Full Judgment
Gurdev Singh, J.
1. The counsel for both the parties as well as for the State support the recommendation of the learned Sessions Judge, Kapurthala, dated 1st October, 1960. It is agreed on all hands that the procedure followed by the Magistrate is not warranted by law. The case was brought before the Magistrate on a private complaint instituted by Shrimati Gurdev Kaur, complaining of an offence under Section 302/34 of the Indian Penal Code against Bukan Singh and others. Under Chapter 18 of the Code of Criminal Procedure, the enquiry into such a case, which was triable by the Court of Sessions, had to be conducted in accordance with the procedure laid down by Sections 208 to 213 of the Criminal Procedure Code.
The record of the proceedings of the Magistrate, however, indicates that he ignored these provisions of law and conducted the enquiry proceedings under Section 207-A of the Criminal Procedure Code, which applies to a case instituted on a_ Police report. On 20th July, 1960 he ordered that 'witnesses to the actual commission of the offence be summoned for 27-7-60;' On the latter date, he recorded the statements of only four prosecution witnesses, though as many as 28 witnesses had been cited by the complainant to the list attached to her complaint. Thereafter, the learned Magistrate examined the accused and committed them for trial to the Court of Session.
2. The legislature, in its wisdom, has prescribed different procedures for cases instituted on the Police report and these brought before a Magistrate for enquiry by a private complainant. In the latter type of cases, it is necessary that all evidence, upon which the complainant relies must be examined. This is not only because there must be material before the Public Prosecutor who is to conduct the trial in the Court of Sessions to enable him to do justice to the case, but also to inform the accused of the material upon which the complainant relies in proof of his alleged guilt.
In cases instituted on Police complaints, the copies of all the papers on which the Police relies, including the statements of the prosecution witnesses under Section 161 of the Criminal Procedure Code are supplied to an accused person at the commencement of the proceedings, and thus he has ample notice of the material on which his prosecution is based. This is not so in the case of private complaints. It is only after the evidence is led in Court in the course of enquiry proceedings under Chapter 18 that the accused is informed of the nature of the evidence against him. Obviously, unless that evidence is recorded in the enquiry proceedings, the accused will be greatly prejudiced in his defence at the trial because he would be taken by surprise and may not be even prepared to cross-examine the witnesses who were not produced in the committing Court.
3. Under Section 208 of the Criminal Procedure Code, it is obligatory on the Magistrate to record all the evidence produced by the prosecution or the complainant. Even where the complainant refuses to adduce all the evidence upon which he relies, the Magistrate is entitled to call for such evidence before examining the accused or ordering his commitment. This power has to be exercised in the interest of justice and to ensure that there is no undue harassment of an innocent person.
The Magistrate has to apply his mind to the facts of each case, and any attempt to curtail the proceedings in order to get rid of the case and pass it on to the Court of Session cannot but be deprecated. Both as a Sessions Judge and as a Judge of this Court, I have noticed a lamentable tendency in the Magistrates conducting enquiry proceedings under Chapter 18 of the Code of Criminal Procedure to pass on the case to the Court of Sessions without recording adequate evidence to justify the order of commitment. This not only results in harassment of innocent persons but also in wastage of time of the Court of Session and needless expense to the State.
4. For the reasons stated above, I accept the recommendation of the learned Sessions Judge and quash the order of commitment, dated 12th August, 1960. The records shall be forwarded to the Additional District Magistrate, Kapurthala, for conducting the enquiry proceedings under Chapter 18 of the Criminal Procedure Code, in accordance with law and in the light of my above observations, either himself or by some Magistrate subordinate to him, other than the Magistrate who had previously dealt with the case. The parties are directed to appear before the Additional District Magistrate, Kapurthala, on 3rd April, 1961.