Patna High Court
Gajendra Swaroop Srivastava vs Baleshwar Prasad Kesari on 21 May, 1987
Equivalent citations: AIR1988PAT15, 1987(35)BLJR712, AIR 1988 PATNA 15, (1987) PAT LJR 751, (1988) 15 REPORTS 79, (1988) 2 CRIMES 334, 1988 APLJ (CRI) 94, 1987 BLJR 712, (1987) 2 CRI LC 534, (1987) EASTCRIC 707, 1987 BBCJ 792, (1987) BLJ 726, (1988) SC CR R 186
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT S.S. Sandhawalia, C.J.
1. A veiled doubt about the correctness of the long standing ratio of the Full Bench in Bharat Kishore Lal Singh Deo v. Judhistir Modak (AIR 1929 Pat 473) has, indeed, necessitated this reerence to a still larger Bench of five Judges. The two meaningful issues, which have crystallised and come to the fore, may well be formulated as under : --
(i) Whether Clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973 pertaining to the cognizance of offences by the Magistrate under the said Section are mutually exclusive ?
(ii) Whether the issue of process against the accused under Section 20A after cognizance by the Magistrate under Section 190 is identical with, and consequently shackled by the specific, requirements mandated by Section 203 of the Code for the dismissal of a complaint ?
2. Equally at issue is the correctness of the Division Bench judgment on Ram Kumar Pandey v. State of Bihar (1979 BBCJ 293) answering question No. (ii) in the affirmative.
3. In the context of the aforesaid pristinely legal issues, the facts inevitably pale into relative insignificance. Nevertheless, the terra-firma of their matrix must be noticed albeit with brevity. Way back on the 15th of July, 1978 the complainant opposite party filed a written petition before the Officer-in-charg of Deoghar police station alleging the commission of substantive offences vide annexure 1 to the petition. The police authorities, however, after inquiry, recommended the initiation of proceeding under Section 107 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the 'Code') which was initiated against both the parties and ultimately the said proceeding was dropped after the lapse of a period of six months. The complainant opposite party then filed a complaint petition on the 22nd of August, 1976 before the Additional Chief Judicial Magistrate, Deoghar (vide annexure 2) who sent it to the Offic.er-in-charge of Deoghar Police station for investigation. The police submitted a report (vide annexure 4) on the 31st October, 1978 holding that an offence under Section 500 of the Indian Penal Code alone had been made out. The complain ant opposite party thereafter filed a protest petition on the 2nd of April, 1979 (Annexure 5) before the Additional Chief Judicial Magistrate praying that the same be treated as a complaint. The court examined the complainant on solemn affirmation on the 21st of May, 1979 and also examined four other witnesses named in the complaint petition. Thereafter, by the impugned order (annexure 6) dated the 28th of July, 1979, the learned Magistrate took cognizance of offences under Sections 307 and 500 of the Indian Penal Code and issued process by way of warrant of arrest against the petitioner. The learned Magistrate (vide the impugned order -- annexure 6) recorded that he had perused the statement and also affirmation of the complainant and the statement of his four witnesses and by way of further assurance also referred to the statement in writing filed by the complainant in the police station. From the above pieces of evidence, he prima facie found the commission of offence under Sections 307 and 500 of the Indian Penal Code and retained the case on his own file.
4. Aggrieved by the cognizance and the issue of process against the petitioner, the present criminal miscellaneous petition was preferred on the 13th of May, 1980. Before the admission Bench itself, firm reliance was sought to be placed on Ram Kumar Pandey v. The State of Bihar (1979 BBCJ 293) for contending that the learned Magistrate could not have looked into the petition of the complainant preferred before the police for taking cognizance and his having done so completely vitiated the whole proceeding itself. The learned single Judge, whilst admitting the case in view of the aforesaid Division Bench decision, nevertheless expressed the view that the same required consideration and final hearing should be before a larger Bench for the said purpose. In accord therewith, the matter was listed before a Full Bench of three Juges (to which 1 was also a party) before whom firm relience was placed on behalf of the State on the ratio of the Full Bench in Bharat Kishore Lal Singh Deo v. Judhistir Modak (AIR 1929 Pat 473) holding unreservedly that Clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Code were not mutually exclusive. This view was, however, frontally challenged by the learned counsel for the petitioner on the ground that the subsequent Supreme Court decision in Chandra Deo Singh v. Prokash Chandra(AIR 1963SC 1430) had overridden the earlier Full Bench judgment which was no longer good law. The Full Bench observed that being a co-equal Bench it was precluded from taking a view contrary to the Full Bench case in AIR 1929 Pat 473 and, therefore.
deemed it necessary to refer the matter to a larger Bench for an authoritative adjudication on the questions involved. That is how the matter is now before us.
