Case Note & Summary
The petitioner, Jose Marie Albert Vales, challenged an order dated 31.07.2012 passed by the learned Sessions Judge, South Goa, which had rejected his revision against an order dated 29.02.2012 of the learned JMFC, Margao, in Criminal Case No. 380/S/03. The JMFC had dismissed the petitioner's application dated 25.01.2012. The short point for consideration was the procedure to be followed in proceedings initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 of the Indian Penal Code, which is a warrant triable case otherwise than on police report. The petitioner's counsel argued that the learned Magistrate had erroneously framed the charge and recorded the evidence of the complainant as if it were a warrant case instituted on police report, whereas the correct procedure is under Chapter XIX-B of the Code of Criminal Procedure, 1973 (CrPC). He submitted that the evidence already recorded could be treated as evidence before charge under Section 244 CrPC. The Additional Public Prosecutor conceded that the procedure under Chapter XIX-B CrPC should be followed. The court, relying on the Supreme Court judgment in Ajoy Kumar Ghose v. State of Jharkhand, (2009) 14 SCC 115, held that the impugned order was unsustainable and quashed it. The court directed the learned Magistrate to treat the evidence already recorded as evidence before charge under Section 244 CrPC and proceed further in accordance with law under Chapter XIX-B CrPC. The petition was allowed.
Headnote
A) Criminal Procedure - Warrant Case Instituted Otherwise Than on Police Report - Procedure under Chapter XIX-B CrPC - For an offence under Section 193 IPC, which is a warrant triable case otherwise than on police report, the learned Magistrate must follow the procedure under Chapter XIX-B of the Code of Criminal Procedure, 1973, and not the procedure for a warrant case instituted on police report. The evidence already recorded can be treated as evidence before charge under Section 244 CrPC. (Paras 3-6)
Issue of Consideration
What procedure is to be followed in proceedings which have been initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 of the Indian Penal Code which is a warrant triable case otherwise than on police report?
Final Decision
The petition is allowed. The impugned order dated 31.07.2012 passed by the learned Sessions Judge is quashed and set aside. The learned Magistrate is directed to treat the evidence already recorded as evidence before charge under Section 244 CrPC and proceed further in accordance with law under Chapter XIX-B CrPC.
Law Points
- Procedure for warrant case instituted otherwise than on police report
- Chapter XIX-B CrPC
- Section 244 CrPC
- Section 193 IPC
- Evidence before charge
Case Details
2013 LawText (BOM) (03) 100
CRIMINAL WRIT PETITION NO. 113 OF 2012
Mr. S. G. Bhobe with Ms. Ninotska Pimenta for Petitioner; Ms. Milena Gomes e Pinto, Addl. Public Prosecutor for Respondent
Shri Jose Marie Albert Vales, alias Robert Vales
1. The District and Sessions Judge, South Goa, Margao, Goa; 2. State of Goa
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Nature of Litigation
Criminal Writ Petition challenging the order of the Sessions Judge rejecting revision against the order of JMFC dismissing the petitioner's application regarding procedure in a warrant case instituted otherwise than on police report.
Remedy Sought
Petitioner sought quashing of the impugned order and direction to follow correct procedure under Chapter XIX-B CrPC.
Filing Reason
The learned Magistrate followed the procedure for a warrant case instituted on police report instead of the procedure under Chapter XIX-B CrPC for a warrant case instituted otherwise than on police report.
Previous Decisions
The learned JMFC, Margao, by order dated 29.02.2012 in Criminal Case No. 380/S/03 dismissed the petitioner's application dated 25.01.2012. The learned Sessions Judge by order dated 31.07.2012 rejected the revision against that order.
Issues
What procedure is to be followed in proceedings initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 IPC, which is a warrant triable case otherwise than on police report?
Submissions/Arguments
Petitioner's counsel argued that the learned Magistrate erroneously framed charge and recorded evidence of complainant as in a warrant case on police report, whereas the correct procedure is under Chapter XIX-B CrPC. He submitted that evidence already recorded can be treated as evidence before charge under Section 244 CrPC.
Respondent's Additional Public Prosecutor conceded that the procedure under Chapter XIX-B CrPC should be followed.
Ratio Decidendi
In a warrant case instituted otherwise than on police report, the procedure under Chapter XIX-B of CrPC must be followed. Evidence already recorded can be treated as evidence before charge under Section 244 CrPC.
Judgment Excerpts
The short point for consideration in the above Petition is what procedure is to be followed in proceedings which have been initiated at the instance of the learned Sessions Judge for offences punishable under Section 193 of the Indian Penal Code which is a warrant triable case otherwise than on police report.
Learned Counsel further pointed out that the procedure to be followed is under Chapter XIX-B of Cr.P.C. and, as such, the learned Magistrate was not justified to follow the procedure of a warrant triable case.
In view of the above, the impugned Order cannot be sustained and is quashed and set aside.
Procedural History
The petitioner filed an application dated 25.01.2012 before the learned JMFC, Margao, in Criminal Case No. 380/S/03, which was dismissed on 29.02.2012. The petitioner then filed a revision before the learned Sessions Judge, South Goa, which was rejected on 31.07.2012. The petitioner thereafter filed the present Criminal Writ Petition before the High Court of Bombay at Goa.
Acts & Sections
- Indian Penal Code, 1860: 193
- Code of Criminal Procedure, 1973: 244, Chapter XIX-B
