SHIVJEE SINGHversusNAGENDRA TIWARY AND ORS.

                   [2010) 7 S.C.R. 667


                     SHIVJEE SINGH                             A
                             V.
             NAGENDRA TIWARY AND ORS.
           (Criminal Appeal No. 1158 of 2010)
                       JULY 6, 2010
                                                               B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Code of Criminal Procedure, 1973 - s.202(2), proviso-
Interpretation of - Whether examination of all witnesses cited
in the complaint is sine qua non for taking cognizance by a C
Magistrate in a case exclusively triable by the Court of
Sessions - Held, No - Even though in terms of the proviso
to s.202(2), the Magistrate is required to direct the.
complainant to produce all his witnesses and examine them
on oath, failure or inability of the complainant or omission on D
his part to examine one or some of the witnesses cited in the
complaint or whose names are furnished in compliance of the
direction issued by the Magistrate, will not preclude the latter
 from taking cognizance and issuing process or passing
committal order if he is satisfied that there exists sufficient E
ground for doing so - Examination of all the witnesses cited
 in the complaint or whose names are disclosed by the
complainant in furtherance of the direction given by the
 Magistrate in terms of proviso to s. 202(2) is not a· condition
precedent for taking cognizance and issue of process against F
 the persons named as accused in the complaint -
 Consequence of such non-examination is to be considered
 at the trial and not at the stage of issuing process.

     Words and Phrases - "shall" - Meaning of - In context
to proviso to s.202(2) CrPC.                                   G

    The appellant's son was said to have been killed by
respondent nos.1 to 4. After conducting investigation, the
police submitted final form with the finding that they had
                           667                                 H
    668    SUPREME COURT REPORTS             [2010] 7 S.C.R.

A no clue about the culprits. Thereupon, the appellant filed
  a protest petition, which, at the instance of the Judicial
  Magistrate, was converted into a complaint.

      The appellant examined himself and two out of the
  four witnesses cited in the protest petition-cum-
8
  complaint. After considering the statements of the
  appellant and the said two witnesses, the Judicial
  Magistrate took cognizance against respondent Nos.1 to
  4 for offence under Section 302 read with Section 1208
  IPC and Section 27 of the Arms Act and directed issue
C of non-bailable warrants against them.

       Respondents challenged the order of the Judicial
  Magistrate by filing petition under Section 482 CrPC. The
  High Court held that the Judicial Magistrate could not
D have taken cognizance against the respondents without
  requiring the appellant to examine all the four witnesses
  named by him and remitted the matter to the concerned
  court for passing appropriate order after making further
  inquiry in the light of proviso to Section 202(Z) CrPC.
E
       Before this Court, it was contended by the appellant
  that the proviso to s.20~(2) Cr.P.C. is not mandatory in
  character and the High Court committed serious error by
  remitting the matter to the Judicial Magistrate for further
F enquiry only on the ground that all the witnesses named
  by the appellant had not been examined. The appellant
  contended that non-examination of two witnesses cited
  in the protest petition-cum-complaint did not preclude the
  Judicial Magistrate from taking cognizance against
  respondent nos.1 to 4 since he felt satisfied that a prima
G facie case was made out against them.

        The question which thus arose for consideration in
    the present appeal was whether examination of all
    witnesses cited in the complaint is sine qua non for
H
  SHIVJEE SINGH v. NAGENDRATIWARY AND ORS. 669


 taking cognizance by a Magistrate in a case exclusively    A
 triable by the Court of Sessions.

     Allowing the appeal, the Court

      HELD:1.1. By its very nomenclature, Cr.P.C. is a
 compendium of law relating to criminal procedure. The B
 provisions contained therein are required to be
 interpreted keeping in view the well recognized rule of
 construction that procedural prescriptions are meant for
 doing substantial justice. If violation of the procedural
 provision does not result in denial of fair hearing or C
 causes prejudice to the parties, the same has to be ·
 treated as directory notwithstanding the use of word
 'shall'. (Para 6] [676-D]

    · 1.2. Chapter XIV of CrPC enumerates the conditions o·
  for initiation of proceedings. Chapters XV and XVI
  contain various procedural provisions which are required .
  to be followed by the Magistrate for taking cognizance,
  issuing of process/summons, dismissal of the complaint,
  supply of copies of documents and statements to the E
  accused and commitment of case to the Court of
  Sessions when the offence is triable exclusively by that
· Court. An analysis of Sections 200, 202, 203, 204, 207, 208
· and 209 Cr.P.C. which form part of these Chapters shows
  that when a complaint is presented before a Magistrate,
  he can, after examining the complainant and his F
  witnesses on oath, take cognizance of an offence. This
  procedure is not required to be followed when a written
  complaint is made by a public servant, acting or
  purporting to act in discharge of his official duties or
  when a Court has made the complaint or if the Magistrate G
  makes over the case for inquiry/trial to another Magistrate
  under Section 192. Section 202(1) empowers the ·
  Magistrate to postpone the issue of proces~ against the
  accused and either inquire into the case himself or direct
   an investigation to be made by a police officer or by such H
    670    SUPREME COURT REPORTS              [2010) 7 S.C.R.

