JUDGMENT T.S. Misra, J.
1. Mohammad Jalil Ashraf Opposite Party No. 1 filed a complaint dated 20th September, 1972 in the Court of Judicial Magistrate, Barabanki under Sections 147, 447, 384, 342, 379 and 504, Indian Penal Code. His statement was recorded under Section 200, Cr. P.C. (old) on 21st October, 1972. Thereupon on the same day the learned Magistrate passed the following orders:
The complainant examined under Section 200, Cr. P.C. Grounds sufficient. The accused shall be summoned for 25-11-1972 for an offence under Section 395, I.P.C. The complainant shall take necessary (illegible) today.
Summonses were accordingly issued to the accused persons. The accused 5 and 6 appeared before the learned Magistrate on 25th November, 1972 and they were granted bail. The accused 1 to 4 appeared before the learned Magistrate on 22nd December, 1972 and were also granted bail. The learned Magistrate fixed 6th March, 1973 for recording evidence. The case was ultimately taken on 13th April, 1973 and the statement of one Kesho Nandan Srivastava P. W. 1 was recorded who filed two documents as well. The statement of the complainant was recorded on oath on 14th September, 1973 but it remained incomplete; hence further statement of the complainant was recorded on oath on 15th September, 1973 and the case was adjourned to 23rd November, 1973 for recording the rest of his statement. It was again adjourned to 30th January, 1974 and later to 18th April, 1974. The case was then posted for 25th April, 1974 for arguments.
In the meantime the new Code of Criminal Procedure (Act No. 2 of 1974) came into operation with effect from 1st April, 1974. The learned Magistrate heard the complainant and his counsel and the accused persons and their counsel on 20 the July, 1974 and it appeared to the learned Magistrate that it was a matter under Section 395, I.P.C. triable exclusively by the Court of Session, hence he committed the case to court of session. All the accused were on bail and they were allowed 15 days time for obtaining orders for bail from the court of session. The learned Magistrate committed the case to the Court of Session and sent along with the committal order a calendar mentioning the names of the accused persons and the names of the witnesses for the prosecution. The case was registered as S. T. No. 227A of 1974 in the court of First Additional District and Sessions Judge, Barabanki who framed charges against the accused persons on 19th November, 1976, An application 13-B was filed before the learned First Additional District and Sessions Judge not to allow the prosecution to examine any other witness except Jalil Ashraf who alone was examined before the learned Magistrate. This application was rejected by the learned First Additional District and Sessions Judge vide order dated 30th November, 1976. Against the order, the accused persons filed the instant Criminal Revision No. 97 of 1977.
2. This revision was heard by a learned single Judge before whom it was urged that no evidence other than that of the complainant could be recorded in the trial as no other witness was examined during the commital proceedings and that the commitment itself was illegal because the learned committing Magistrate had not followed the provisions of the proviso to Section 202(2), Cr. P.C. It was, therefore, submitted before the learned single Judge that in such a case the proper procedure for the court would be to quash the commitment proceedings and direct the Magistrate (to re-start) with the new Criminal Procedure Code. In support of the contention reliance was placed before the learned single Judge on Parsuram v. Radhey Shyam. (1977) 3 All LR 508. Gyanendra Nath Awasthi v. State 1977 All WC (Journal) 21 and Chandra Ketu v. State, Criminal Revn. No. 76 of 1976 decided on 27th January, 1977. The learned single Judge felt that the cases of Parsu Ram (supra) and Gyandendra Nath Avasthi (supra) required reconsideration by a larger Bench and therefore referred the case to a larger Bench. That is how the Criminal Revision No. 97 of 1977 has been placed before us.
3. The learned Counsel for the applicants reiterated his submission which he had made before the learned single Judge and submitted that the commitment proceedings be quashed and the Magistrate be directed to restart the same in accordance with the new Cr. P.C. The revision application has been opposed by the learned Government Advocate who submitted that on the facts of the case it was not necessary for the Magistrate to call upon the prosecution to produce all the witnesses before him before committing the case to Sessions Court,
4. It may be noticed that the complaint was filed when the old Criminal Procedure Code was in operation. The order committing the case to the sessions was, however, passed when the new Cr. P.C. had been enforced. We shall, therefore, first examine the relevant provisions of the old Criminal Procedure Code.