5. As before the Admission Bench and somewhat more elaborately before the earlier referring Full Bench the corner-stone of the petitioner's argument has been rested on the observation of the Division Bench in Ram Kumar Pandey v. State of Bihar (1979 BBCJ 293) (supra). Relying thereon, learned counsel had contended that herein cognizance has been taken by the Magistrate upon a complaint which fell under Clause (a) of Section 190(1) of the code and, therefore, no reference or reliance could be placed on the earlier petition of complaint before the police and this having been so done in the impugned order would completely vitiate the issue of process against the petitioner under Section 204. In sum, the contention was that Clauses (a), (b) and (c) of Section 190(1) were hermetically sealed from each other and cognizance could be taken only upon one of the other of these clauses which, under no circumstance, could be intermingled or compositely acted upon herein. There having been interplay of the provisions under Clauses (a), and (b) of Section 190(1), the proceedings were sought to be quashed on the analogy of the ratio of Ram Kumar Pandey v. The State of Bihar.
6. To my mind, what appears to be a doctrinaire and hyper-technical contention aforesaid of the learned counsel is sustainable neither on principle nor on precedent and since it appears to me that within this jurisdiction the matter is conclusively covered by authority, it is first apt to refer to precedent. Way back in AIR 1929 Pat 473 (Bharat Kishore Lal Singh Deo v. Judhistir Modak) an identical argument was sought to be raised before the Full Bench presided over by Courtney-Terrell, C.J., and was repelled unequivocally in the terms following : --
"An argument has been raised before us that in considering Section 190," Criminal P.C. one should in fact treat the three alternatives upon which a Magistrate may take proceedings as being mutually exclusive, that is to say, that a Magistrate must be held in taking cognizance of an offence to have taken cognizance under some one of the alternatives to the exclusion of the others but that to my mind is not the construction at all."
Further elaborating the anomalous results which would flow from the proposition sought to be canvased on behalf of the petitioner, the Full Bench observed in no uncertain terms as under : --
"Furthermore it is said that under Section 202, Criminal P.C. in every case where a document in writing has been lodged it is the duty of the Magistrate to treat that as a complaint and to take cognizance invariably upon that and not upon any other source of information permitted by Section 190. To my mind that contention is also erroneous. Section 200 and Section 202 which impose upon the Magistrate the duty of examining the complainant on oath are only applicable where the Magistrate proposes to take proceedings upon the information supplied by the complainant. And if he intends to issue process upon that basis then it is incumbent upon him to examine the complainant on oath, but not otherwise, and indeed if the opposite were the rule a paralysis of business might take place. A Magistrate may well be visited from time to time by persons who simply put before him a document in writing alleging an offence and it would bar the Magistrate from ever proceeding upon, for example, a simultaneous police report which had come to him from his own knowledge and compelled him to examine the complainant on oath. Mr. Gupta who has most ably argued this case was frankly constrained to admit that a ridiculous state of affairs might be brought about, because if an individual long known to the Magistrate as a lodger of false complaints and a nuisance generally comes into his office and places before him a writing in which he asserts, for example, that a murder had just been committed the Magistrate would not be entitled to send out police to enquire and apprehend the accused person, but he would be forced before he could do anything, to examine that complainant on oath and that if proceedings were taken subsequently ignoring the original complainant and if such proceedings were based upon a police report, they would be wholly invalid because the original person who had first brought the information in writing to the Magistrate had not been examined on oath. I think that the result of the application of the argument is sufficient to demonstrate its unsoundness."
