SHIVJEE SINGH versus NAGENDRA TIWARY AND ORS.

Citation: [2010] 7 S.C.R. 667 · Decided: 06-07-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2010) 7 S.C.R. 667 
SHIVJEE SINGH 
V. 
NAGENDRA TIWARY AND ORS. 
(Criminal Appeal No. 1158 of 2010) 
JULY 6, 2010 
[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 
A 
B 
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 
8 four witnesses cited in the protest petition-cum-
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. 
H 
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 
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 
for initiation of proceedings. Chapters XV and XVI 
contain various procedural provisions which are required . 
o· 
to be followed by the Magistrate for taking cognizance, 
issuing of process/summons,

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