IN THE HIGH COURT OF KERALA
FULL BENCH
Crl. M.C. Nos. 974 of 1984 and 17 of 1985
Decided On: 20.03.1987
Moideenkutty Haji
Vs
Kunhikoya and Ors.
Hon’ble Judges/Coram:
S. Padmanabhan, K.T. Thomas and K.G. Balakrishnan, JJ.
Citations: AIR 1987 Ker 184,MANU/KE/0045/1987
S. Padmanabhan, J.
1. These cases have been referred to a Full Bench to decide the question whether it is mandatory that a Magistrate, before issuing process to the accused on a complaint disclosing an offence which is exclusively triable by a Court of Session shall call upon the complainant to produce all his witnesses and examine them on oath. A Division Bench of this Court in Sulaiman v. Eachara Warrier 1978 Ker LT 424 took the view that it is not mandatory since the duty to conduct an enquiry under Section 202(1), Criminal P.C. (for short ‘the Code’) itself is only discretionary. The correctness of that view is doubted and hence the question as well as the cases have been referred to the Full Bench.
2. Crl. M.C. 974 of 1984 arose out of a complaint filed by the respondent before the Judicial Second Class Magistrate, Parappanangadi against the three petitioners. The complaint is in protest against a police report in a murder case in which only two of the petitioners were made accused. Cr. M.C. 17 of 1985 is against a private complaint filed by the respondent before the Judicial First Class Magistrate, Payyannur, against the petitioner which was taken to file as C.P. 22 of 1984 for offences punishable under Sections 313 and 493 of the Indian Penal Code.
3. In both cases, the common question for consideration is, whether a Magistrate, who receives a private complaint which discloses an offence exclusively triable by a Court of Session and who records the sworn statement of the complainant as contemplated by Section 200 of the Code should also resort to the enquiry envisaged in Section 202(1) and by virtue of the proviso to Sub-section (2), is he bound to call upon the complainant to produce all his witnesses and examine them on oath. In both cases the learned Magistrates concerned did not think it fit to postpone issue of process against the accused as contemplated in Section 202(1) of the Code, but ordered process under Section 204, evidently on the basis of the opinion that there was sufficient ground for proceeding. According to the petitioners, in dealing with a private complaint disclosing an offence exclusively triable by a Court of Session, Magistrate cannot skip over the stage contemplated in Section 202 but must necessarily adopt the procedure contemplated therein. In Crl. M.C. 17 of 1985 there is a further ground that the complaint does not disclose offences which the Magistrate took cognizance of.
4. Before passing on to the main issue; we shall consider the question which is exclusive to Crl. M.C. 17 of 1985. Section 493, I.P.C., is one of the offences relating to marriage. The section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The section is attracted only when certain other ingredients are also associated therewith. The section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. The essence of the section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage look place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint, in only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493, I.P.C.
5. Section 313, I.P.C. penalises voluntary causing of miscarriage of a woman with child without her consent while miscarriage with consent is dealt with under Section 312. Under Section 313 the person procuring the abortion alone is liable to punishment whereas under Section 312 the woman is also liable for punishment. The only allegation in the complaint on that side is, on hearing that she is pregnant the petitioner took her to a Doctor who caused the abortion. There is no case that it was without her consent. On the other hand the averments show that she willingly submitted herself to abortion and even thereafter she had sexual intercourse with the petitioner. There is nothing to show that abortion was at his instance. Whether he was only accompanying the lady at her request and whether he even made a request to the Doctor to have abortion, are not clear from the allegations. The Doctor who conducted the abortion is not made an accused which means she has no complaint against him. It is clear that an offence under Section 313 is also not made out from the allegations.
6. A Magistrate can take cognizance of an offence on the basis of a complaint only if the allegations in the complaint, taken as a whole, will disclose the offence. A Magistrate can take cognizance of the offence, but not the offender. Without an offence there is possibly no offender. It is true that an offender alone could be proceeded against and brought to justice. But when no offence is disclosed there is no question of proceeding against anybody as an accused. Taking cognizance of an offence is a judicial act to be performed by due application of the judicial mind. In a case where the offence is exclusively triable by the Court of Session the responsibility is still greater because issue of process on the opinion that there is sufficient ground for proceeding means that the Magistrate has no other alternative except to commit the accused for trial. To place an accused for trial before the Court of Session on a complaint which discloses no offence, much less an offence exclusively triable by that Court, will lead to miscarriage of justice. Under Section 209 it must appear to the Magistrate that the offence is triable exclusively by the Court of Session. When such an illegal order passed by a Magistrate is brought to the notice of this Court, it is the duty of this Court to exercise inherent powers to correct the illegality.