5. Section 190 of old Code empowered the Magistrate to take cognizance of any offence upon receiving a complaint of facts which constituted such offence. When a Magistrate took cognizance of an offence on complaint, he was required under Section 200 to examine the complainant and the witnesses present if any, upon oath and to reduce to writing the substance of the examination which was to be signed by the complainant and the witnesses, if any and also by the Magistrate. Section 202 provided that any Magistrate on receipt of a complaint of an offence of which he was authorised to take cognizance might, if he thought fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, then either inquire into the case himself or, if he was a Magistrate other than a Magistrate of the third class, direct an inquiry or investigation to be made by any. Magistrate subordinate to him, or by a police officer or by such other person as he thought fit for the purpose of ascertaining the truth or falsehood of the complaint.
Sub-section (2-A) of Section 202 stipulated that any Magistrate inquiring into a case under this section might, if he thought fit, take evidence of witnesses on oath. The Magistrate may, after considering the statement of oath, if any, of the complainant and the witnesses and the result of the investigation or inquiry, if any, under Section 202 dismiss the complaint under Section 203 if there was in his judgment no sufficient ground for proceeding. However, if in his opinion there was sufficient ground for proceeding, the Magistrate was empowered to issue a summons or warrant as the case may be under Section 204 but no summons or warrant could be issued against the accused until a list of prosecution witnesses had been filed. The Magistrate had power to commit for trial any person to the court of session under Section 206, Cr. P.C. for an offence triable by such court. Section 208, Cr. P.C. provided that in any proceeding instituted on a complaint when the accused appeared or was brought before the Magistrate, he was to hear the complainant and take all such evidence as might be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate himself. Section 209 provided that when the evidence referred to in Section 208 had been taken and the Magistrate had examined the accused for the purpose of enabling him to explain any circumstances appearing in evidence against him, he shall, if he found that there are not sufficient grounds for committing the accused persons for trial, record his reasons and discharge him.
Section 213 provided that when the accused on being required to give in a list under Section 211, had declined to do so, or when he had given in such list and the witnesses, if any, included therein whom the Magistrate desired to examine had been summoned and examined under Section 212, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session as the case may be. A commitment once made under Section 213 could be quashed by the High Court only and that too only on a point of law vide Section 215, Cr. P.C. In the case in hand the Magistrate took cognizance of the complaint and recorded that statement under Section 200, Cr. P.C. (old) on 21st October, 1972. After considering that statement it appeared to the learned Magistrate that there was sufficient ground for proceeding in the case. He, therefore, ordered the accused to be summoned for 25th November, 1972 for an offence under Section 395, I.P.C. The offence under Section 395, I.P.C. is triable by a court of session. The accused persons thereafter appeared before the Magistrate who then examined Kesho Nandan Srivastava on 13th April, 1973 and examined the complainant on oath on 14th September, 1973 and 15th September, 1973, This was obviously done under Section 208. It was a proceeding under Chapter XVIII of the Code of Criminal Procedure. The statement of the complainant was not complete on 15th September, 1973 and the case was adjourned. It was ultimately posted for 18th April, 1974 for recording further statement of the complainant. In the meantime the new Criminal Procedure Code came into operation with effect from 1st April, 1974. Sub-sections (1) and (2)(a) of Section 484 of the Cr. P.C. (new) which are relevant for the discussion read as follows:
484. (1) The Code of Criminal Procedure 1898 (V of 1898) is hereby repealed.
(1) Notwithstanding such repeal,-
(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry, or investigation shall be disposed of, continued, held or made, as the case may be in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898), as in force immediately, before such commencement, hereinafter referred to as the (old Code), as if this Code had not come into force.
