Karnataka High Court
Naganagouda Veeranagouda Patil And ... vs Malatesh H. Kulkarni on 11 March, 1997
Equivalent citations: 1998CRILJ1707, ILR1997KAR2091, 1997(4)KARLJ150
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
ORDER
1. The learned single Judge of this Court has referred a group of Criminal Petitions filed under section 482, Cr.P.C. to the Division Bench for resolution of a point of procedure which is of some consequence. Though, as we shall presently point out, the consenus in a whole string of earlier decisions has been in favour of the view that the participation of the complainant's Advocate at the stage when the verification statement is being taken down by the presiding Magistrate while scrutinising a private complaint is not permissible, there has been some difference of opinion in this regard particularly on the question as to whether the deviation from this procedure would result in an illegality or whether it is a curable irregularity. Section 200 of the Cr.P.C. underwent drastic amendments when the new criminal Procedure Code came on the statute book in 1973. The section as it now appears in the Cr.P.C. is reproduced below for ready reference :
"200. Examination of complainant :- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 :
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
2. The controversy hinges around part of Section 200, Cr.P.C. The section prescribes that it is mandatory for the learned Magistrate before whom the complaint is presented to examine the complainant and his witnesses and to record the substance of such examination. The underlying purpose behind following of this procedure is a salutory one and we shall deal with it at some length presently. The complainant is invariably represented by a lawyer and the procedure that was being followed in a large number of cases which includes the present set, was that at the verification stage the complainant's learned Advocate used to conduct a virtual examination-in-chief which the Court used to take down and thereafter act upon. The challenge in the present set of petitions hinges around the question as to whether such a procedure is at all permissible and the anciliary aspect of the issue is as to whether such a procedure if permissible is desirable or justified. Experience has shown that there are several aspects that need to be taken into account by this Court in this regard, because the Code of Criminal Procedure only prescribes the procedure that is required to be followed in the conduct of these cases and it is well settled law that such procedures are no more than the guidelines. Undoubtedly, those guidelines are required to be observed and not breached but in finally adopting the procedure which a Court has got to follow, it is equally well settled law that certain amount of lee-way is permissible provided that it is in consonance with the interest of justice. It is this last aspect of the matter that the learned S.P.P. has emphasised on, in so far as he points out that in all the earlier judgments, a purely technical view was taken by mechanically insisting on the letter of the law, but his submission was that it is equally important for a Court to ensure that the procedure prescribed is fair, that it is practical and that it takes cognizance of the various day today working requirements. To quote an example, the learned S.P.P. did point out to us that the subordinate criminal courts are abnormally over burdened with custody cases and day today remands bail applications etc., and that consequently, even though it is equally the duty of the learned Magistrate to deal with private complaints, that if one were to take stock of the actual day today analysis of the work load, that it would be necessary to simplify to the maximum extent the observance of the requirements in order to ensure that these Courts do not get even more over-loaded in the process. We have heard the learned Advocates in the various petitions as also the learned S.P.P. who is not directly concerned with the merits of the case but has assisted the Court admirably in the matter. We do consider that while interpreting the section that it is equally necessary to lay down a few additional guidelines in this regard.
3. Learned Advocates who represented the petitioners drew our attention to some of the earlier decisions of this Court in the following cases :
(1) Criminal Petition No. 697/1989, (2) Criminal Petition No. 142/1990, (3) Criminal Revision Petition No. 63/1993, (4) Criminal Petition No. 1126/1994, (5) Criminal Revision Petition No.. 725/1995 and (6) .
4. The consistent view taken in these cases is that since Section 200, Cr.P.C. prescribes that the Court shall examine the complainant ........ that it is not open to the complainant's learned Advocate to conduct the examination-in-chief and that if such a procedure is followed, that it is in breach of the mandatory provisions of Section 200, Cr.P.C. We need to record here that Venkataraman, J. in the decision had occasion to consider the following cases :
1. Cr. Petn. 142 of 1990 DD 19-4-1993 M/s. A. K. Agencies v. Krishna Murthy; 2. Cr. Petn. 697 of 1989 DD 12-4-1993 Andanappa v. Gurunath; 3. AIR 1948 Mad 424 : (49 Cri LJ 554) P. N. S. Iyer v. Nathan; 4. ILR 25 Mad 61 Subramanya v. King Emperior; 5. AIR 1927 PC 44 : (28 Cri LJ 259) Abdul v. King Emperor; 6. AIR 1947 PC 67 : (48 Cri LJ 533) Pukuri Katayya v. Emperor; 7. AIR 1922 Mad 443 : (23 Cri LJ 691); In Re : Ramaswami Iyenger; 8. AIR 1938 Bom 50 : (39 Cri LJ 214) Desaibhai Kushalbai; 9. AIR 1936 Pat 145 : (37 Cri LJ 285) Ramjas v. Purulia; 10. Jaffry v. State; 11. Api Samal v. Bisi Mall; 12. Mahabeer v. State; 13. In Re : Subramanya.