Now, it is common ground before us that the aforesaid ratio was not deviated from within this jurisdiction (nor any judgment of any other High Court to the contrary could be pointed out) for well-nigh half a century. Indeed, far from there being any dissent, the Full Bench in 1978 BBCJ 400 : (AIR 1978 Pat 298) (Kuli Singh v. State of Bihar) reiterated the same unreservedly. Therein my learned Brother, Uday Singha, J., who prepared the leading judgment observed as under : --
"It is well known that the three jurisdictions mentioned in Sub-section (1) of Section 190 are overlapping and are not mutually exclusive as observed by Courtney-Terrell, C. J., in Bharat Kishore Lal Singh Deo v. Judhistir Modak (AIR 1929 Pat 473)."
Yet again, Chief Justice K. E. N. Singh in his concurring judgment held as under : --
"I agree with my learned Brother Uday Sinha, J. I would like, however, to add some observations of my own. The three circumstances, under which cognizance can be taken under Sub-sections (1) (a), (b) and (c) of Section 190 of the Code of Criminal Procedure, are alternatives and not mutually exclusive."
It is thus maniest that principle and ratio of Bharat Kishore Lal Singh Deo v. Judhistir Modak (supra) has now held unstinted sway within this jurisdiction for nearly sixty years without a hint of dissent and even on the hallowed principle of stare decisis the same cannot be deviated from.
7. Perhaps faced with the uphill task of challenging a view of such long standing and otherwise what appears to me as impeccable reason, the learned counsel forthe petitioner fairly conceded that he could lay no serious challenge or criticism to the ratio decidendi in Bharat Kishore Lal Singh Deo's case (AIR 1929 Pat 473 (FB) ) and reiterated in 1978 BBCJ 400 : (AIR 1978 Pat 298 (FB) ) (Kuli Singh v. State of Bihar). However, in an issue of significance raised and carried to the larger Bench, I would wish to make it clear that I am not adjudicating thereon merely ex concess but because of unreserved agreement with the earlier view in the aforementioned Full Benches, I am reiterating it equally on logical principle.
8. Inevitably one must turn to relevant part of the provisions of Section 190 which is in the terms following : --
"Cognizance of offences by Magistrates : --
(1) Except as hereinafter provided any Presidency Magistrate, District Magistrate or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officers;
(c) upon information received from any person other than police officer, or upon his own knowledge that such offence has been committed."
It is common ground that the provision, aforesaid has stood unaltered for nearly a century since the enactment of the old Code in 1898 barring a minor and insignificant change by deleting the words "or suspicion" from Clause (c) thereof. It was common ground before us that the minor exclusion does not in any way affect the construction of the issue now before us.
9. Ere one adverts to a closer analysis of Section 190 what appears equally important is the issue of a correct approach to such a construction. As is manifest from the heading, chapter XIV pertains to the conditions requisite for the initiation of criminal proceedings and Section 190 relates to the cognizance of offences by Magistrate. The larger approach to the section is now so well settled by the authoritative and celebrated judgment (which also arose from this court) in AIR 1967 SC 1167 (Raghubans Dubey v. State of Bihar) that it would be wasteful to elaborate thereon. Therein Sikri, J., speaking for the Court observed as under in the context of Section 190 :--
"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence, it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the person sent up by the police a some other persons are involved, it is his duty to proceed against those persons."
The aforesaid view has been unreservedly followed thereafter and it is thus somewhat plain that Section 190 is not merely the conferment of power but is equally a power coupled with duty to see that the offenders of crimes are brought to book. Relying on the above, the Full Bench in Kuli Singh v. State of Bihar (AIR 1978 Pat 298) (supra) highlighted another basic facet of criminal jurisprudence in the following terms :--
"Before considering the submissions urged on behalf of the petitioners, it will be useful to remember that a magistrate has ultimate control over police investigation. That is a basic concept. If this is forgotten, we are bound to go astray. The ultimate jurisdiction of deciding who will be put on trial is to a Magistrate and not in the police. In that sense it would not be inapt to say that a Magistrate has ultimate control over investigation.....
The above recognises and lays down the basic structures of our legal system, that the last say in the matter of putting accused on trial is with the Magisrate."