A other person which he thinks fit for the purpose of
  deciding whether or not there exists sufficient ground for
  proceeding. By Amending Act No.25 of 2005, the
  postponement of the issue of process has been made
  mandatory where the accused is residing in an area
8 beyond the territorial jurisdiction of the concerned
  Magistrate. Proviso to Section 202(1) lays down that
  direction for investigation shall not be made where it
  appears to the Magistrate that the offence complained of
  is triable exclusively by the Court of Sessions or where
C the complaint has not been made by a Court unless the
  complainant and the witnesses have been examined on
  oath under Section 200. Under Section 202(2), the
  Magistrate making an inquiry under sub-section (1) can
  take evidence of the witnesses on oath. If the Magistrate
  thinks that the offence complained of is triable exclusively
D by the Court of Sessions then in terms of proviso to
  Section 202, he is required to call upon the complainant
  to produce all his witnesses and examine them on oath
  [Paras 6, 7] [676-G-H; 681-G-H; 682-A-C]

E     1.3. The object of examining the complainant and the
  witnesses is to ascertain the truth or falsehood of the
  complaint and determine whether there is a prima facle
  case against the person who, according to the
  complainant has committed an offence. If upon
F examination of the complainant and/or witnesses, the
  Magistrate is prima facie satisfied that a case is made out
  against the person accused of committing an offence
  then he is required to issue process. Section 202
  empowers the Magistrate to postpone the issue of
G process and either inquire into the case himself or direct
  an investigation to be made by a police officer or such
  other person as he may think fit for the purpose of
  deciding whether or not there is sufficient ground for
  proceeding. Under Section 203, the Magistrate can
H
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 671

dismiss the complaint if, after taking into consideration A
the statements of the complainant and his witnesses and
the result of the inquiry/investigation, if any, done under
Section 202, he is of the view that there does not exist
sufficient ground for proceeding. On the other hand,
Section 204 provides for issue of process if the Magistrate B
is satisfied that there is sufficient ground for doing so.
The expression "sufficient ground" used in Sections 203,
204 and 209 means the satisfaction that a prima facie
case is made out against the person accused of
committing an offence and not sufficient ground for the c
purpose of conviction. [Para 8) [683-E-H; 684-A-B]

      1.4. The use of the word 'shall' in proviso to Section
202(2) is prima facie indicative of mandatory character of
the provision contained therein, but a close and critical
analysis thereof along with other provisions contained in D
Chapter XV and Sections 226 and 227 and Section 465
would clearly show that non-examination on oath of any
or some of the witnesses cited by the complainant is, by
itself, not sufficient to denude the concerned Magistrate
of the jurisdic;tion to pass an ~order for taking cognizance E
and issue of process provided he is satisfied that prima
facie case is made out for doing so. Significantly the word
'all' appearing in proviso to Section 202(2) is qualified by
the word 'his'. This implies that the complainant is not
bound to examine all the witnesses named in the F
complaint or whose names are disclosed in response to
the order passed by the Magistrate. In other words, only
those witnesses are required to be examined whom the
complainant considers material to make out a prima facie
case for issue of process. The choice being of the G
complainant, he may choose not to examine other
witnesses. Consequence of such non-examination is to
be considered at the trial and not at the stage of issuing
process when the Magistrate is not required to enter into
                                                             H
    672    SUPREME COURT REPORTS              [2010) 7 S.C.R.

A   detailed discussions on the merits or demerits of the
    case, that is to say whether or not the allegations
    contained in the complaint, if proved, would ultimately
    end in conviction of the accused. He is only to see
    whether there exists sufficient ground for proceeding
B   against the accused. [Para 12] [685-H; 686-A-E]

       1.5. Even though in terms of the proviso to Section
  202(2), the Magistrate is required to direct the
  complainant to produce all his witnesses and examine
C them on oath, failure or inability of the complainant or
  omission on his part to examine one or some of the
  witnesses cited in the complaint or wh.ose names are
  furnished in compliance of the direction issued by the
  Magistrate, will not preclude the latter ,from taking
  cognizance and issuing process or passing committal
D order if he is satisfied that there exists sufficient ground
  for doing so. Such an order passed by the Magistrate
  cannot be nullified only on the ground of non~ompliance
  of proviso to Section 202(2). [Para 14] [692-A-D]

E      1.6. Examination of all the witnesses cited in the
  complaint or whose names are disclosed by the
  complainant in furtherance of the direction ·given,I by the
  Magistrate in terms of proviso to Section 202(2) is not a
  condition precedent for taking cognizance and Issue of
F process against the persons named as accused in the
  complaint. In the present case, the High Court committed
  serious error in directing the Judicial Magistrate to
  conduct further inquiry and pass fresh order in the light
  of proviso to Section 202(2). Since the matter is more than
G 12 years old, the concerned Magistrate is directed to pass
  appropriate order in terms of Section 209. It is further
  directed that after committal of the case, the Sessions _
  Judge, to whom the matter is assigned, shall conduct and
  complete the trial within a period of 9 months. [Paras 16
H and 17] [692-G-H; 693-A-C]
  SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 673


     Birendra K. Singh v. State of Bihar (2000) 8 SCC 498,       A
 held inapplicable.

     Rosy v. State of Kera/a (2000) 2 SCC 230, explained

      R.C. Ruia v. State of Bombay 1958 SCR 618; Vadi/a/
  Panchal v. Duftatraya Dulaji Ghadigaonkar (1961) 1 SCR 1; 8
  Chandra Deo Singh v. Prokash Chandra Bose (1964) 1 SCR
  639; Nirmaljit Singh Hoon v. State of West Bengal (1973) 3
. SCC 753; Kewal Krishan v. Suraj Bhan (1980) Supp SCC ·
  4$9; Mohinder Singh v. Gu/want Singh (1992) 2 SCC 213
  and Chief Enforcement Officer v. Videocon International Ltd. C
  (2008) 2 sec 492, relied on.
                                                 I
        Ranjit Singh v. State of Pepsu AIR 1959 SC 843;
   Moideenkutty Haji v. Kunhikoya (1987) 1 KLT 635; M.
   Govindaraja Pillai v. Thangavelu Pillai 1983 Cri LJ 917 and   o
I Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC 500,
 · referred to. .

