Charan Rout and ors. Vs. Prafulla Kumar Mangaraj - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 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 (b) 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 202. (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. the proviso which is mandatory in nature comes into operation where it appears to the magistrate that the offence complained of is triable exclusively by the court of session. the first part of proviso to sub-section (1)of section 202 requires that if it appears to the magistrate that offence complained of is triable exclusively by the court of session, he would not order investigation but would have the inquiry made by himself. the proviso to sub-section (2) is relatable to cases exclusively triable by the court of session and that proviso requires that if it appears to the magistrate that the offence complained of is triable exclusively by the court of session, he has to call upon the complainant to produce all his witnesses and examine them on oath. this necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the court of session. again, in paragraph 18. 29 (chapter xviii) dealing with 'procedure in complaint cases',the commission recommended :as regards the small number of sessions cases that may be instituted on complaint, it would obviously be convenient if they were also brought before a magistrate in the first instence; the combined effect of these two provisions will be to place a person accused of a grave offence by a private complainant in a some-what better position than one charged with a similar offence on the basis of a police investigation. however, to perform certain preliminary functions like granting copies, preparing the records notifying the public prosecutor, etc. it would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing fully well the consequences. if the complainant chooses to exclude any person named as a witness, he should file a memorandum in the court clearly indicating that he does not want to examine any particular person as a witness though named in the complaint petition or to the effect that except those tendered for giving evidence, none else would be examined.a. pasayat, j.1. the scope and ambit of proviso to sub-section (2) of section 202 of the code of criminal procedure, 1973 (hereinafter referred to as 'the code') so far as it relates to the expression 'ail his witnesses' appearing therein is the subject-matter of reference by a learned single judge, who felt it necessary to refer the matter to a division bench, as he noticed cleavage of views. while some of the learned single judges held that the expression 'all his witnesses' includes the complainant, others held otherwise. the proviso is a new introduction and has no pari materia provision in the code of criminal procedure, 1898 (in short, 'the old code'). the learned judges who subscribed the view that the expression 'all his witnesses' includes complainant have emphasised on the fact that complainant is the star witness and therefore, comes under the umbrella of the expression 'all his witnesses'. while expressing the contrary view, other hon'ble judges have highlighted that the choice to examine the witnesses being that of the complainant, there is no legal compulsion on the complainant examining himself.2. the pivotal provision section 202 in its entirety reads as follows :'202. postponement 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 202, may, if he thinks fit. 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 (b) 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 202. (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 court on an officer in-charge of a police station except the power to arrest without warrant.' 3. section 202 deals with postponement of issue of process after complainant is examined. we are primarily concerned with the provis6 to sub-section (2) of section 202, which has reference to an inquiry under sub-section (1). sub-section (1) of section 202 empowers any magistrate to postpone issue of process against the accused and to 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. under sub-section (2) the magistrate may, if he thinks fit, in an inquiry under sub-section (1), take evidence of witnesses on oath. the proviso which is mandatory in nature comes into operation where it appears to the magistrate that the offence complained of is triable exclusively by the court of session. in such a situation he is obligated to call upon the complainant to produce all his witnesses and examine them on oath.the expression 'all his witnesses' has been construed to mean 'all the witnesses whom the complainant chooses to examine'. the complainant is given opportunity to produce witnesses and it is open to him to produce all or some of the witnesses in the inquiry. while he adopts the latter recourse, he is to intimate the court that no other witness is proposed to be examined by him. only those witnesses who in the opinion of the complainant are necessary to be examined can be rendered by him for examination. if the complainant makes it clear as to which of the witnesses he proposes to examine, the magistrate need not examine other witnesses. section 202 deals with examination of the complainant. a magistrate taking cognizance of an offence on complaint is required to examine upon oath the complainant, and the witnesses present, if any, and the substance of such examination is required to be reduced to writing and to be signed by the complainant and the witnesses and also by the magistrate. examination of the complainant is a procedure which adds to the credibility of the complainant at the initial stage. complaint is the foundation of the entire proceeding. so it should have credibility which is provided by examining the complainant on oath as regards statements in the complaint.4. the object of section 202 is to ensure that process of law is not abused. it intends to prevent issue of process in case where the examination of the complainant would show that the complaint was mala fide, frivolous or vexatious. under the section as it stood prior to its amendment in 1955, it