10. Now, once the aforesaid two basic concepts are accepted that it is equally the duty of the Court to bring to trial persons who prima facie are shown to have committed an offence and that the last say in this process rests with the Magistrate, it would be plain that Section 190 and the interlinked Section 204 for the issue of process are to be liberally and broadly construed. They are to be narrowly constricted in a Procrustean bed. No finical spokes unwarranted by the language of the statute are to be put in the wheel of justice for taking cognizance of offences and issue of process for bringing the alleged offenders to trial before the criminal Court. As has been repeatedly said, criminal jurisprudence is one of substance and not of technicality and its procedure is to be a handmaid to justice and not a road-block therto.
11. It is in the light of the above that one has to see the width with which the power to take cognizance of offences by Magistrate has been couched in the three Clauses (a), (b) and (c) of Section 190(1). It nowhere follows from the language that these three clauses are mutually exclusive and hermetically sealed from each other. It is perhaps significant to note that the three clauses are not divided by the word "or" from each other. In the well known case of R. S. Nayak v. A. R. Antulay, (1984) 2 SCC 183 : (AIR 1964 SC 684), their Lordships elaborated the four methods of taking cognizance of an offence. That these are not mutually exclusive indeed seems manifest both from the language of Section 190 and equally from precedent. There appears no legal mandate whatsoever that cognizance must be taken either under Clause (a) or Clause (b) or Clause (c) separately and that they do not intermingle or overlap each other. Yet again in AIR 1968 SC 117 (Abhinandan Jha v. Dinesh Mishra) their Lordships clearly held that even in the case of a police report under Section 190(1)(b) although the Magistrate cannot direct the filing of a charge-sheet, he can nevertheless take cognizance under Section 190 (1)(c). It is thus plain that on high authority Clauses (b) and (c) may overlap and on parity of reasoning there can possibly be no legal bar with regard to Clauses (a) and (b) or (a) and (c). It thus seems manifest that at least for the purposes of taking cognizance there is no watertight compartmentalisation of the said clauses under which a Magistrate may choose to issue process. Therefore, any hermetic sealing or compartmentalisation of causes (a), (b) and (c) of Sub-section (1) of Section 190 and holding that these are mutually exclusive is neither justified on principle nor on authority. To conclude on this aspect, the answer to question No. (i) framed at the outset is rendered in the negative and it is held that Clauses (a), (b) and (c) of Sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973 pertaining to cognizance of offences by the Magistrate under the said section are in no way mutually exclusive.
12. One may now advert to question No. (ii). Herein the argument of the learned counsel for the petitioner is sought to be rested directly on the observations in the case of Ram Kumar v. State of Bihar (1979 BBCJ 293) (supra). Relying thereupon learned counsel for the petitioner contended that the consideration for the dismissal of complaint under Section 203, and for the issue of process under Section 204, are identical in terms. On that premise it was submited that in complaint cases the Magistrate cannot form his opinion for the purpose of the issue of process on materials other than those on the basis of which he can dismiss a petition of complaint as expressly specified under Section 203. Assailing the impugned order of the issue of process on this ground it was submitted that the learned Magistrate had therein referred and relied on the statement in writing filed by the complainant before the Police, which was a material not enumerated in Section 203 and must consequently so deemed to be extraneous for the issue of process and this would, therefore, vitiate the proceedings.
13. With the greatest respect it appears to me that the aforesaid argument, though rested on precedent, is plainly untenable. The dismissal of complaint under Section 203 and the issue of process under Section 204, to my mind, are things distinct and apart both on principle and the language of the aforesaid provisions and it is erroneous to label them as identical. To appreciate the issue it is, perhaps, apt at the very threshold to juxtapose the provisions of Section 203 and the relevant part of Section 204 at the very outset.
Section 203 Section 204 "203. Dismissal of Complaint.-- If, "204. Issue of process. (1) If in the opinion of a after considering the statements on Magistrate taking cognizance of an offence there oath (if any) of the complainant and of is sufficient ground for proceeding, and the case the witnesses and the result of the in- appears to be quiry or investigation (if any) under (a) a summons case, he shall issue his summons for Section 202 , the Magistrate is of opi- the attendance of the accused, or nion that there is no sufficient ground (b) a warrant-case, he may issue a warrant, or, if for proceeding, he shall dismiss the he thinks fit, a summons, for causing the accused complaint, and in every such case he to be brought or to appear at a certain time before shall briefly record his reasons for so such Magistrate or (if he has no jurisdiction him- doing." self) some other Magistrate having jurisdiction. XX XX XX "
14. It needs neither any great erudition nor calls for elaboration that the language and content of the aforesaid two provisions are entirely different and distinct. Far from being in any way in pari materia, they seem to bear no identity with each other. When the language and content are thus so totally divergent, it is difficult to hold that the considerations which are germane and in fact specified by the statuted in Section 203 would be equally applicable and govern the altogether different language and purpose of Section 204.