7. Now we shall pass on to the main issue. In Sulaiman’s case 1978 Ker LT 424, a Division Bench of this Court held that in cases instituted on complaint the Magistrate can proceed under Section 204 without calling upon the complainant to produce all his witnesses and examining them as required by the proviso appearing below Section 202(2). The correctness of that decision was doubted by Subramonran Poti, J. (as he then was) and reference was made to a Full Bench. But the Full Bench in Bhargavi Amma v. Ravindran Nair MANU/KE/0125/1979 did not decide that question as it was found unnecessary for the disposal of that case. At the same time some observation supporting the views of the Division Bench was expressed. Another Full Bench of this Court in Natesan v. Peethambaran MANU/KE/0110/1983, also made some observations against the view taken by the Division Bench, but there also the question was not decided. It was in the above circumstances that the Division Bench before which these two cases came referred the cases to the Full Bench.
8. On this question there is sharp divergence of judicial opinions between various High Courts in India. No decision of the Supreme Court of India or Full Bench of any High Court directly dealing with this aspect was brought to our notice in this respect. It appears to us that it was as a consolation that the learned Public Prosecutor contended that the position was set at rest by the Honourable Supreme Court in the decision in A. R. Antulay v. R. S. Nayak, MANU/SC/0082/1984 : AIR 1984 SC 718 : (1984 Cri LJ 647). The contention was that the view taken by the Supreme Court in that decision is to the effect that even in cases instituted on complaint for offences exclusively triable by the Court of Session it is within the discretion of the Magistrate to decide whether an enquiry under Section 202(1) is necessary or not and if he decides not to have such an enquiry there is no question of compliance with the proviso under Sub-section (2) of Section 202. But on going through that decision we were not able to find anything which supports that argument.
9. It was a case under the Prevention of Corruption Act before the Special Judge who is competent to take cognizance even on a complaint without the case being committed to him as provided in Section 193. The relevant passage in the decision is this :
“Primarily, examination of witnesses even at a pre-process stage by Special Judge is not on the footing that the case is exclusively triable by a Court of Session as contemplated by Section 202(2), proviso. There is no commitment and therefore Section 202(2), proviso is not attracted.”
10. The contention in that case was that the Special Judge is a Court of Session and the case would be governed by the proviso to Section 202(2), and therefore he has to call upon the complainant to produce all his witnesses and examine them on oath. Rejecting the contention their Lordships held that the Special Judge is a Court of original jurisdiction, just like a Magistrate which can take cognizance in the manner referred to in Section 190 and act under Sections 200, 202, 203 and 204. It was in such a situation that the law was laid down that after complying with the provisions of Section 200 it would be open to the Special Judge to judicially determine whether a case is made out for issuing process without postponing the same and conducting an enquiry under Section 202. That is a discretion which is not exclusive to the Special Judge. The Magistrates also have the same discretion, except in regard to offences exclusively triable by the Court of Session. Regarding such cases the Supreme Court was equating the powers of the Special Judge with those of the Magistrate because no committal is involved and just like the Magistrate the Special Judge also takes cognizance of the offence and proceeds with the case as a Court of original jurisdiction. That decision cannot in any way support the argument that even in a complaint case disclosing offences exclusively triable by the Court of Session the Magistrate is not obliged to conduct an enquiry under Section 202 or comply with the provision of Section 202(2).