The learned Judge has drawn a distinction between the stage of recording of evidence when undoubtedly the complainant's learned Advocate would be very much in the picture and where the law permits the learned Advocate to conduct the examination-in-chief and the exercise that is undertaken at the stage of scrutinising the complaint and has held that the duty of undertaking this latter exercise is cast upon the Presiding Officer of the Court and that therefore, it must be carried out by him alone. Dealing with the second aspect of the matter namely the question as to whether the breach if committed would vitiate the entire proceeding or whether it is curable under Section 465, Cr.P.C. the learned Judge has held that it is a mere irregularity which could be set right by remanding the matter to the learned Magistrate for taking corrective action from that stage onwards, though, in this particular case, on facts, the High Court came to the conclusion that a remand was unnecessary as no case was made out for issuance of process.
5. We need to record here that the learned Advocates who represented the petitioners vehemently submitted that if the complainant's learned Advocate were to be permitted to carry out the examination-in-chief that it was not only a breach of the provisions of Section 200, Cr.P.C. but that it would completely nullify the provisions of that section and would in fact have the totally opposite effect of what was originally intended by the Legislature when this section was incorporated in the Cr.P.C. in 1973. They have demonstrated to us, and perhaps with considerable justification that a private complaint presented to the learned Magistrate is invariably drafted by an Advocate and that therefore, there could be a certain degree of padding, that there could be also a skillful orientation of facts, a clever slant in the projection and a skillful effort to bring the complaint within the ambit of the four corners of a penal section and that the sum total of this artful exercise very often results in process being issued in criminal cases against the opposite party even though there may not have been justification to do so. The learned Advocates have pointed out that this sets of a total chain re-action in so far as a lot of harassment is caused to the accused even during the service of process and thereafter, and that having regard to the load on the trial Courts and the appeal Courts that an accused is required to contend with the proceeding for a long period of time, to undergo harassment and expenditure, as it is an uphill task to demonstrate finally that there was no justification for the issue of process. We do see considerable force in this argument because the whole purpose of enacting Section 200, Cr.P.C. was in order to weed out unjustified litigation and the immediate fall out of such unjustified complaints is the heavy burden on the Courts until those proceedings are finally disposed of. Learned Advocates did also demonstrate to us the inevitable side effects of such litigations which could be used to coerce parties into settlements which is not the intention of the law and judicial process can never be abused with this end in view. The effort on the part of the learned Advocates was directed towards impressing on the Court the absolute need to tighten up the scrutiny procedure for purposes of ensuring that only valid and genuine complaints survive and that all the others are eliminated at the scrutiny stage. They have therefore submitted that the whole purpose of enacting Section 200, Cr.P.C. would be frustrated completely if the complainant's learned Advocate were to be permitted to carry out the examination-in-chief because in that event the complaint would be bodily reproduced in the examination-in-chief and there would be less scope for the Presiding Judge to be able to assess the genuineness of the grievance that has been projected. It was therefore submitted that it is absolutely imperative that the learned Advocate be precluded from taking any part in the scrutiny process so that the Court has an unrestricted opportunity of independently examining the complaint, ascertaining from the complainant and the witnesses as to what the true position is and deciding whether it should be entertained or not.
6. In this regard, we need to however sound a note of caution because all these arguments proceed on the assumption that false and vexatious complaints should not be allowed to survive but the learned S.P.P. was quick to point out that it is equally necessary to guard against the situation whereby no prejudice is caused in genuine cases. We are conscious of the practical difficulties which a complainant, educated or otherwise would face while reciting before a Court the ingredients of the complaint, the possibility of the complainant or witnesses being either nervous or confused, the possibility of the parties over-looking something vital and an adverse order resulting merely because the complainant's Advocate was precluded from assisting in the matter. It is equally necessary that the procedure should be so geared to afford relief in those of the cases where the complaints are valid and genuine and that it should not impede the course of justice.
