IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1948 OF 2008 Bharat Dayanand Raskar .. Applicant Versus Sr.Inspector, Taloja Police Station & others .. Respondents Mr.Balasaheb Deshmukh for the applicant. Mr.D.P.Adsule, A.P.P for the State. Mr.Subodh Desai with Mr.Aniket Nair i/by M/s.Khaitan & Jayakar for Respondent Nos.2 and 3. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 22nd August 2008. : 22nd August 2008. : 22nd August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the last date. With a view to appreciate submissions, it will be necessary to refer to the facts of the case in brief. The applicant in this application filed a private complaint before the learned Magistrate alleging commission of offences under section 307, 440, 201, 144, 146, 120-A and 34 of the Indian Penal Code. An order was passed on 13th April 2007 by the learned Magistrate directing the Senior Police Inspector of Taloja police station to investigate the matter under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). On the basis of the said order, F.I.R was : 2 : 2 : 2 : registered by the concerned police officer. After carrying out investigation a report was submitted by the concerned officer recording an opinion that no case of commission of offence was made out. On 24th April 2008 the learned Magistrate passed further order directing that the applicant complainant shall examine himself on oath under section 200 of the said Code and shall also examine his witnesses. The learned Judge observed that in view of section 201 of the said Code, offence under section 307 of the Indian Penal Code was exclusively triable by a Court of Sessions. The challenge by the applicant in this petition is to the aforesaid order dated 24th April 2008 by invoking power of this Court under section 482 of the said Code. 2. The submission of the learned counsel for the applicant is that the impugned order is contrary to section 209 of the said Code. He submitted that in view of amended section 209 of the said Code, once an offence under section 307 was alleged, it was the duty of the learned Magistrate to commit the case to the Court of Sessions. He submitted that on the basis of material produced by the police after holding investigation, the learned Judge ought to have committed the case to Court of Sessions and he had no jurisdiction to make any further inquiry or investigation in the matter. He has placed reliance on a decision of the Apex Court in the : 3 : 3 : 3 : case of Raj Kishore Prasad Vs. State of Bihar & Anr (AIR 1996 SC 1931). Relying upon the said decision he submitted that when offence alleged is exclusively triable by a Court of Sessions, learned Magistrate has no jurisdiction to held an inquiry in to the question whether there was any material to proceed for an offence under section 307 of the Indian Penal Code. He submitted that the order of the learned Magistrate was illegal and it deserves to be set aside with a direction to the learned Judge to commit the case to the Court of Sessions. 3. The learned counsel appearing for the accused submitted that proviso to sub section 2 of section 202 of the said Code is mandatory and the learned Magistrate cannot issue process without the complainant examining himself and all his witnesses. He has placed reliance on the decision of this Court in the case of Shyamkant Wamanrao Pawar and others Vs. State of Maharashtra and others (1980 Cri.L.J. 1388). He also invited my attention to the decision of the Apex Court in the case of Rozy and another Vs. State of Kerala and others [(2000) 2 Supreme Court Cases 230]. 4. I have carefully considered the submissions. From the complaint it appears that apart from the other offences, the applicant had alleged commission of : 4 : 4 : 4 : offence under section 307 of the Indian Penal Code. It will be necessary to refer to section 202 of the said Code which reads thus: "202. Postponement Postponement Postponement of issue of process.- of issue of process.- of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: . Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or : 5 : 5 : 5 : (c) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (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. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant." Sub section 1 of section 202 contemplates passing of an order by Magistrate of postponing the issue of process by either inquiring into the case himself or by directing an investigation to be made by a police : 6 : 6 : 6 : officer for purpose of deciding whether or not there is sufficient ground for proceeding. Sub section 2 provides that if the learned Magistrate decides to hold an enquiry under sub section 1, if he thinks fit, he may take evidence of the witnesses on oath. Proviso to sub section 1 lays down that no direction for investigation shall be made by the learned Magistrate where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions. Proviso to sub section 2 of section 202 lays down that when it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. 5. It will be necessary to refer to the decision of the Apex Court in the case of Rozy and another (supra). The said decision is by a bench consisting of two Hon’ble Judges of the Apex Court. His Lordship Justice M.B.Shah in paragraph 20 of his separate judgment summarised his conclusions. The relevant part of the said conclusions reads thus: "(b). However, However, However, where it appears to the where it appears to the where it appears to the Magistrate Magistrate Magistrate that the offence complained of is that the offence complained of is that the offence complained of is triable triable triable exclusively by the Court of Session, the exclusively by the Court of Session, the exclusively by the Court of Session, the direction direction direction of investigation by the police officer of investigation by the police officer of investigation by the police officer : 7 : 7 : 7 : is is is not permissible and he is required to hold not permissible and he is required to hold not permissible and he is required to hold inquiry inquiry inquiry by himself. During that inquiry he may by himself. During that inquiry he may by himself. During that inquiry he may decide decide decide to examine the witnesses on oath. At to examine the witnesses on oath. At to examine the witnesses on oath. At that that that stage, the proviso further gives mandatory stage, the proviso further gives mandatory stage, the proviso further gives