ROSY AND ANR. versus STATE OF KERALA AND ORS.

Citation: [2000] 1 S.C.R. 107 · Decided: 10-01-2000 · Supreme Court of India · Bench: K.T. THOMAS, M.B. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

ROSY AND ANR. 
A 
v. 
STATE OF KERALA AND ORS. 
J&"lUARY 10, 2000 
[KT. THOMAS AND M.B. SHAH, JJ.] 
B 
Criminal Law .· 
Criminal Procedure Code, 1973 : 
c 
Section 202(2) proviso-Holdi11g of inquiry-By Magistrat~ !11 cases 
exclusively triable by Sessions Court-Nature of Discretionary or man-
datory-Case committed to Sessions Court without examining any wit-
nesl~bjection regarding non-examination of witnesses by the committal 
court raised only at the lWge of final argumenfa· after rewrdmg of prosecution 
evidence and statements of accused under s. 313-Validity of-Held : Per D 
Thomas, !.; mandatory but omission by itself will not vitiate the proceedings 
and if belated objection is taken it has to be decided according to S. 465-Per 
Shah, !; discretionary but omission by itself will not vitiate trial unless it is 
e1·tablished that prejudice is caused to the accu.1ed--Per curium; since the 
objectin11 i~ takrn wher: t11e Ilia/ i.I' almost over the High Court e"ed in 
E 
directing the Afagfatratr! tn conduct a fresh enquiry and thereafter commit the 
case to the Sessions Court-Case remanded to the Sessions Court with the 
direction to complete the hearing and dfapose of the case on merits-Kera/a 
Abkari Act-lnterpretation of Statutes. 
Section 202(2j proviso-Nature of- Mandatory or discretionary--Legis-
F 
lative intent-Detennination of--<.-'riteria fo,._f{eld : Per Thomas, J.; mere 
placement of the proviso belows. 202(2) and not belows. 200 is not the only 
criterion for discerning the legislative inte11t-lndications can be gathered from 
other connected provisions for taking a contrary vieu-{n view of Ss. 204 and 
208 and 4lst Report of the Law Commission S. 202(2) proviso is man-
G 
datory--41st Report of the Law Commis.1ion. 
Section 207:--Nature of inquiry unde~Standard to be adopted by 
Magistrate-Held : Per Shah, J; is of a limited natur~-The standard to be 
adopted by the Magistrate in scrutinising the evidence not the same as that 
adopted for framing of charge. 
H 
107 
108 
SUPREME COURT REPORTS 
12cco11 s.c.R. 
A 
Section 208-Furnishing of documents-To the accused-Held : Per 
Thomas, J; it is obligatory for the Magistrate to supply the documents to the 
accused free of cost. 
Words and Phrases : 
B 
"Shall fumish''-Meaning of-In the contest of S. 208 of the ()iminal 
Procedure Code, 1973. 
The Excise Inspector filed a complaint before the Judicial 
Magistrate under Sections 56 and 57-A of the Kerala Abkari Act against 
C the appellants. As the offences were exclusively triable by the C uurt of 
Sessions, the Magistrate committed the case to the Court of Sessions 
without examining any witnesse~ although ten persons were named in the 
list of witnesses. The appellants-accused did not raise any objection that 
the order of committal was wrong due to non-examination of any witness 
in the committal court either at the time of commencement of proceedings 
D before the Session Court or when charges were framed by the Sessions 
Court or even thereafter. 
After framing the charge, trial was commenced and prosecution 
examined witnesses and thereafter the accused were questioned under 
E Section 313 of the Criminal Procedure Code, 1973. Thereafter, certain 
witnesses were recalled and examined further statements of the accused 
under Section 313 Cr.P.C. were recorded. Even at that stage the accused 
did not raise any objection regurding non-examination of the witnesses in 
the committal court. Hence, the Sessions Court passed over to the next 
stage envisaged in Section 233 Cr.P.C. and directed the accused to enter 
F upon his defence. The accused availed themselves of that opportunity and 
examined four witnesses on the defence side. It was when arguments were 
being heard that the accused raised the objections on the ground that 
witnesses were not examined in the committal court as per proviso to 
Section 202(2) Cr.P.C. 
G 
The Sessions Judge made a reference to the High Court under 
Section 395(2) Cr.P.C. The appellants challenged this reference order by 
filing a revision before the High Court. The High Court directed the 
Magistrate to conduct a fresh enquiry in terms of proviso to Section 202(2) 
by examining all the witnesses and thereafter to commit the case to the 
H Sessions Court. 
ROSY v. STATH 
109 
In the appeal before this CPnrt it was contended on behalf of the 
accused persons that proviso to Section 202(2) Cr.P.C. was mandatory and 
as that was not complied with by the Magistrate, the accused
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