7. Historically, it is necessary to point out that under the old Code of Criminal Procedure, the formal verification process was non-existent and the complaint was presented to the learned Magistrate and effectively, it was on the basis of the submissions made in the Court room for which there was no record, that the process was issued. The Law Commission in its recommendations had pointed out that in a large number of cases though the complaint confused itself to the facts and the submissions, that statements used to be made in the Court room which went far beyond whatever was stated in the complaint only for purposes of snatching the order of process and, at a later point of time it was realised that the Court had been misled. The recommendation to Parliament was therefore that some inbuilt mechanism be provided for which would ensure a due scrutiny prior to the issue of process and that this procedure should take care of the all important aspect of guarding against the Court being misled. It is for this purpose that Section 200, Cr.P.C. when it was recast, incorporated the requirement that the Magistrate shall examine the complainant and witnesses himself and record the substance of such examination which would be proof of the fact that such a procedure had been followed and if satisfied from the material produced before the Court that a prima facie case has been made out, should only then issue process. One of the views expounded in the decisions referred to by us is to the effect that the obligation to carry out this exercise which is cast on the learned Magistrate cannot be shifted or transferred to the complainant's Advocate because in that event, the Court would be abdicating its responsibility. It is in this context that we uphold the submission canvassed on behalf of the petitioners that where the section clearly prescribes that the examination of the complainant and witnesses shall be done by the Court, that it would be a breach of the provisions of the section if this duty were to be carried out by the complainant's learned Advocate. Such a step is contra-indicated for an additional reason in so far as it would bodily reproduce the complaint in the examination-in-chief and thereby contribute to the process of misleading the Court in those of the cases where a deliberate attempt at window dressing has been undertaken. It would run contra to the legislative intent which is directed towards affording the Court a free hand in scrutinising and verifying the genuineness and the correctness of the complaint and would therefore have no legal sanction. More importantly, it would result in a situation of grossly over-burdening the forum because the section does not provide for an elaborate examination-in-chief which would be extremely time consuming and burden some to the Court which is required to record all that material particularly in many instances where the evidence is hand-written. We have come across situations in which the so-called examination-in-chief has run into something like 25 pages and a mini trial has virtually taken place at the stage of issue of process. This was never the legislative intent when Section 200, Cr.P.C. was recasted, the object being to simplify the procedure which is why, the trial Magistrate is only required to record the substance of the examination. At this stage, we need to lay down very clearly and unambiguously, that a serious responsibility is cast on the Judicial Officer in this regard whereby it is essential that the learned Magistrate must scrupulously ensure that the statements of the complainant and the witnesses are briefly but very correctly and concisely summarised. The learned S.P.P. did bring it to our notice that having regard to what often happens before the trial Courts, prejudice should not result to the complainant because of the hurried procedure followed in rushing the party and the witnesses through their statements and critically recording hardly anything and thereby leaving out the essential requirements. Also, what needs to be pointed out is that since the complainant's Advocate is precluded from participating in this procedure that it should not result in failure of justice in so far as the Court will have to gather from the complaint and whatever other material is produced as to what is the nature of the dispute that has been referred to the Court and see to it that the complainant and the witnesses have an adequate and fair opportunity of briefly setting out that they desire to place before the Court. There would be, in this regard, situations in which the Court would have to put a few questions which may be essential for eliciting the complete facts and which may also be essential for purposes of reading between the lines. This briefly is the procedure which is desirable and which is essential while carrying out the verification process.
8. The next submission that was canvassed before us was that as far as the present petitions are concerned, since the verification has not been done by the Court but on the other hand, has been in the form of an elaborate examination-in-chief at the instance of the complainant's learned Advocate, that the order issuing process will have to he quashed and that the complaint would have to be dismissed. We have had occasion in this regard to point out that in one of the decisions, this view has not been followed and we have also had occasion to record that not every breach of procedure would result in rendering the proceeding void ab initio or for that matter would have the effect of categorising it as an illegality. Section 465, Cr.P.C. specifically makes provision for situations in which the breach is curable and in our considered view, the breach in question is most certainly rectifiable. If on facts and in law the complainant has made out a prima facie case merely because of an error that has taken place at the verification stage, it would not justify this Court quashing the entire proceeding. The correct procedure would be to set aside the order issuing process because it has emanated from, something erroneous and to remand the case back to the trial Court with a direction that the procedure as prescribed in this judgment be followed, that a de novo consideration be undertaken on the question of whether, on the material placed before the Court the issuance of process is justified and to pass fresh orders.
9. We need to however clarify that this does not mean that the complainant's learned Advocate is totally precluded from assisting the Court which could possibily be done by presenting a synopsis of the complaint to the Court in order to save some time and to summarise the nature of the real dispute and furthermore, even though the verification process is exclusively between the learned Magistrate and the complainant and witnesses that it would always be open to the complainant's learned Advocate to once again assist the Court by making the submissions with regard to the question of issue of process or otherwise as also on such finger points as to under which provision or section the process should be issued.
10. In the aforesaid situation, the reference is answered in the affirmative in so far as we uphold the position that Section 200, Cr.P.C. requires that the verification process shall be conducted by the court and not by the complainant's learned Advocate. We also reiterate the position in law that a breach of this procedure would not necessarily be fatal to the proceeding and that it is curable. In the view that we have taken, it will be necessary to formally set aside the order issuing process in these petitions and to remand the petitions back to the trial Court with the direction that the verification process be carried out by the Court and fresh orders be passed according to law. We need to reiterate in this regard that it was pointed out in the course of the arguments that this procedure has been taking an abnormally long period of time before the trial Courts causing undue burden to the complainants. The learned Magistrate shall accordingly ensure that this procedure is simply, effectively and expeditiously carried out.
11. The petitions accordingly succeed and stand disposed of. In the view that we have taken, we do not consider it necessary to formally remand the petitions to the learned single Judge for disposal as the petitions are liable to be allowed in the light of the law as laid down in this judgment.
12. The learned Advocates appearing in these petitions as also the learned S.P.P. very rightly point out to the Court that it is very necessary that copies of this judgment be circulated to the Judicial Officers dealing with all these cases. For this purpose, the Registrar General shall ensure that copies of this judgment are circulated to all the learned District Judges who in turn shall ensure that it is brought to the notice of the subordinate Judicial Officers.
13. Order accordingly.