11. When a private complaint is filed and cognizance is taken the Magistrate has to examine the complainant on oath and examine witnesses present, if any, under Section 200. If witnesses are not present he need not examine them at that stage, and without proceeding to conduct an enquiry under Section 202(1) it would be open to the Magistrate to judicially determine whether he can issue process. The issue of process would indicate that the Court has decided to proceed further. It is one of the visible manifestations of the satisfaction entered by the Magistrate that there is sufficient ground for proceeding, which satisfaction is sine qua non for issuing process under Section 204. It may not be necessary to record reasons in support of the opinion formed for issuing process. But reasons have to be recorded at least briefly when the complaint is dismissed under Section 203, if the Magistrate is of opinion that there is no sufficient ground for proceeding. The main , consideration at that stage will be (1) whether the allegations constitute any offence, (2) whether the complaint is false or frivolous, and (3) whether the complaint is bad on account of any provision of law such as limitation, requirement of previous sanction, competency of the prosecution, etc. After complying with Section 200 the Court may postpone issue of process to conduct an enquiry under Section 202 to decide whether there is ground for proceeding. The enquiry envisaged is of course only discretionary. This is clear from Section 202(1) itself wherein it is stated that enquiry need be conducted only if the Magistrate thinks fit to do so and postpone the issue of process for that purpose. Even when the Magistrate decides to conduct an enquiry, it is only discretionary to order investigation. He may enquire into the case himself. On these propositions there is no dispute at all. So also there seems to be no dispute that in a complaint case exclusively triable by the Court of Session when once the Magistrate decides to have an enquiry under Section 202 (assuming but not conceding that such an enquiry is only discretionary) he is bound under the proviso to Section 202(2) to call upon the complainant to produce all his witnesses and examine them on oath.
12. For the sake of brevity and convenience we may refer to complaint cases triable by the Magistrates as ‘ordinary complaint cases’, complaint cases triable exclusively by a Court of Session as ‘complaint cases’ and cases instituted on police report as ‘police charge cases’. In ‘ordinary complaint cases’ the discretionary nature of the enquiry under Section 202(1) is clear not only from the provisions of the relevant sections but also from the recommendations contained in the 41st Report of the Law Commission introducing the new provision. In such cases the Law Commission said : —
“The Magistrate must first examine the complainant and, if there are witnesses present, they too must be examined and a record of such examination made. If the Magistrate finds that there is substance in the complaint and he ought to proceed further, he can, of course, summon the accused. The formal power in this respect is contained in Section 204. In case, however, he is not satisfied after hearing the complainant and the few witnesses, the Magistrate can postpone the issue of process against the accused, and for satisfying him, either– (a) enquire into the case himself; (b) send it for enquiry to a subordinate Magistrate, or (c) send it for investigation to a police officer, or (d) send it for investigation to some other person. The enquiry or investigation is, according to Section 202, for the purpose of ‘ascertaining the truth or falsehood of the complainant.”
13. The real question to be decided is whether in ‘complaint cases’ the enquiry under Section 202 is mandatory or only discretionary. A single Judge of this Court in Kochumohammed v. State of Kerala MANU/KE/0138/1977 and a Division Bench in Sulaiman’s case 1978 Ker LT 424 took the view that though an enquiry under Section 202(1) is desirable in a complaint case which involves offences exclusively triable by a Court of Session, it is only discretionary and the obligation to comply with the proviso to Section 202(2) will arise only when the Magistrate exercises his discretion to have such an enquiry. Those decisions were followed by one of us (Padmanabhan, J.) in Sidhan v. State of Kerala MANU/KE/0135/1985. Same view was taken by single Judges of the Madras High Court in M. G. PUlai v. T. Pillai 1983 Cri LJ 917, Patna High Court in Bhagwat Pandey v. State of Bihar MANU/BH/0284/1985 and Delhi High Court in Frank Delton Larkins v. State (Delhi Admn.) 1985 Cri LJ 377 as well as a Division Bench of the Bombay High Court in Re : The Extra’Assistant and Addl. Sessions Judge, Ahmednagar 1984 Cri LJ 801. A Full Bench of this Court in Bhargavi Amma v. Ravindran Nair MANU/KE/0125/1979 made some observations which appear to be in favour of the above view but this question was not decided therein. In Natesan’s case MANU/KE/0110/1983 another Full Bench of this Court struck a different note by making some observations, but there also the question was not decided.
14. The reasons mainly relied on in the above decisions except the last two are (1) the discretion to decide whether there should be an enquiry or not is entirely with the Magistrate, (2) Section 202(2) begins with the words ‘In an inquiry under Sub-section (1)’ and hence the proviso comes into play only when there is an inquiry under Section 202(1); (3) the provision in Section 208(1) regarding furnishing of copies of ‘statements recorded under Section 200 or Section 202’ which is not cumulative but only alternative indicates that inquiry under Section 202 is only discretionary, and (4) the provisions of Section 209 regarding committal is common to both complaints and police reports.