15. Perhaps, the only superficial connection betwixt Sections 203 and 204 of the Code is that the latter succeeds the former but herein one must pointedly notice that Section 203 is the last in a different Chapter XV with regard to complaints to Magistrates whilst Section 204 is the first in the different chapter XVI pertaining to the commencement of proceedings before Magistrates. The very scheme and purpose of Chapter XV beginning with Section 200 pertaining to the examination of complainant and the witnesses present, if any, and the subsequent procedure provided by Sections 201 and 202 and the possibility of its culmination by the dismissal of the complaint at the very threshold are, to my mind, altogether different and distinct; from that in the succeeding Chapter XVI. If the Magistrate is of the opinion that there is sufficient ground for proceeding against the accused and issue of process against him, he proceeds thereafter under the remaining sections of the said Chapter ending with Section 210. It seems somewhat manifest that both the scheme and purpose of Chapters XV and XVI, and equally the language and content of Sections 203 and 204, are thus different and distinct.
16. It is then significant to notice that Section 203 is in terms specific with regard to the materials on the basis of which complaint is to be dismissed at the threshold without issue of process to the accused. It expressly mandates what has to be considered therefore, namely, (i) the statement on oath of the complainant, (ii) the statement of the witnesses adduced on behalf of the complainant, and
(iii) the result of the enquiry or investigation, if any. It is upon these specified materials alone that the Magistrate is to arrive at an opinion in the particular case that there is no sufficient ground for proceeding. It is a hallowed rule that when a statute lays down the procedure for doing a thing then it can be done only in that form and not another.
17. In sharp contrast thereto Section 204 which is inevitably linked with Section 190 regarding the cognizance of offences by Magistrate, does not contain any such preconditions or mandated material upon which the process is to be issued against the, accused. The matter here is at large in the discretion of the magistrate and if in his opinion there is sufficient ground for proceeding, he must forthwith issue process of the nature warranted by an offence, namely, either a summons or a warrant therefor. Under Section 204 the only requirement is the opinion of the Magistrate taking cognizance that there is sufficient ground for proceeding and it is plain that the statute is cast in terms of wide amplitude and confers a somewhat large discretionary power to the Magistrate for summoning a person for inquiry and trial. Consequently this power, which read in the light of Raghubans Dubey's case (AIR 1967 SC 1167) (supra), is indeed coupled with the duty and is a wide one and in the sharpest contrast to the power of the dismissal of a complaint under Section 203, which is mandated to be on specific materials and inevitably operates within these constricted parameters. The two, to my mind, are plainly and significantly different things.
18. What next calls for pointed notice is the fact that Section 203 further mandates that in every case in which the Magistrate dismisses the complaint therein, he must briefly record his reasons for doing so. Thus, this provision in express terms mandates the materials for consideration and the reasons for acting thereon for the purposes of dismissal. On the other hand, Section 204 makes no statutory requirement of the recording of any detailed or brief reasons for the issue of process. This is not to say that the magistrate is barred from doing so. What is sought to be highlighted is that this provision requires no more than the opinion or satisfaction of the magistrate that there, is sufficient ground for proceeding against the accused. Thus herein neither the materials on which such judicial satisfaction is to be arrived at are circumstanced nor any detailed process of rationalisation is required either under Section 190 or under Section 204. This, yet again, is not a distinction without significance. For the issue of process under Section 204 the hands of the Magistrate are thus not fettered as to the materials he would look into for the formation of his opinion nor is the power to summon shackled with any elaboration of detailed reasons f or doing so.