                      Case Law Reference:
      (2000) 2 sec 230         explained             Para 5      E
      (2000) 8 sec 498         held inapplicable     Para 5
      1958 SCR 618             relied on             Para 8
      (1961) 1 SCR 1           relied on             Para 8
                                                                 F
      (1964) 1 SCR 639         relied on             Para 8
      (1973) 3 sec 753         relied on             Para 8
      (1980) Supp sec 499 relied on                  Para 8
                                                                 G
      (1992) 2 sec 213         relied on             Para 8
      (2008) 2 sec 492         relied on             Para 8
    · AIR 1959 SC 843          referred to           Para 13
                                                                 H
    674       SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A         (1987) 1 KLT 635         referred to            Para 13
          1983 Cri LJ 917          referred to            Para 13
          (2000) 8 sec 500         referred to            Para 15

B       CRIMINAL APPELLATE JURISDICTION ; Criminal Appeal
    No. 1158 of 2010.

        From the Judgment & Order dated 18.4.2007 of the High
    Court of Judicature at Patna in Crl. Misc. No. 1778 of 2007.

C         Gaurav Agrawal for the Appellant.

        Gopal Singh, Akhilesh Kumar Pandey, Sudarsh Saran,
    Shalini Chandra, Swati Chandra for the ResponderitSi.

          The Judgment of the Court was delivered by
D
          G.S. SINGHVI, J. 1. Leave granted.

        2. Whether examination of all witnesses cited in the
  complaint is sine qua non for taking cognizance by a
  Magistrate in a case exclusively triable by the Court of Sessions
E is the question which arises for consideration in this appeal filed
  against order dated 18.4.2007 passed by the learned Single
  :Judge of Patna High Court in Criminal Miscellaneous Petition
  No.1778 of 2007 whereby he remitted the case to Chief Judicial
  Magistrate, Saran with the direction to make further inquiry and
F pass appropriate order in the light of proviso to Section 202(2)
  of the Code of Criminal Procedure (Cr.P.C.).

       3. The appellant's son, Ajay Kumar Singh is said to have
  been killed by respondent Nos.1 to 4 on 1/2.1.1997. The
G appellant lodged First Information Report on the same day at
  Police Station, lsuapur. After conducting investigation, the police
  submitted final form on 3.9.1998 with the finding that they had
  no clue about the culprits. Thereupon, the appellant filed a
  protest petition accusing the police of not conducting the
H investigation properly due to political pressure and prayed that
  SHIVJEE SINGH v. NAGEr:.IDRA TIWARY AND ORS. 675
                [G.S. SINGHVI, J.]
thf? accused persons be summoned and punished. By an order A
gated 3.9.2802, t~e learned Judicial Magistrate accepted the
final form §ubmitted by the police but, at the same time, directed
that the prot@§t petiti~ll !:>@ rt;i~ist~red as a separate complaint.
He also c:llreeted t~e gprnpla.inant (appell;:iflt h@rein) to produce
his witnesses. The app~ll~nt eX9rnin!?d himself and two out of B
four witnesses cited in the i:in~test petition-cµrn"§Qmg!aint ·but
gave up the remaining two witnesses because he thought that .
they had been won over by the accused. After considering.the
 statements of the appellant and two witnesses, Chief Judicial
 Magistrate, Saran passed an ·order dated 13.12.2006 whereby       c
 h~ tE>E>~ gogriizance against respondent Nos.1 .to 4 for offence
 Yflder ~~i::;tlq11 902 reaq with Section 1208 Indian Penal Code
 and ~~cti9n ~7 gf the Arms Act and directed issue of non
 bailable w;;irrants a~J<~inst them.

       4. The respgnc:!ents Ghcillen~~d tne qrder of the Chief D
  Judicial Magistrate by filing ~ p,E!tition unqer Section 482
  Cr.P.C. The learned Single Judge aGcepteq their contention
. that the Chief Judicial Magistrate could not have taken
  cognizance against them without requiring the appellant to
  examine all the witnesses and remitted the matter to the E
  concerned court for passing appropriate order after making
  fYrther inquiry in the light of proviso to Section 202(2) Cr.P.C.

      !), ~hri gqyrnv Agrawal, learned counsel for the appellant
 argued that prgyj§g tg §ection 202(2) Cr.P.C. is not mandatory F
 in character and the High Court committed serious error by
 remitting the matter to the Chief Judicial Magistrate for further
 inquiry only on the ground that all the witnesses named by the •
 appellant had not been examined. Learned counsel further
 argued that non-examination of two witnesses cited in the G
 protest petition-cum-complaint did not preclude the Chief
 Judicial Magistrate from taking Gognizance against respondent
 Nos.1 to 4 because he felt satisfied that a prima facie case was
 made out against them. In support of his arguments, learned
 counsel relied upon the judgment of this Court in Rosy v. State H
    676      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A   of Kera/a (2000) 2 SCC 230. Shri Gopal Singh, learned
    counsel for the respondents argued that proviso to Section
    202(2) Cr.P._C. is mandatory and the Chief Judicial Magistrate
    committed a serious error in taking cognizance against
    respondent Nos.1 to 4 and issuing non-bailable warrants
B   against them without insisting on the examination of remaining
    two witnesses named in the complaint. He relied upon the
    observations made by Thomas, J. in Rosy v. State of Kera/a
    (supra) and the judgment in Birendra K. Singh v. State of Bihar
    (2000) 8 sec   498 in support of his submission that proviso to
c   S(~ction 202(2) Cr.P.C. is mandatory.