was enough if the magistrate examined the complainant. the section after the amendment and presently makes it incumbent on him to examine not only the complainant, but also the witnesses present, if any, upon oath. witnesses are to be examined only if they are present. the first part of proviso to sub-section (1)of section 202 requires that if it appears to the magistrate that offence complained of is triable exclusively by the court of session, he would not order investigation but would have the inquiry made by himself. the proviso to sub-section (2) is relatable to cases exclusively triable by the court of session and that proviso requires that if it appears to the magistrate that the offence complained of is triable exclusively by the court of session, he has to call upon the complainant to produce all his witnesses and examine them on oath. clause (a) of the proviso to sub-section (1) and the proviso in sub-section (2) may be read together as they intend to cover a common class of cases, namely, offences exclusively triable by the court of session. to repeat for clarity it would mean that in cases which appear to be triable exclusively by the court of session, the magistrate has to make an inquiry himself and in such inquiry, the complainant has to produce all his witnesses who are to be examined on oath. on the basis of the result of inquiry, in cases where inquiry has been considered necessary, the learned magistrate has to decide whether there is sufficient ground to proceed and on reaching his judicial conclusion, proceed to take action under section 204 of the code. section 204 is the common provision for issue of process covering cases where there is inquiry or investigation or where there is none. in section 208 of the code dealing with trial by court of session in cases of private complaints, provision has been mad requiring the magistrate while issuing process under section 204 to ensure that the accused is furnished with the documents indicated in the three clauses appearing therein.clause (a) to the proviso in sub-section (1) and the proviso in sub-section (2) of section 202 of the code are for the first time incorporated in the new code of 1973. the law commission in its 41st report dealt with the new code of criminal procedure, 1973. its recommendation to abolish common inquiries was accepted by parliament. in its report in paragraph 16.11 in chapter xvi relating to complaints of offences triable exclusively by the court of session, the law commission stated :'we are recommending in a subseqent chapter the abolition of commitment inquiries. this necessitates certain amendments in the procedure to be followed in an inquiry into complaints where the offence complained of is one triable exclusively by the court of session. we recommend that the magistrate who takes cognizance of such offence on complaint must himself take cognizance of such offence on complaint must himself make an inquiry into the complaint, and call upon the complainant to produce all his witnesses and examine them on oath. further, in such cases the magistrate should not direct an investigation by a police officer or other person. for this purpose, we propose two amendments of section 202 in the form of another proviso to sub-section (1) and a proviso to sub-section (2).'and in paragraph 16. 12, the proposed section 202 which finds place in the code now was indicated. again, in paragraph 18. 29 (chapter xviii) dealing with 'procedure in complaint cases', the commission recommended :'as regards the small number of sessions cases that may be instituted on complaint, it would obviously be convenient if they were also brought before a magistrate in the first instence; but we do not consider it necessary to retain the elaborate provisions contained in sections 208 to 220 which lay down the procedure for committing such cases to the court of session. the object of this procedure is to get all prosecution witnesses examined by the magistrate in the presence of the accused in order that the accused may have a full idea of the case which is brought against him. we propose that in such cases it will be sufficient if the magistrate taking cognizance of the offence on complaint holds an inquiry under section 202 and examines the complainant and all his witnesses on oath, but not in the presence of the accused. if on the basis of such sworn statements he finds that there is 'sufficient ground for proceeding' he should issue process to the accused as provided in section 204. he should then grant to the accused copies of the statements of all persons examined by the magistrate and other material on which the prosecution relies in order that the accused may get adequate information about the charge against him and prepare for his defence. the combined effect of these two provisions will be to place a person accused of a grave offence by a private complainant in a some-what better position than one charged with a similar offence on the basis of a police investigation. in the former case, a preliminary inquiry by a magistrate into the truth of the complaint is made mandatory and takes the place of an investigation by the police. the accused gets copies of the statements of all prosecution witnesses recorded by the magistrate in the former case and the statements recorded by the police under section 161(3) in the latter case. with these safeguards which appear to us to be sufficient, we consider that committal proceedings could be dispensed with for complaint cases also.' the recommendations of the law commission were duly considered by the parliamentary joint select committee and in due course by the parliament itself. with reference to clause 214 of the bill, the following note appeared in the statement of objects and reasons :'preliminary inquiries by magistrate in cases exclusively triable by the court of session are being dispensed with as such an inquiry has served no useful purpose and, on the contrary, it involves a great deal of infructuous work causing delay in the trial of serious cases. the abbreviated form of inquiry provided for by the amendments made in 1955 and contained in section 207a has