19. Now once it is found that under Section 204 whilst issuing process no elaborate reasons are mandated by the statute, it would seem anomalous that the issue of such process should be struck down on the ground that the Magistrate has proceeded fairly and somewhat more meticulously and indicated his reasons for arriving at his opinion that there was sufficient ground for proceeding against as accused person.
20. That the magisterial discretion to issue process under Section 204 coupled, as it is, with Section 190 is a wide one, is equally borne out by binding precedent. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalal (AIR 1976 SC 1947) their Lordships unhesitatingly observed as under;
".....The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused....."
21. Equally it appears to me that in HareramSatpathy v. Tikaram Agarwala (AIR 1978 SC 1568) their Lordships have unreservedly approved that even on a complaint it would be open to the Magistrate to peruse the proceeding before the Police including statements under S, 161 of the Criminal Procedure Code for the purposes of issuing process. Therein their Lordships expressly noticed the undermentioned factual matrix;
".....As the police did not proceed against all the 13 persons mentioned in the aforesaid report made by him, the appellant filed a complaint in the Court of the Sub-Divisional Magistrate, Belangir, reiterating the allegations made by him against the aforesaid 13 persons including the respondents herein who did not figure as accused in the aforesaid police charge-sheet. After going through the statements made under Section 161 of the Cr.P.C. by the appellant and Bhibudananda Udgata, Barudanana Nanda and Sankar Tripathy and finding a prima facie case under Section 302 of the Indian Penal Code made out against the respondents, the Magistrate directed the issue of non-bailable warrants against them...."
The aforesaid issue of process was set aside by the High Court of Orissa, but on appeal their Lordships of the Supreme Court whilst reversing the High Court and allowing the appeal categorically observed that in doing so the Magistrate did not, in their judgment, exceed the power vested in him under the law for taking cognizance and issue of process.
22. It remains to advert to the Division Bench Judgment in Ram Kumar Pandey v. State of Bihar (1979 BBCJ 293) (supra) which is the sheet anchor of the petitioner's case and there is no gainsaying the fact that it supports his stand, with deepest respect, it appears to me that the fallacy which crept into the judgment was an erroneous reliance on Chandra Deo Singh v. Prokash Chandra Bose (AIR 1963 SC 1430) (supra). A close perusal of that judgment would indicate that the said case pertained to Section 203, Criminal Procedure Code alone and even a bare reference to Section 204 or Section 190 is conspicuous by its absence in the whole judgment. The question, inter alia, before their Lordships was whether for the purposes of the dismissal of complaint under Section 203 the Magistrate would look to any extraneous material apart from that prescribed expressly in terms by the said section, namely, the statement of the complainant, that of his witnesses and the result of an inquiry under Section 202. It was in the particular context of Section 203 with regard to the dismissal of the complaint that their Lordships observed rightly that the Magistrate could not travel to grounds extraneous to those specified in the said section. At no stage did any issue arise under Section 204 or that the considerations germane under Section 203 were to be equally applicable to Section 204. On the contrary, they in terms observed as under;
".....For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is 'sufficient ground for proceeding' and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the state of enquiry....."
It is somewhat plain that Chandra Deo Singh's case (supra) is not the least warrant for the proposition that Section 204 for the purpose of issue of process is shackled by the requirements prescribed for an altogether different situation of the dismissal of a complaint at the threshold under Section 203.
23. With great deferene, once the ratio of Chandra Deo Singh's case (AIR 1963 SC 1430) (supra) is held to be not applicable, the ratio in Ram Kumar Pandey's case (1979 BBCJ 293) (supra) is not sustainable. Indeed, the learned Judges themselves noticed that it was true that on the basis of what materials the opinion to issue process is to be found is not specified in Section 204. Nevertheless, it was observed as a dictum that in complaint cases the Magistrate cannot form this opinion to issue process on materials other than the materials on the basis of which he can dismiss the petition of complaint under Section 203. With respect it is not possible to agree with this proposition" in the light of the elaborate discussion preceding earlier. It would seem that the patent difference is the language of t he two provisions in the different chapters in which they are laid, and the very purpose and scheme of those chapters and innumerable other distinctions were not highlighted by the counsel before the Bench. It was further observed that whether the petition of complaint should be dismissed or the accused concerned should be summoned, the opinion has to be formed at the same time. This observation is again not invariably true. The stages for the dismissal of the complaint at the threshold under Section 203 and the issue of process against the accused are in no way conterminus or necessarily simultaneous. With the deepest respect the judgment does not lay down the law correctly and is hereby overruled.