         6. We have considered the respective submissions. By its
    very nomenclature, Cr.P.C. is a compendium of law relating to
    criminal procedure. The provisions contained therein are
    required to be interpreted keeping in view the well recognized
D   rule of construction that procedural prescriptions are meant for
    doing substantial justice. If violation of the procedural provision
    does not result in denial of fair hearing or causes prejudice to
    the parties, the same has to be treated as directory
    notwithstanding the use of word 'shall'. Chapter XIV of Cr.P .C.
E   enumerates conditions for initiation of proceedings. Under
    Section 190, which forms part of the scheme of that chapter, a
    Magistrate can take cognizance of any offence either pn
    receiving a complaint of facts which constitute an offence or a
    police report of such facts or upon receipt of information from
F   any person other than a police officer or upon his own
    knowledge, that such an offence has been committed. Chapters
    XV and XVI contain various procedural provisions which are
    required to be followed by the Magistrate for taking cognizance,
    issuing of process/summons, dismissal of the complaint,
G   sypply of copies of documents and statements to the accused
    and commitment of case to the Court of Sessions when the
    offence is triable exclusively by that Court. Sections 200, 202,
    203, 204, 207, 208 and 209 Cr.P.C. which form part of these
    chapters and which have bearing on the question raised in this
H   appeal read as under:
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 677
              [G.S. SINGHVI, J.]
  "200. Examination of complainant.- A Magistrate taking           A
  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:                           B

    -- -Br.mtLded 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   C
          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:           D
       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.
                                                                   E
  202. Postponement of issue of process.-(1) Any
  Magistrate, on receipt of a complaint of an offence df
  which he is authorised to take cognizance or which has
  been made over to him under section 192, may, if he thinks
  fit, and shall, in a case where the accused is residing at a     F
  place beyon'"' the area in which he exercises his
  jurisdiction 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       G
  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      H
    678          SUPREME COURT REPORTS                 !2010] 7 S.C.R.

A                 coltlplalned of Is triable exclusively by the Court of
                  Sessiohsi ot

           {b)    where tHe comptaitit has not been made by a
                  Court, unless the complainant and the Witnesses
B                 present (if any) have been examined on oath-under
                  section 200.

               (2) In an inquiry under sub-section (1), the Magistrate
          may, if he thinks fit, take evidence of witness on oath:

c                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
D         by a person not being a police officer, he shall have for
          that investigation all the powers conferred by this Code on
          an officer in charge of a police station except the power
          to arrest without warrant.

E     203. Dismissal of complaint.- If, after considering the
      statements on oath (if any) of the complainant and of the
      witnesses and the result of the inquiry or investigation (if
      any) under Section 202, the Magistrate is of opinion that
      there is no sufficient ground for proceeding, he shall
F     dismiss the complaint, and in every such case he shall
      record his reasons for so doing.

      204. Issue of process.- (1) If in the opinion of a Magistrate
      taking cognizance of an offence there is sufficient ground
      for proceeding, and the case appears to be-
G
      (a) a summons-case, he shall issue his summons for the
      attendance of the accused, or
      (b) a warrant-case, he may issue a warrant, or, if he thinks
H     fit, a summons, for causing the accused to be brought or
SHIVJEE SINGH v. NAGENDRA TiWARY AND ORS. 679
                  [G.S. SINGHVI, J,J
  to appear at a certain time before such Magistrate or (if        A
  he has no jurisdictiotl hitnselO some other Magistrates
  having jurisdiction.

  (2) No surnmons ot warrant shall be issued against the
  accused under sub-section (1) until a list of the prosecution
                                                                   B
  witnesses has been filed.

    (3) In a proceeding instituted upon a complaint made in
    writing, every summons or warrant issued under sub-
  . section (1) shall be accompanied by a copy of such
    complaint.                                                     c
   (4) When by any law for the time being in force any
   process-fees or other fees are payable, no process shall
  ,be issued until the fees are paid and, if such fees are not
   paid within a reasonable time, the Magistrate may dismiss       D
   the complaint.

   (5) Nothing in this section shall be deemed to affect the
   provisions of section 87.

   207. Supply to the accused of copy of police report and         E
   other documents. - In any case where the proceeding has
   been. instituted on a police report, the Magistrate shall
   without delay furnish to. the accused, free of cost, a copy
   of each of the following:-
                                                                   F
   (i) the police report;

   (ii) the first information report recorded under section 154;

   (iii) the statements recorded under sub-section (3) of
   section 161 of all persons whom the prosecution proposes G
   to examine as its witnesses, excluding there from any part
   in regard to which a request for such exclusion has been
   made by the police officer under sub-section (6) of section ·
   173;
                                                                   H
    680      SUPREME COURT REPORTS                   (2010] 7 S.C.R.


A         (iv) the confessions and statements, if any, recorded under
          section 164;

          (v) any other document or relevant extract thereof
          forwarded to the Magistrate with the police report under
          sub-section (5) of section 173:
B
          Provided that the Magistrate may, after perusing any such
          part of a statement as is referred to in clause (iii) and
          considering the reasons given by the police officer for the
          request, direct that a copy of that part of the statement or
c         of such portion thereof as the Magistrate thinks proper,
          shall be furnished to the accused:

          Provided further that if the Magistrate is satisfied that any
          document referred to in clause (v) is voluminous, he shall.
D         instead of furnishing the accused with a copy thereof, direct
          that he will only be allowed to inspect it either personally
          or through pleader in Court.