15. The decisions which took the contrary view are Paranjothi Udyar v. State MANU/TN/0375/1975 — (single Bench, Madras High Court), Shyamkant v. State of Maharashtra MANU/MH/0027/1980 — (Division Bench, Bombay High Court), Ramchander Rao v. Boina Ram-chander MANU/AP/0186/1979 – (Division Bench, Andhra High Court), Kamal Krishna v. State MANU/WB/0311/1976 – (Calcutta High Court), Babu Ram v. State of U.P. 1978 Cri LJ 1430 — (Allahabad High Court), Gobinda v. Subala MANU/WB/0555/1978 – (Calcutta High Court, single Bench), Gokulananda Mohanty v. Muralidhara Malik (1979) 47 Cut LT 244 : 1984 Cri LJ 205 (Calcutta High Court, S.B.) and Jadu Behera v. Dhaneswar MANU/OR/0315/1985 – (Orissa, single Bench). These decisions took the view that in a complaint case it is mandatory that the Magistrate should hold an enquiry under Section 202 and in such enquiry he should comply with the proviso to Section 202(2) also. We are in perfect agreement with that view and the reasons given in support. It is true that in an enquiry under Section 202 on the basis of the proviso to Section 202(2) the Magistrate could only examine such of those witnesses as are produced by the complainant because he could only call upon the complainant to produce all his witnesses. Some of these decisions held that any witness not produced and examined by the Magistrate in an enquiry under Section 202 cannot be examined in the Court of Session during trial. There is no need for us to decide that question especially in view of almost plenary powers being given to court under Section 311 to meet any contingency for the just decision of the case irrespective of the question whether a witness has not been examined at the stage of enquiry.
16. There is force in the contention that the different provisions of Section 202 could have been better framed so as to avoid the apparent ambiguity in the section. But even then, a purposeful interpretation, keeping in mind the object and purpose behind the new provision, is warranted. It is settled law that when there is ambiguity in the provisions of the statute, the Courts must lean to an interpretation which is consistent with the object which the legislature has intended. If the wording of the section is capable of an interpretation to fit in with the object and purpose of the legislation, without doing violence to the language, the duty of the Courts is to give effect to the intention of the legislature. A different interpretation will only tend to defeat the purpose of the provision. If such a purposeful interpretation is made the provisions may appear different than when it is looked at without the object and purpose in mind. In this connection it is appropriate to extract the observations of the Supreme Court in a recently reported decision in Reserve Bank of India v. Peerless Co.. MANU/SC/0073/1987 : (1987) 1 SCC 424: (AIR 1987 SC 1023) :
“That interpretation is best which makes the textual interpretation match the con-lexiual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at in the context of its, enactment with the glasses of the statute-maker provided by such context, its scheme the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.”
17. Under the old Code of Criminal Procedure, Magistrates were required to conduct preliminary enquiries in which witnesses to the occurrence at least were to be examined. In a complaint case all witnesses were to be examined (and if so required by the accused they could be cross-examined) in the committal Court itself. Now preliminary enquiry proceedings as in the old Code are dispensed with. As a substitute for that the Law Commission in its 41st Report recommended the new Section 202 with the following objects and purposes at para 16.11 of their recommendations which read-
“We recommend that the Magistrate who lakes cognizance of such offence on complaint must himself make an enquiry 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)”.
18. It was also stated at para 18.29 of the Report) referring to the enquiry under Section 202 in complaint cases) as follows : —
“We propose that in such cases it will be sufficient if the Magistrate taking cognisance of the offence on complaint holds an enquiry 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.”