mandatory directions directions directions that he shall call upon the that he shall call upon the that he shall call upon the complainant complainant complainant to produce all his witnesses and to produce all his witnesses and to produce all his witnesses and examine examine examine them on oath. The reason obviously is them on oath. The reason obviously is them on oath. The reason obviously is that that that in a private complaint, which is required in a private complaint, which is required in a private complaint, which is required to to to be committed to the Sessions Court for trial, be committed to the Sessions Court for trial, be committed to the Sessions Court for trial, it it it would safeguard the interest of the accused would safeguard the interest of the accused would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by the complainant under Section 204(2) before issuance of the process. (c) The irregularity or non-compliance therewith would not vitiate further proceedings in all cases. A person complainant of such A person complainant of such A person complainant of such regularity regularity regularity should raise objection at the should raise objection at the should raise objection at the earliest earliest earliest stage and he should point out how stage and he should point out how stage and he should point out how prejudice prejudice prejudice is caused or is likely to be caused by is caused or is likely to be caused by is caused or is likely to be caused by not not not following the proviso. If he fails to raise following the proviso. If he fails to raise following the proviso. If he fails to raise such such such objection at the earliest stage, he is objection at the earliest stage, he is objection at the earliest stage, he is precluded precluded precluded from raising such objection later." from raising such objection later." from raising such objection later." (Emphasis supplied) : 8 : 8 : 8 : 6. His Lordship Justice K.T. Thomas delivered a separate verdict. In paragraphs 47 and 48 he has summarised his conclusions as under: "47. Thus Thus Thus I have no doubt that the proviso I have no doubt that the proviso I have no doubt that the proviso incorporated incorporated incorporated in sub-section (2) of Section 202 in sub-section (2) of Section 202 in sub-section (2) of Section 202 of of of the Code is not merely to confer a discretion the Code is not merely to confer a discretion the Code is not merely to confer a discretion on on on the Magistrate, but a compelling duty on him the Magistrate, but a compelling duty on him the Magistrate, but a compelling duty on him to to to perform in such cases. I wish to add that perform in such cases. I wish to add that perform in such cases. I wish to add that the the the Magistrate in such a situation is not Magistrate in such a situation is not Magistrate in such a situation is not obliged obliged obliged to examine witnesses who could not be to examine witnesses who could not be to examine witnesses who could not be produced produced produced by the complainant when asked to by the complainant when asked to by the complainant when asked to produce produce produce such witnesses. Of course if the such witnesses. Of course if the such witnesses. Of course if the complainant complainant complainant requires the help of the court to requires the help of the court to requires the help of the court to summon summon summon such witnesses it is open to the such witnesses it is open to the such witnesses it is open to the Magistrate Magistrate Magistrate to issue such summons, for, there is to issue such summons, for, there is to issue such summons, for, there is nothing nothing nothing in the Code which prevents the in the Code which prevents the in the Code which prevents the Magistrate Magistrate Magistrate from issuing such summons to the from issuing such summons to the from issuing such summons to the witnesses. witnesses. witnesses. 48. I reiterate that if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. If no objection is taken at the earlier stage regarding such omission the court can consider how far such omission would have led to a : 9 : 9 : 9 : miscarriage of justice, when such objection is taken at a later stage. A decision on such belated objection can be taken by bearing in mind the principles adumbrated in Section 465 of the Code". Thus, the view taken by both the separate judgments is that when it appears to the Magistrate that the offence complained of is triable exclusively by Court of Sessions, a direction for investigation by the police officer cannot be passed under sub-section 1 of section 202 of the said Code and the learned Judge is required to hold an inquiry himself. What has been held is that the proviso to sub section 2 of section 202 does not confer discretion but it imposes a duty on the learned Magistrate. The Apex Court further held that the irregularity or non compliance with the requirement of sub section 2 of section 202 will not vitiate further proceedings in all cases. The Apex Court further held that an objection to the irregularity committed in this behalf shall be raised at the earliest stage. 7. Thus, when the applicant had alleged commission of offence under section 307 of the Indian Penal Code, contrary to the aforesaid provisions, the learned Magistrate could not have directed investigation by the : 10 : 10 : 10 : police officer. When the case was at preliminary stage, the learned Judge has corrected the error committed by him and has passed an order in confirmity with the provisions of section 202 of the said Code. 8. It must be stated here that the view taken by the Division Bench of this Court in the case of Shyamkant Pawar (supra) is that when offence is allegedly triable exclusively by Court of Sessions, the learned Magistrate is required to follow the proviso to sub section 2 of section 202 of the said Code. Thus, the effect of the impugned order is that the applicant will have to examine himself on oath and will have to also examine his witnesses. 9. It is well settled that the power of this Court under section 482 of the said Code is to be exercised sparingly and in very rare cases. The order impugned passed by the learned Magistrate is in confirmity with the provisions of law. In any event, this is certainly not one of those cases where power under section 482 of the said Code can be exercised by this Court. 10. Hence, the application is rejected. : 11 : 11 : 11 : (A.S. Oka, J)