          208. Supply of copies of statements and documents to
          accused in other cases triable by Court of Session.-
E         Where, in a case instituted otherwise than on a police
          report, it appears to the Magistrate issuing process under
          section 204 that the offence is triable exclusively by the
          Court of Session, the Magistrate shall without delay furnish
          to the accused, free of cost, a copy of each of the
F         following:-
          (i) the statements recorded under section 200 or section
          202, or all persons examined by the Magistrate;

          (ii) the statements and confessions, if any, recorded under
G         section 161 or section 164;
          (iii) any documents produced before the Magistrate on
          which the prosecution proposes to rely:

          Provided that if the Magistrate is satisfied that any such
H
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 681
              [G.S. SINGHVI, J.]
    document is voluminous, he shall, instead of furnishing the      A
    accused with a copy thereof, direct that he will only be
    allowed to inspect it either personally or through pleader
    in Court.

    209. Commitment of case to Court of Session when                 8
    offence is triable exclusively by it.-When in a case
    instituted on a police report or otherWise, the accused
    appears or is brought before the Magistrate and it appears
    to the Magistrate that the offence is triable exclusively by
    the Court of Session, he shall-
                                                                     c
     (a)    commit, after complying with the provisions of
            section 207 or section 208, as the case may be,
            the case to the Court of Session, and subject to the
            provisions of this Code relating to bail, remand the
            accused to custody until such commitment has             D
            been made;

      (b)   subject to the provisions of this Code relating to
            bail, remand the accused to custody during, and
            until the conclusion of, the trial;
                                                                     E
      (c)     send to that Court the record of the case and the
              documents and articles, if any, which are, to b~
            . produced in evidence;

      (d) . notify the Public Prosecutor of the commitment of        F
            the case to the Court of Session."

     7. An analysis of the above reproduced provisions shows
that when a complaint is presented before a Magistrate, he can,
after examining the complainant and his witnesses on oath, take
cognizance of an offence. This procedure is not required to be       G
followed when a written complaint is made by a public servant,
acting or purporting to act in discharge of his official duties or
when a Court has made the complaint or if the Magistrate
makes over the case for inquiry/trial to another Magistrate under
Section 192. Section 202(1) empowers the Magistrate to               H
    682      SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A   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 which he
    thinks fit for the purpose of deciding whether or not there exists
    sufficient ground for proceeding. By Amending Act No.25 of
B   2005, the postponement of the issue of process has been
    made mandatory where the accused is residing in an area
    beyond the territorial jurisdictiori of the concerned Magistrate.
    Proviso to Section 202(1) lays down that direction for
    investigation shall not be made where it appears to the
c   Magistrate that the offence complained of is triable exclusively
    by the Court of Sessions or where the complaint has not been
    made by a Court unless the complainant and the witnesses
    have been examined on oath under Section 200. Under Section
    202(2), the Magistrate making an inquiry under sub-section (1)
    can take evidence of the witnesses on oath. If the Magistrate
0
    thinks that the offence complained of is triable exclusively by
    the Court of Sessions then in terms of proviso to Section 202,
    he is required to call upon the complainant to produce all his
    witnesses and examine them on oath. Section 203 empowers
E   the Magistrate to dismiss the complaint if, after considering the
    statements made by the complainant and the witnesses on oath
    and the result of the inquiry or investigation, if any, made under
    Section 202(1 ), he is satisfied that there is no sufficient ground
    for proceeding. The exercise of this power is hedged with the
    condition that the Magistrate should record brief reasons for
F   dismissing the complaint. Section 204, which talks of issue of
    process lays down that if the Magistrate taking cognizance of
    an offence is of the view that there is sufficient ground for
    proceeding then he may issue summons for attendance of the
    accused in a summons-case. If it is a warrant-case, then the
G   Magistrate can issue warrant for causing attendance of
    accused. Section 207 casts a duty on the Magistrate to supply
    to the accused, copies of the police report, the first information
    report recorded under Section 154, the statements recorded
    under Section 161 (3), the confessions and statements, if any,
H   recorded under Section 164 and any other document or
  SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 683
                [G.S. SINGHVI, J.]
 relevant extract thereof, which is forwarded to the Magistrate A
 along with polic~ report. Section 208 provides for supply of
 copies of statement and documents to accused in the cases
 triable by the Court of Sessions. It lays down that if the case,
 instituted otherwise t~an on a police report, is triable exclusively
 by the Court of Sessions, the Magistrate shall furnish to the B
 accused, free of cost, copies of the statements recorded under
 Section 200 or Section 202, statements and confessions
 recorded under Section 161 or Section 164 and any other
 document on which prosecution proposes to rely. Section 209
 speaks of commitment of case to the Court of Sessions when c
  offence is triable exclusively by it. This section casts a duty on
 the Magistrate to commit the case to the Court of Sessions after
  complying with the provisions of Section 208. Once the case
  is committed, the trial is to be conducted by the Court of
  Sessions in accordance with the provisions contained in
                                                                      0
  Chapter XVIII.

       8. The object of examining the complainant and the
  witnesses is to ascertain the truth or falsehood of the complaint
. and determine whether there is a prima facie case against the
= person who, according to the complainant has committed an             E
  offence. If upon examination of the complainant and/or
  witnesses, the Magistrate is prima facie satisfied that a case
  is made out against the person accused of committing an
  offence then he is required to issue process. Section 202
  empowers the Magistrate to postpone the issue of process and          F
  either inquire into the case himself or direct an investigation to
  be made by a police officer or such other person as he may
  think fit for the purpose of deciding whether or not there is
  sufficient ground for proceeding. Under Section 203, the
  Magistrate can dismiss the complaint if, after taking into            G
  consideration the statements of the complainant and his
  witnesses and the result of the inquiry/investigation, if any, done
  under Section 202, he is of the view that there does not exist
  sufficient ground for proceeding. On the other hand, Section
   204 provides for issue of process if the Magistrate is satisfied     H
    684      SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A that there is sufficient ground for doing so. The expression
  "sufficient ground" used in Sections 203, 204 and 209 means
  the satisfaction that a prima facie case is made out against the
  person accused of committing an offence and not sufficient
  ground for the purpose of conviction. This interpretation of the
B provisions contained in Chapters XV and XVI of Cr.P.C. finds
  adequate support from the judgments of this Court in R. C. Ruia
  v. State of Bombay, 1958 SCR 618, Vadilal Panchal v.
  Duttatraya Dulaji Ghadigaonkar (1961) 1 SCR 1, Chandra
  Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639,
c Nirmaifit Singh Hoon v. State of West Bengal (1973) 3 SCC
  753, Kewal Krishan v. Sura} Bhan (1980) Supp SCC 499,
  Mohinder Singh v. Gu/want Singh (1992) 2 SCC 213 and
  Chief Enforcement Officer v. Videocon International Ltd.
  (2008) 2 sec 492.

