SHIVJEE SINGH v. NAGENDRA TIWARY & Ors.

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] C

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 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] I 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, 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.