6. In view of the proviso to Sub-section (2)(a) every inquiry under Chapter XVIII of the old Code which was pending at the commencement of the new Code is required to be dealt with and disposed of in accordance with the provisions of the new Code. In the instant case inquiry under Chapter XVIII of the old Cr. P.C. was pending at the commencement of the new Cr. P.C. hence that inquiry was to be dealt with and disposed of in accordance with the provisions of the new Code.
7. The learned Counsel for the applicants submitted that on the enforcement of the new Code the old inquiry was to be quashed and fresh inquiry was to be initiated in accordance with the provisions of the new Cr. P.C. and the learned Magistrate should, therefore, have called upon the complainant to produce all his witnesses before him and recorded their statements on oath and thereafter should have taken further proceedings in accordance with the new Cr. P.C. In support of his contention the learned Counsel relied on Gyanendra Nath Awasthi v. State Criminal Misc. Appln. No. 4944 of 1974 decided on 30th September, 1975 Reported in 1977 All Cri R 15 by Hon. K.B. Asthana, C.J. The ratio of this case was followed by Hon. D. M. Chandrashekhar, J. (as he then was) in Parsuram v. Radhey Shyam 1977-3 All LR 508 (supra). The learned Counsel also placed reliance on Chandra Ketu v. State, Criminal Revn. No. 76 of 1976 decided by Hon. G.D. Srivastava, J. on 27th January, 1977.
8. In Gyanendra Nath Awasthi's case it was held that the pending proceedings under Chapter XVIII of the old Code from 1st April, 1974 would be held in accordance with the provisions of Chapters XV and XVI of the new Code, as the case may be, from the very inception and that unless old proceedings under Chapter XVIII in the court which remain incomplete till 1st April, 1974 are wiped out and ignored, it will not be possible to apply the provisions of the new Code as the scheme under the new Code relating to inquiry is entirely different. It was further held that there was nothing in the proviso to Clause (a) of Sub-section (2) of Section 484 of the new Code which saves and preserves in part all those proceedings in the sense that even if they are incompatible with the new procedure, the court will abide by it ignoring the new procedure. His Lordship, therefore, held that the Magistrate was bound by the provisions of Chapters XV and XVI of the new Code and he ought to follow the provisions thereunder in the inquiry before him. The case being triable exclusively by the Court of Session, the Magistrate is bound to examine on oath all the witnesses of the complainant. Under the proviso to Sub-section (2) of Section 202 of Chapter XV, it is only when he has considered the statement of the complainant and his witnesses so examined on oath under Section 202 of the new Code and found a prima facie case that he will issue summons or warrant as the case may be to commit the case to the Court of Session after furnishing without delay to the accused free of cost copy of statements recorded under Section 200 and Section 202 of all persons examined by him and copy of any document filed in the case.
9. With respect, we are unable to agree with the view taken in Gyanendra Nath Awasthi's case 977 All WC (Journal) 21. The proviso to Sub-section (2)(a) of Section 484, Cr. P.C. (new) requires that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of the new Code shall be dealt with and disposed of in accordance with the provisions of the new Code. Chapter XVIII of the old Code starts with Section 206. The proceedings under Chapter XVIII obviously would take place when the accused appeared or was brought before the Magistrate. As pointed out earlier, if a complaint was filed before a Magistrate, he was empowered to take cognizance of the offence under Section 190 of the old Code. Upon taking cognizance, the Magistrate was required to examine the complainant and the witnesses, if any, upon oath under Section 200, old Code. This proceeding was taken under Chapter XVI of the old Code. Then, if the Magistrate became of the opinion that there was sufficient ground for proceeding, he could order issuance of process under Section 204 of the old Code in Chapter XVII thereof. It was when the accused appeared or was brought before the court that proceedings under Chapter XVIII were to start against him and if any proceeding was taken under Section 208 of Chapter XVIII of the old Code and that proceeding was pending on the date of the enforcement of the new Code then that proceeding was to be dealt with and disposed of in accordance with the provisions of the new Code. Under the new Code a Magistrate can order investigation under Section 156(3) only at the pre-cognizance stage, that is to say, before taking cognizance under Sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter XIV, i.e. under Section 190 he is not entitled in law to order any investigation under Section 156(3) though in cases not falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by Section 202 of the Code. It was pointed out by the Supreme Court in Tula Ram v. Kishore Singh that where a Magistrate chooses to take cognizance, he can adopt any of the following alternanatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding, he can straightway issue process to the accused but before he does so, ha must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.