24. To finally conclude, the answer to question No. (ii) is rendered in the negative. It is held that on the language of Section 204; on principle, and on precedent, the issue of process against an accused under the said section after cognizance by the Magistrate is in no way identical with and consequently is not shackled by the specific requirements mandated in Section 203 of the Code for the dismissal of a complaint.
25. Once the legal issues have been answered in the terms above, it is manifest that there is no merit in this petition. The learned Magistrate whilst taking cognizance and issuing process adverted to all the relevant pieces of evidence before him for arriving at his judicial opinion that there was sufficient ground for proceeding against the petitioners under Sections 307 and 500 of the Indian Penal Code. As observed by their Lordships of the Supreme Court, that discretion is not to be lightly interfered with. Indeed, barring the two legal challenges noticed above, no other infirmity in the impugned order could be pointed out. The same is consequently affirmed and the criminal miscellaneous application is hereby dismissed. As there has already been grave delay in the trial because of the pendency of this case in this Court, it is directed that the Magistrate will expeditiously proceed to dispose of the same.
Nagendra Prasad Singh, J.
26. I agree.
Uday Sinha, J.
27. I am in complete agreement with the judgment just delivered by Chief Justice, I would only like to add that for several years the case of Chandra Deo Singh (AIR 1963 SC 1430) (supra) had been misapplied. It is high time the work was righted. It is fallacious to consider the provisions of Section 203 on the one hand and that of Section 204 on the other being two sides of the same coin.
S. Ali Ahmad, J.
28. I agree.
M.P. Varma, J.
29. Having had the privilege of going though the judgment of my Lord the Chief Justice, I express my complete agreement with the same and like to add a few words of my own.
30. Section 203 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') is the last terminus of Chapter XV of the Code while Section 204 is the initial terminus of Chapter XVI of the Code, each dealing with the different aspects, i.e., the previous Chapter dealing with the Magistrate's jurisdiction for disposing of complaints whereas the latter Chapter deals with the commencement of trial for offences, cognizance whereof has already been taken by the Magistrate.
31. The expression "Magistrate taking cognizance" in Section 204 of the Code, does not connote the time when or the act by which the Magistrate takes cognizance of an offence. It simply points out to the Magistrate who is dealing with either the complaint or police report and who has after considering either "decided to take cognizance of the offence". The expression is only qualifying. This aspect of the matter has for long in many cases been misconstrued resulting in grave error of law.
32. The Code has dealt with the dismissal of a complaint and has circumscribed the powers of Magistrate in the matter of such dismissal and for that purpose it has in clear terms laid down the ambit within which the Magistrate has to work while dismissing the complaint. It is in this context that the Supreme Court decision, namely, the case of Chandra Deo Singh (AIR 1963 SC 1430) (supra) has laid down that the Magistrate cannot apply his mind or take into consideration any material other than those specifically mentioned in Section 203 of the Code. This decision is no guideline in the matter of the Magistrate deciding to take cognizance of the offence and proceed with the trial. It is abundantly clear from the provisions contained in different clauses of Section 190 of the Code which arms the Magistrate for taking cognizance on a written complaint, police report or on his own information. The scope has been made so wide is matter of taking cognizance that the Magistrate can take cognizance of the offence even without passing a speaking order. The order may be passed even by speaking in terms that 'cognizance' has been taken, which is strictly prohibited in Section 203 of the Code, while dealing with dismissal of a complaint.
33. In that view of the matter, it is clear that the different cluases of Section 190 are in no way mutually exclusive. Likewise on the language of Section 204, the issue of process against an accused under said section, after cognizance of the offence is taken, is in no way identical with and consequently is not shackled by specific requirements contained in Section 203 of the Code for dismissal of the complaint.
34. The leading judgment as given by my Lord the Chief Justice has thus clarified the misgivings in the mind of a Magistrate regarding the true scope of Sections 203 and 204 of the Code as enunciated in the case of Chandra Deo Singh (AIR 1963 SC 1430) (supra).