been the subject of controversy and opinion is almost unanimous that this procedure while solving no problems, created fresh problems. preliminary inquiries are, therefore, being dispensed with in cases triable by a court of session. however, to perform certain preliminary functions like granting copies, preparing the records notifying the public prosecutor, etc., provision is being made that the magistrate taking cognizance of the case will perform these preliminary functions and formally commit the case to the court of session. as regards private complaints in cases triable exclusively by a court of session, the inquiry into the complaint by the magistrate under the existing section 202 will serve the purpose of a preliminary scrutiny.'ultimately, section 202. as redrafted by the law commission, was incorporated in the new code.5. the object of procedure prescribed by chapter xv of the code (containing sections 200 to 203) which is entitled 'complaints to magistrates' is the separation of unfounded cases from substantial cases at the outset and to prevent innocent persons from being brought into the police courts and subjected to the annoyance of frivolous charges. section 202 is a healthy provision to check frivolous complaints and, if not carefully followed may lead to great injustice particularly in cases where large number of accused are charged with various offences. the object of the inquiry is to find out whether there are sufficient grounds or not for further proceeding. it is not in the nature of a trial. the proceeding under section 202 is not a proceeding between the complainant and the accused. whenever a magistrate has to form an opinion whether there is sufficient ground for proceeding on a complaint, he has to take into consideration (1) the complaint, if it is made in writing, (2) the statement on oath of the complainant and his witnesses, if any; (3) and the result of inquiry or investigation, if any, made under the section.6. combined reading of sections 200 and 202 shows that while for the purpose of section 200 the complainant and the witnesses present are examined upon oath, in respect of the proviso to sub-section (2) of section 202, the magistrate is required to call upon the complainant to produce all his witnesses. section 202 comes into operation when the magistrate after examining the complainant and his witnesses present, if any, under section 200 has reasons for distrust and thinks that he would not be justified in issuing process without taking some further steps to ascertain whether the allegations are prima facie true or not. the object appears to enable the magistrate to form an opinion as to whether process should be issued or not. where a prima facie case has been made out on the materials placed before him, the magistrate is bound to commit the accused fop trial.7. the examination under proviso to sub-section (2) of section 202 is in addition to the examination under section 200. in the latter the complainant and the witnesses present are examined. but in the former the requirement is to call upon the complainant to produce all his witnesses. during examination under section 200 the substance of examination of the complainant and the witnesses present is reduced to writing. - there is no such embargo while the witnesses are examined under the proviso to sub-section (2) of section 202. the magistrate is mandated to call upon the complainant to produce all his witnesses and is not required to indicate as to which of the witnesses is to be examined. the expression 'all his witnesses' appearing in the proviso to sub-section (2) of section 202 has to be construed to mean 'all witnesses which he chooses to examine'. any other construction would lead to absurd results, and go against spirit of the enactment. let us take a hypothetical case. complainant comes to know that one of the named witnesses has been gained over and is likely to give a different version what is reality. it would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing fully well the consequences. if the complainant chooses to exclude any person named as a witness, he should file a memorandum in the court clearly indicating that he does not want to examine any particular person as a witness though named in the complaint petition or to the effect that except those tendered for giving evidence, none else would be examined. the provision for examination of complainant's witnesses as required under sub-section (2) of section 202 is mandatory. if they are not so examined, the accused will not be in a position to point out the contradictions when they give evidence in the court of session. there is no investigation of a private case by the police and prior statements of witnesses under section 161 of the code are not available. that is why the provision for recording statements has been made.8. the choice being that of the complainant, he may choose not to examine himself. consequences of such non-examination are to be considered by the court during trial. effect of non-examination of a particular witness is a matter which comes for scrutiny during trial. similar would be the process in case of non-examination of complainant. but there is no statutory mandate for the magistrate to direct complainant to examine himself. his duty ends by calling upon the complainant to produce all his witnesses. the question whom the complainant would choose to examine and effect of non-examination of any particular witness are not dealt with in the proviso to sub-section (2) of section 202.9. in our view, therefore, the magistrate has no statutory obligation to call upon the complainant to examine himself as a witness. he is only required to call upon the complainant to produce all his witnesses and examine them on oath. he cannot force the complainant to examine himself. the expression 'call upon'' means essentially 'require', 'direct'. what is to be directed under the proviso is the production of all the witnesses, and their examination on oath.the reference is answered accordingly. the matter be placed before the learned single judge for further hearing of the case on merits.a. deb, j.i agree.