So also it is stated :
“The combined effect of these two provisions will be to place a person accused of a grave offence by a private complaint in somewhat better position than once charged with a similar offence on the basis of a police investigation. In the former case, preliminary enquiry 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 be sufficient, we consider that the committal proceedings could be dispensed with for complaint cases also”
19. We have earlier extracted the recommendations of the Law Commission regarding the procedures to be adopted/by the Magistrates in ordinary complaint cases. A comparison of the recommendations in the two types of cases will reveal the intention of the legislature abundantly. Section 202 of the new Code is reproduction of the relevant portions of the report of the Law Commission without any change at all. Though the report of the Law Commission is not part of the legislative exercise before the Parliament, it is worthwhile noting that the above provisions and the recommendations were accepted by Parliament without any discussion or amendment as the debates show. Objects and purposes recommended by the Law Commission were also not disturbed to any extent. That means those objects and purposes were also accepted as the basis for the new provisions. If so it is idle to contend that the legislature intended by Section 202 a uniform discretionary enquiry in ordinary complaint cases and complaint cases.
20. It is evident that the legislature intended two different types of enquiries, a discretionary enquiry in ordinary complaint cases and a mandatory enquiry in complaint cases under Section 202. In the discretionary enquiry the Magistrate can either enquire in to the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to Section 202(1). The Magistrate will have to conduct the enquiry himself and he cannot order investigation. It is true that the said discretion is absent in another category of cases coming under proviso(b) to Section 202(1) also. But we are not concerned with such cases here. In a discretionary enquiry in ordinary complaint cases Section 202(2) gives the option to the Magistrate to take evidence of witnesses on oath or not as he thinks fit. That means he can even record a summary of the statements of witnesses. But in a mandatory enquiry in a complaint case that discretion is not there and the proviso to Sub-section (2) says that he shall call upon the complainant to produce all his witnesses and examine them on oath. The scope of the discretionary enquiry under Section 202(1) is left undefined. That means even if the Magistrate decides to have an enquiry he is the mater to decide what all materials are to be collected and at what point the enquiry has to be stopped subject to his satisfaction whether or not there is sufficient ground for proceeding. But in the mandatory enquiry in a complaint case he has no such discretion. The proviso to Section 202(2) makes it compulsory for him to call upon the complainant to produce all his witnesses and examine them on oath. These are points considered with approval in the decisions referred to by us in para 15 above and we are in full agreement with those views. If in a complaint case also the legislature intended the discretion to be with the Magistrate to dispense with the enquiry under Section 202 and proceed to dismiss the complaint under Section 203 or issue process under Section 204 on his satisfaction after compliance of Section 200 alone, it is beyond comprehension why formation of his opinion in complaint cases alone was made dependent upon examination of all witnesses simply because he wanted some more assurance and proceeded to have an enquiry under Section 202 for that purpose. The reason is patent. Unlike in an ordinary complaint case the dismissal of a complaint under Section 203 or issue of process under Section 204 in a complaint case could only be after the mandatory enquiry under Section 202.
21. The scheme of the provisions and the language employed in the proviso show that conducting of enquiry in complaint cases is not left to the discretion of the Magistrate concerned. In a complaint vase, the scope and object of the enquiry are presumably different. Formation of the opinion by the Magistrate that there is or is not sufficient ground for proceeding is not the only purpose of such an enquiry. It must also appear to him that the offence is triable exclusively by the Court of Session and in that consideration he has to bear in mind that the case would go out from his court to be tried by a superior Court, which may not be bound by the opinion formed by him on the basis of available materials that there is sufficient ground for proceeding. The Magistrate has to comply with the provisions of Section 208 by furnishing copies of the documents mentioned in the section. Section 208 gives sufficient indication that the enquiry envisaged in Section 202 is mandatory if the offences disclosed are exclusively triable by Court of Session. The contention that since the word “or” is used in Clause (i) of the section a situation without the enquiry is also covered by the section does not persuade us to take a different stand. “Statements recorded under Section 200 or Section 202” are the words used in Section 208, Clause (i). If the complainant is the sole eye-witness and if he does not produce any other witness even after being called upon by the Magistrate, no witness can possibly be examined by the Magistrate under Section 202. In such cases Magistrate is not able to give copies of statements of witnesses. Hence the word “or” in Section 208 is to be understood as to mean that in cases where the Magistrate was not able to examine witnesses he need supply the copy of statement recorded under Section 200 only. At any rate we are not inclined to hold that the word “or” is employed in Clause (i) of Section 208 only for indicating that the enquiry can be dispensed with by the Magistrate in such cases.