D      9. In Chandra Deo Singh v. Prakash Chandra Bose
  (supra), it was held that where there was prima facie evidence,
  the Magistrate was bound to issue process and even though
  the person charged of an offence in the complaint might have
  a defence, the matter has to be left to be decided by an
E appropriate forum at an appropriate stage. It was further held
  that the issue of process can be refused only when the
  Magistrate finds that the evidence led by the complainant is self
  contradictory or intrinsically untrustworthy.

F       10. In Kewal Krishan v. Sura} Bhan (supra}, this Court
    examined the scheme of Sections 200 to 204 and held:

          "At the stage of Sections 203 and 204 of the Criminal
          Procedure Code in a case exclusively triable by the Court
          of Sessions, all that the Magistrate has to do is to see
G         whether on a cursory perusal of the complaint and the
          evidence recorded during the preliminary inquiry under
          Sections 200 and 202 of the Criminal Procedure Code,
          there is prima facie evidence in support of the charge
          leveled against the accused. All that he has to see is
H         whether or not there is "sufficient ground for proceeding"
 SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 685
               [G.S. SINGHVI, J.]
    against the accused. At this stage, the Magistrate is not        A
    to weigh the evidence meticulously as if he w~re the trial
    court. The standard to be adopted by the Magistrate in
    scrutinizing the evidence is not the same as the one which
    is to be kept in view at the stage of framing charges."
                                                                     B
    11. The aforesaid view was reiterated in Mohinder Singh
v. Gu/want Singh (supra) in the following words:

    "The scope of enquiry under Section 202 is extremely
    restricted only to finding out the truth or otherwise of the
    allegations made in the complaint in order to determine C
    whether process should issue or not under Section 204 of
    the Code or whether the complaint should be dismissed
    by resorting to Section 203 of the Code on the footing that
    there is no sufficient ground for proceeding on the basis
    of the statements of the complainant and of his witnesses, D
    if any. But the enquiry at that stage does not partake the
    character of a full dress trial which can only take place after
    process is issued under Section 204 of the Code calling
    upon the proposed accused to answer the accusation
    made against him for adjudging the guilt or otherwise of E
    the said accused person. Further, the question whether the
    evidence is adequate for supporting the conviction can
    be determined only at the trial and not at the stage of the
    enquiry contemplated under Section 202 of the Code. To
    say in other words, during the course of the enquiry under F
    Section 202 of the Code, the enquiry officer has to satisfy
    himself simply on the evidence adduced by the
    prosecution whether prima facie case has been made out
    so as to put the proposed accused on a regular trial and
    that no detailed enquiry is called for during the course of G
    such enquiry."

                                            (emphasis supplied)

      12. The use of the word 'shall' in proviso to Section 202(2)
is prima facie indicative of mandatory character of the provision    H
    686      SUPREME COURT REPORTS                 [2010] 7 S.C.R.


A   contained therein, but a close and critical analysis thereof along
    with other provisions contained in Chapter XV and Sections
    226 and 227 and Section 465 would clearly show that non
    examination on oath of any or some of the witnesses cited by
    the complainant is, by itself, not sufficient to denude the
B   concerned Magistrate of the· jurisdiction to pass an order for
    taking cognizance and issue of process provided he is satisfied
    that prima facie case is made out for doing so. Here it is
    significant to note that the word 'all' appearing in proviso to
    Section 202(2) is qualified by the word 'his'. This implies that
C   the complainant is not bound to examine all the witnesses
    named in the complaint or whose names are disclosed in
    response to the order passed by the Magistrate. In other words,
    only those witnesses are required to be examined whom the
    complainant considers material to make out a prima facie case
    for issue of process. The choice being of the complainant, he
0
    may choose not to examine other witnesses. Consequence of
    such non-examination is to be considered at the trial and not
    at the stage of issuing process when the Magistrate is not
    required to enter into detailed discussions on the merits or ,
    demerits of the case, that is to say whether or not the
E   allegations contained in the complaint, if proved, would
    ultimately end in conviction of the accused. He is only to see
    whether there exists sufficient ground for proceeding against
    the accused.