In the case the Magistrate after considering the statements of the complainant and the witnesses or as a result of the investigation and the inquiry ordered is not satisfied that there are sufficient grounds for proceeding he can dismiss the complaint.
Under the new Criminal Procedure Code the committing Court when the accused appears or is brought before the Court, need not take any evidence but has only to see whether the case is exclusively triable by the Court of Session. See Superintendent and Remembrancer of Legal Affairs, West Bengal v. Ashutosh Ghosh . In the case of Sanjay Gandhi v. Union of India certain propositions under the new Code bearing upon the committal of cases where the offence is triable exclusively by the Court of Session were elucidated. The Supreme Court observed:
The Committing Magistrate in such cases has no power to discharge the accused, Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers. No examination-in-chief, no cross-examination.
Secondly, it is not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on the merits, The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. Therefore, to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliament's purpose in remoulding Section 207-A (old Code) into the present non-discretionary shape. Expedition was intended by this change and this will be defeated successfully, if interpretatively we hold that a dress rehearsal of trial before the Magistrate is in order, In our view, the narrow inspection hole through which the committing Magistrate has to look at the case limits him merely to ascertain whether the case, as disclosed by the police report, appears to the Magistrate to be an offence triable solely by the Court of Session, Assuming the facts to be correct as stated in the police report, if the offence is plainly one under Section 201, I.P.C. the Magistrate has simply to commit for trial before the Court of Session. If, by error, a wrong section of the Penal Code is quoted, he may look into that aspect, Shri Mulla submits if the Magistrate's jurisdiction were to be severely truncated like this the prosecution may stick a label mentioning a sessions offence (if we may use that expression for brevity's sake) and the accused will be denied a valuable opportunity to prove his ex facie innocence. There is no merit in this contention. If made-up facts unsupported by any material are reported by the police and a sessions offence is made to appear, it is perfectly open to the Sessions Court under Section 227, Cr. P.C. to discharge the accused. This provision takes care of the alleged grievance of the accused.
10. Under the new Cr. P.C. when the accused had already been summoned under the old Code, the only thing left for the Magistrate was to take proceedings under Sections 208 and 209. Under Section 208 where the offence is triable exclusively by the Court of Session, the Magistrate shall furnish to the accused free of cost of a copy of each of the followings:
(i) the statements recorded under Section 200 or 202, of all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under Section 161 or Section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Thereafter the Magistrate shall commit the case to the Court of Session under Section 209. In our view, it would neither lead to incongruity nor to any anomalous results if the subsequent stages of the proceedings as contemplated by Sections 208 and 209 of the new Cr. P.C. are taken without rendering the proceedings already taken under the old Code of Criminal Procedure as invalid. In fact all the proceedings taken under the old Criminal Procedure Code prior to the enforcement of the new Code would not be rendered invalid or useless.
In the present case, the Magistrate had taken cognizance and had recorded the statement of the complainant under Section 200 and thereafter he had issued process under Section 204 and the accused persons had appeared before the Magistrate. Thereafter the statement of one witness of the complainant was recorded and the statement of the complainant was in the process of being recorded. The proceedings of recording the statement of the witness for the complainant as also the complainant himself were being taken under Chapter XVIII of the old Code. Under the new Code it is not necessary to record the statement of the complainant or any witness of the complainant after the accused had appeared or was brought before the Magistrate.