22. The prosecution in the Court of Session is to be opened under Section 226 by the Public Prosecutor describing the charge and stating by what evidence he proposes to prove the guilt of the accused. In a complaint case if process is issued on the opinion that there is sufficient ground for proceeding there is no other option for the Magistrate but to commit the accused to the Court of Session, If process is issued after compliance with Section 200 alone without conducting an enquiry under Section 203, the issue of process and committal may very often be on the basis of the allegations in the complaint and the sworn statement of the complainant alone. The list of witnesses filed by the complainant may not reveal the version which the witnesses are going to say in court. It may also happen that the complainant examined under Section 200 does not have direct knowledge regarding some or many of the aspects of the offence. Under Section 227 the Sessions Judge has to consider the record of the case and documents submitted therewith and he can discharge the accused if he considers that there is no sufficient ground for proceeding. In the contingencies mentioned above, perhaps, the Sessions Judge has no other alternative than to discharge the accused due to total paucity of materials.” It is thus necessary that there must be sufficient materials for the Public Prosecutor to open the case and state by what evidence he proposes to prove the guilt of the accused. Otherwise the complainant will be exposed to the risk of the accused being easily discharged under Section 227 even in a genuine case for want of sufficient materials in the absence of an enquiry under Section 202.
23. The accused also will be at a disadvantage. In a police charge case there is the assurance of investigation by an official agency which may filter the materials. Under Section 207, in such a case the Magistrate, before committal, has to furnish the records mentioned therein to the accused. The object is to facilitate the accused to prepare his defence on the materials by which the prosecution seeks to prove the case against him. In a complaint case, in the absence of investigation, documents mentioned in Section 207 cannot be made available to the accused because there would be no such documents. Section 208 which provides for supply of documents in a complaint case will have to be viewed in this background. The documents to be supplied under Section 208(1) are statements of witnesses recorded under Section 200 or Section 202 of all the persons examined by the Magistrate. In Sulaiman’s case 1978 Ker LT 424 the Division Bench considered Sections 200, 202 and 208(1) and held:
“The provision in Section 208(1) regarding the furnishing of copies of statements is one made not cumulatively but alternatively. It says copies to be furnished should be of statements under Section 200 or Section 202. Use of the word ‘or’ there, is important. It is used there disjunctively and not conjunctively. When so read it produces an intelligible result. It then means that the accused should be furnished with, copies of the statements of persons recorded under Section 200 or Section 202 as the case may be. Section 208(1) does not contemplate an accused being furnished with copies of statements recorded under S, 202 when the commitment is made based on the statements taken under Section 200 alone.”
24. Considering the object and purpose of the amended provision in Section 202, we do not think that interpretation placed by the Division Bench in Sulaiman’s case (1978 KLT 424) is correct. The word “or” cannot be given that restricted meaning, as we have already pointed out. The object of the provisions in Section 202 when taken along with Sections 208 and 209 is to place the accused in a complaint case in the same advantageous position as the accused in a police charge case.
25. In a complaint case the enquiry under Section 202 by the Magistrate into the truth of the complaint is made mandatory and in a way it is intended to take the place of investigation by the police. This safeguard must be to take the place of the preliminary enquiry proceedings provided in the old Code. On the strength of the aforesaid reasonings, we find considerable force in the contention of the counsel for the petitioners that Sub-section (2) together with the proviso must be read as a proviso to Section 202(i). When it is so read, the objects underlying the scheme of Chapter XV can be better served.
26. As a result of the foregoing discussion we are forced to conclude that the legislature contemplated two types of enquiries under Section 202 and in the mandatory enquiry under Section 202 in a complaint case the Magistrate himself will have to conduct the enquiry and he will have to call upon the complainant to produce all his witnesses and examine them on oath.
27. Our conclusion is, which we say with respect, that the decisions in Kochu Mohammed v. State of Kerala MANU/KE/0138/1977, P. Section Sulaiman v. Eachara Warrier 1978 Ker LT 424 and Sidhan v. State of Kerala MANU/KE/0135/1985 have not laid down the law in this respect correctly.
We allow both the petitions and quash the impugned orders in both the cases. In Cri, M.C. 17 of 1985 the entire proceedings are quashed for the additional reason stated by us. In Cri. M.C. 974 of 1984 the complaint is remanded to the Magistrate to proceed according to law.