate issuing process under S. 204, Cr.P.C., that the offence is triable exclusively by a Court of Session, the Magistrate shall furnish to the accused, free of cost (i) copies of the statements recorded under S. 200 or S. 202, Cr.P.C., of all persons examined by the Magistrate; (ii) statements and confessions, if any, recorded under S. 161 or S. 164, Cr.P.C., and (iii) any document produced before the Magistrate in which the prosecution proposes to rely.

Sri. Ayyappa Reddy, learned Counsel appearing for the petitioners, urges that the Magistrate was bound under S. 208, Cr.P.C., to supply to the accused not only the statements recorded under S. 200 and S. 202, Cr.P.C., of the persons examined by him, but also the statements of the witnesses recorded under S. 161, Cr.P.C., in the case instituted by the C.B., C.I.D., relating to the same occurrence, and that contravention of the mandatory requirements of S. 208, Cr.P.C., vitiated the order of committal of the petitioners.

There is absolutely no substance in the submission made by the learned counsel for the petitioners. As already stated, S. 202, Cr.P.C., lays down the procedure to be followed by the Magistrate on receipt of a complaint alleging commission of an offence of which he is either authorised to take, cognizance, or, which is triable exclusively by the Court of Session. Where the offence complained of is one not exclusively triable by a Court of Session, the Magistrate may himself enquire into the case, examine the complaint and the witnesses, if any, produced by him, or, may direct an investigation into the case to be made by a police officer. If the latter course is adopted, necessarily, the Police Officer records statements of the witnesses under S. 161, Cr.P.C. Where the offence complained of is exclusively triable by a Court of Session the Magistrate is bound to enquire into the case himself and is also bound to call upon the complainant to produce all his witnesses, and examine them on oath. In other words, where the offence is exclusively triable by a Court of Session, there is no necessity of recording statements of witnesses under S. 161, Cr.P.C. S. 208, Cr.P.C. covers both types of enquiries contemplated by S. 202, Cr.P.C. If any statements of witnesses are recorded under S. 161, Cr.P.C., by a police officer pursuant to a direction given by the Magistrate on receipt of a complaint alleging commission of an offence not exclusively triable by a Court of Session, the same shall be supplied to the accused under S. 208, Cr.P.C. But, in a case which is exclusively triable by a Court of Session, no such statements are recorded, and no such duty is cast upon the Magistrate. The words "if any" occurring under S. 208, Cr.P.C., leave no room for any other conclusion. It does not also sound logical if the Magistrate on receipt of a complaint alleging commission of an offence, though exclusively triable by witnesses recorded under S. 161, Cr.P.C., in a case instituted upon a police report before another Magistrate even though both the cases may relate to the same occurrence. I may, however, add that in such a situation, both the cases as and when committed are clubbed and tried by one and the same Sessions Judge one after another. I, therefore, hold that there was no infringement of the provisions of S. 208, Cr.P.C.

It is next urged by Sri. Ayyappa Reddy, learned Counsel appearing for the petitioners, that under S. 319(4), Cr.P.C. the Magistrate should have commenced the enquiry afresh against the petitioners who were sought to be added as supplemental accused. There is no substance in this submission either. It may be noted that S. 319, Cr.P.C., deals with enquiries as well as trials. In the case of enquiries, there is no question of cross-examination or re-examination of the witnesses produced by the complainant, where as, in the case of trials, witnesses produced by the complainant are cross-examined and re-examined. It is only in the course of trial of any offence if it appears from the evidence that any person not being an accused has committed any offence for which such person could be tried together with the accused, the Court can proceed against such person for the offence which he appears to have committed. If the court chooses such a course, the trial in respect of such person shall have to be commenced afresh, and witnesses examined, cross-examined and re-examined earlier have to be necessarily recalled. No such obligation arises where any supplemental accused are sought to be added in the course of enquiries.

In the result, Criminal petition 78 of 1988 is dismissed.

Petition dismissed.