F       13. We may now refer to the judgment in Rosy v. State of
    Kera/a (supra) on which reliance has been placed by both the
  learned counsel. The factual matrix of that case reveals that the
  Excise Inspector filed a complaint before Judicial Magistrate,
  Thrissur for offences punishable under Section 57-A and 56(b)
G of the Kerala Abkari Act. As the offences were exclusively
  triable by the Court of Sessions, the learned Magistrate
  committed the case to the Court of Sessions, Thrissur. After
  the prosecution examined witnesses, the accused were
  questioned under Section 313 Cr.P.C. The public prosecutor
H then filed an application for recalling two witnesses, who were
 SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 687
               [G.S. SINGHVI, J.]
recalled and examined. Thereafter, further statements of the A
accused under Section 313 were recorded. The accused
examined four witnesses. At that stage, an argument was
raised that the committal order was bad because the
Magistrate did not follow the procedure prescribed in the
proviso to Section 202(2). The learned Sessions Judge opined B
that there was.breach of the mandatory provision but made a
reference to the High Court under Section 395(2) because he
found it difficult to decide the course to be adopted in the matter.
The High Court held that the order of committal was vitiated due
to violation of the mandate of proviso to Section 202(2). Before . c
this Court, the issue was considered by a two-Judge Bench.
M.B. Shah, J., referred to Sections 200 and 202, the judgment
of this Court in Ranjit Singh v. State of Pepsu AIR 1959 SC
843 and held:

    "Further, it is settled law that the inquiry under Section 202    D
    is of a limited nature. Firstly, to find out whether there is a
    prima facie case in issuing process against the person
    accused of the offence in the complaint and secondly, to
    prevent the issue of process in the complaint which is
    either false or vexatious or intended only to harass such a       E
    person. At that stage, the evidence is not to be
    meticulously appreciated, as the limited purpose being of
    finding out "whether or not there is sufficient ground for
    proceeding against the accused". The standard to be
    adopted by the Magistrate in scrutinising the evidence is         F
    also not the same as the one which is to be kept in view
    at the stage of framing charges. At the stage of inquiry
    under Section 202 CrPC the accused has no right to
    intervene and that it is the duty of the Magistrate while
                                                           a
    making an inquiry to elicit all facts not merely with view        G
    to protect the interests of an absent accused person, but
    also with a view to bring to book a person or persons
    against whom grave allegations are made."

                                                                      H
    688       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A        Shah, J. then referred to the ratio of the judgment in Kewal
    Krishan v. Suraj Bhan (supra) and observed:

          "In this view of the matter it is apparent that the High Court
          erred in holding that there was breach of the mandatory
          provisions of the proviso to Section 202(2) of the Code
B
          and the order of committal is vitiated and, therefore,
          requires to be set aside. The High Court failed to consider
          th~ proviso to Section 200, particularly proviso (a) to the
          said section and also the fact that inquiry under Section
          202 is discretionary for deciding whether to issue process
c         (under Section 204) or to dismiss the complaint (under
          Section 203). Under Section 200, on receipt of the
          complaint, the Magistrate can take cognizance and issue
          process to the accused. If the case is exclusively triable
          by the Sessions Court, he is required to commit the case
D         to the Court of Session."

           Shah, J. also referred to the judgment of the Full Bench of
    Kerala High Court in Moideenkutty Haji v. Kunhikoya (1987)
    1 KLT 635 and of Madras High Court in M. Govindaraja Pillai
E   v. Thangavelu Pillai 1983 Cri LJ 917, approved the ratio of
    the latter decision that Section 202 is an enabling provision and
    it is the discretion of the Magistrate depending upon the facts
    of each case, whether to issue process straightaway or to hold
    the inquiry and held:
F         "We agree with the conclusion of the Madras High Court
          to the effect (sic extent) that Section 202 is an enabling
          provision and it is the discretion of the Magistrate
          depending upon the facts of each case, whether to issue
          process straight away or to hold the inquiry. However, in
G         case where inquiry is held, failure to comply with the
          statutory direction to examine all the witnesses would not
          vitiate further proceeding in all cases for the reasons that

          (a) in a complaint filed by a public servant acting or
H
SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 689
              [G.S. SINGHVI, J.]
   purporting to act in discharge of his official duties, the         A
   question of holding inquiry may not arise,

   (b) whether to hold inquiry or not is the discretionary
   jurisdicticm of the Magistrate,

    (c) even if he has decided to hold an inquiry it is his further   8
    discretion to examine the witnesses on oath. If he decides
    to examine witnesses on oath in a case triable exclusively
    by the Court of Session, he shall call upon the complainant
    to produce all his witnesses and examine tliem on oath,
                                                                      c
    (d) it would also depend upon the fa~ts of each case
    depending upon the prejudice caused to the accused by
    non-compliance with the said proviso (Section 465), and
                          \

    (e) that the objection witti regard to non-compliance with
                                                                      0
    the proviso should be taken at the earlier stage when the
  , charge is framed by the Sessions Court."

                                            (emphasis supplied)

     K.T. Thomas, J. adopted a different approach regarding           E
interpretation of Section 202. He referred to the scheme of
Chapters XIV, XV and XVI Cr.P.C. and observed:

    "Three categories of documents are mentioned in the
    aforesaid section the copies of which the Magistrate, who
    proceeds from the stage in Section 204, has to supply to          F
    the accused free of cost (in a complaint case involving an
    offence triable exclusively by a Court of Session). As the
    words used here are "shall furnish", it is almost a
    compelling duty on the Magistrate to supply the said
    documents to the accused. How can the Magistrate supply           G
    such documents? [In t·he present context the documents
    referred to in the third category mentioned in clause (iit)
    are not important.] The first category delineated in clause
    (1) of Section 208 consists of "statements recorded under
    Section 200 or Section 202, of all persons examined by            H
    690       SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A         the Magistrate". (emphasis supplied) It is now important
          to note that the words "if any" have been used in the
          second category of documents which is delineated in
          clause (i1) of Section 208, but those words a~ absent
          while delineating the first category. In my view those two
B         words have been thoughtfully avoided by Parliament in
          clause (1).