The view which was taken in Gyanendra Nath Awasthi's case 1977 All WC (Journal) 21 (supra) does not seem to be correct. The proviso to Sub-section (2)(a) of Section 484, Cr. P.C. (new) does not say in specific terms that all the proceedings taken before the enforcement of the new Cr. P.C. shall be 'wiped out and ignored' and that the Magistrate shall start the proceedings de novo in accordance with the provisions of the new Code. Had that been the intention of the legislature, there was no difficulty in saying so in the proviso. This is also not spelled out by necessary implication. Rather, the proviso saves the proceedings already taken and says that every inquiry under Chapter XVIII of the old Code which was pending at the commencement of the new Code shall be dealt with and disposed of in accordance with the provisions of the new Code. The words used are "dealt with and disposed of". These words cannot be held to imply that the enquiry under Chapter XVIII of the old Code pending at the commencement of the new Code, shall be "wiped out and ignored". Rather, that enquiry is to be "dealt with" and "disposed of". We find support, in the view we have taken, from Shakti Narayan v. Bhasani Lachu 1975 Cri LJ 995 (Orissa) wherein it was laid down:
In this case the accused had already appeared before the Magistrate and as the committal proceeding was pending by the date of the coming into force of the new Code, the Magistrate shall proceed with the committal proceeding in accordance with the provisions of the new Code which does not prescribe that any evidence is to be taken.
The same view was expressed by the Kerala High Court in Kochu Mohammed v. State of Kerala 1977 Cri LJ 1867.
11. The contention of the learned Counsel for the applicants that if the statement of all the witnesses of the complainant were not recorded under Section 202, the accused would be greatly prejudiced is not sound. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi . the Supreme Court laid down:
At the stage of issuing process the Magistrate is mainly concerned with the allegation made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in the revisional jurisdiction which is a very limited one.
The scope of the enquiry under Section 202 is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint -- (i) on the materials placed by the complainant before the Court, (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact, in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.
It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. 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 the Supreme 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. These considerations are totally foreign to the scope and ambit of an inquiry under Section 202 which culminates into an order under Section 204." Moreover, in the instant case, the learned first Additional District and Sessions Judge has in the impugned order safeguarded the interest of the accused by ordering the complainant to furnish the gist of evidence of all the witnesses whom he intends to examine in the trial to the defence within ten days so that the interest of the accused persons may not be prejudiced and they may be given proper opportunity to cross-examine the witnesses when examined in the course of trial. He further says that if even then the defence feels any prejudice the examination-in-chief of all the witnesses shall be recorded first and thereafter the defence may cross-examine all of them on that very day or some other day.
12. We find no merit in the contention that when the trial is to commence in the sessions the evidence was to be confined only to the complainant who alone was examined as a witness and that the complainant should not be allowed to examine any other witnesses because no witness was examined by him during the committal proceedings. Now under the new Cr. P.C. it is not the requirement of law that after the process has been issued to the accused for appearance and the accused has appeared or is brought before the Magistrate, the complainant should produce all his witnesses. Under the proviso to Sub-section (2) of Section 202 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 but the proceeding under Sub-section (2) of Section 202 takes place prior to the issuance of process, Once the Magistrate issues process under Section 204, he has to comply with the requirement of Section 208 and to commit the case under Section 209 to the Court of Session.
In the present case, the Magistrate had already issued the process under Section 204 of the old Cr. P.C. prior to the enforcement of the new Cr. P.C. and had, in fact, commenced proceedings under Chapter XVIII of the old Cr. P.C. Under that Chapter evidence was to be recorded before committing the case to the Sessions but under the new Cr. P.C. evidence is not to be recorded after the process had been issued under Section 204. The prosecution is entitled under Section 231, Cr. P.C. to produce witnesses in support of the prosecution and the Sessions Judge shall take all such evidence as may be produced in support of the prosecution. This section in no way restricts the right of the prosecution with regard to the witnesses to be called. It is at liberty to examine witnesses which it has not produced in the court of committing Magistrate. However, in fairness to the accused the prosecutor should state in his opening address the names of the witnesses whom it proposes to call and the purpose for which each is to be produced. The impugned order of the learned First Additional District and Sessions Judge is in like terms. On the facts of the case we find no valid reasons to quash the commitment proceedings.
13. There is no merit in the revision petition. It is accordingly dismissed.