          If a Magistrate is to comply with the aforesaid requirements
          in Section 208 of the Code (which he cannot obviate if the
          language used in the sub-section is of any indication) what
c         is the manner in which he can do it in a case where he
          failed to examine the witnesses before issuing process to
          the accused? The mere fact that the word "or" is employed
          in clause (1) of Section 208 is not to be understood as an
          indication that the Magistrate is given the freedom to
D         dispense with the inquiry if he has already examined the
          complainant under Section 200. A case can be visualised
          in which the complainant is the only eyewitness or in which
          all the eyewitnesses were also present when the complaint
          was filed and they were all examined as required in Section
E         200. In such a case the complainant, when asked to
          produce all his witnesses under Section 202 of the Code,
          is at liberty to report to the Magistrate that he has no other
          witness than those who were already examined under
          Section 200 of the Code. When such types of cases are
F         borne in mind it is quite possible to grasp the utility of the
          word "or" which is employed in the first clause of Section
          208 of the Code. So the intention is not to indicate that
          the inquiry is only optional in the cases mentioned in
          Section 208.
G
          If a case instituted on a complaint is committed to the Court
          of Session without complying with the requirements in
          clause (1) of Section 208 of the Code how is it possible
          for the Public Prosecutor to know in advance what
          evidence he can adduce to prove the guilt of the accused?
H         If no inquiry under Section 202 is to be conducted a
    SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 691
                  [G.S. SINGHVI, J.]
        Magistrate who decides to proceed only on the averments        A
        contained in the complaint filed by a public servant (who
        is not a witness to the core allegation) and such a case is
        committed to the Court of Session, its inevitable
        consequence would be that the Sessions Judge has to axe
        down the case at the stage of Section 226 itself as the        B
        Public Prosecutor would then be helpless to state "by what
        evidence he proposes to prove the guilt of the accused".
        If the offence is of a serious nature or is of public
        importance the consequence then would be a miscarriage
        of justice."
                                                                       c
         Thomas, J. then referred to the recommendations made
    by the Law Commission in its 41st Report and held:

I       ''Thus I have no doubt that the proviso incorporated in sub-
        section (2) of .Section 202 of the Code is not merely to       o
        confer a discretion on the Magistrate, but a compelling duty
        on himJo perform in such cases. I wish to add that the
        Magist~e\in such a situation is not obliged to exami(1e
         witnesse~vyho could not be produced by the complainant
        when asked to produce such witnesses. Of course if the         E
        complainant requires the help of the court to summon such
        witnesses it is open to the Magistrate to issue such
         summons, for, there is nothing in the Code which prevents
         the Magistrate from issuing such summons to the
        witnesses.
                                                                       F
        I reiterate that if the Magistrate omits to comply with the
        above requirement that would not, by itself, vitiate the
        proceedings. If no objection is taken at the earlier stage
        regarding such omission the court can consider how far
        such omission would have led to a miscarriage of justice,      G
        when such objection is taken at a later stage. A decision
        on such belated objection can be taken by bearing in mind
        the principles adumbrated in Section 465 of the Code."

                                              (emphasis supplied)      H
    692     SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A       14. Although, Shah, J. and Thomas, J. appear to have
  expressed divergent views on the interpretation of proviso to
  Section 202(2) but there is no discord between them that non
  examination of all the witnesses by the complainant would not
  vitiate the proceedings. With a view to clarify legal position on
B the subject, we deem it proper to observe that even though in
  terms of the proviso to Section 202(2). the Magistrate is
  required to direct the complainant to produce all his witnesses
  and examine them on oath, failure or inability of the complainant
  or omission on his part to examine one or some of the
C witnesses cited in the complaint or whose names are furnished
  in compliance of the direction issued by the Magistrate, will not
  preclude the latter fro[ll taking cognizance and issuing process
  or passing committal order if he is satisfied that there exists
  sufficient ground for doing so. Such an order passed by the
  Ma~iistrate cannot be nullified only on the ground of non-
D compliance of proviso to Section 202(2).

       15. In Birendra K. Singh v. State of Bihar (supra), the only
  question considered by this Court was whether non-compliance
  of Section 197 Cr.P.C. was fatal to the prosecution. While
E holding that an objection regarding non-compliance of Section
  197 can be raised only after the case is committed to the Court
  of Sessions, this Court observed that it was not made aware
  of the fact whether process was issued after complying with the
  provisions of Section 202. Therefore, that judgment cannot be
F read as laying down a proposition of law on interpretation of
  proviso to Section 202(2). That apart, it is important to mention
  that in Abdul Wahab Ansari v. State of Bihar (2000) 8 SCC
  500, a three-Judge Bench held that the decision in Birendra
  K. Singh's case does not lay down the correct law.
G        16. As a sequel to the above discussions, we hold that
    examination of all the witnesses cited in the complaint or whose
    names are disclosed by the complainant in furtherance of the
    direction given by the Magistrate in terms of proviso to Section
    202(2) is not a condition precedent for taking cognizance and
H
 SHIVJEE SINGH v. NAGENDRA TIWARY AND ORS. 693
               [G.S. SINGHVI, J.]
issue of process against the persons named as accused in the         A
complaint and the High Court committed serious error in
directing the Chief Judicial Magistrate to conduct further inquiry
and pass fresh order in the light of proviso to Section 202(2).

     17. In the result, the appeal is allowed and the impugned       B
order is set aside. Since the matter is more than 12 years old,
we direct the concerned Magistrate to pass appropriate order
in terms of Section 209 within one month from the date of
receipUproduction of copy of this order. We further direct that
after committal of the case, the Sessions Judge to whom the
matter is assigned shall conduct and complete the trial within       C
a period of 9 months. A copy of this order be forwarded to the
Registrar General, Patna High Court, who shall place the same
before Hon'ble the Chief Justice of that High Court.

B.B.B.                                          Appeal allowed.