Kalji v. State of Rajasthan — 1979 DIGILAW 154 (RAJ)

P.D. KUDAL, J—This is application under sec. 482, Cr.P.C. for quashing the order dated 23-10-1978 in Criminal Case No. 386 of 1978 Ghooriya vs. Kalji, pending in the Court of Additional Munsiff & Judicial Magistrate, Karauli. 2. Brief facts of the case which are relevant for the disposal of this application are that Ghooriya filed a complaint against the petitioner in the Court of the learned Addl. Munsiff & Judicial Magistrate, Karauli on 7-7-1978. It was alleged in the complaint that Mst. Bajrangi, wife of Kakodiya was sleeping alone in her house in the night intervening 24th and 25th June. 1978. Her husband and her father-in-law had gone to village Aduda. Kakodiya is the nephew of the complainant. The accused-petitioner along with one Sugania entered the house where Mst. Bajrangi was sleeping. The accused-petitioner committed sexual inter course on Mst. Bajrangi against her will. Hearing her cries the complainant Ghooriya and one Gheesa came to the spot. The accused-petitioner Kalji then ran away. It is further contended that the complainant approach the Police Station, Sapotra, but he did not get any response from the Police Station. On the other hand, Kalji, who is a peon of the Tehsildar there, lodged a report under sec. 107, Cr.P.C. and got the complainant arrested on 30-6-1978. After having been released the complainant filed this complaint on 7-7-1978 The complainant filed a list of witnesses on 10-7-1978. According to this list, there were eight prosecution witnesses. 3. The statement of the complainant was recorded on 10-7-1978 and on 18-7-1978, the statement of Mst. Bajrangi and Kakodiya were recorded. On 8-8-1978, the statement of Gheesa was recorded, and the prosecution evidence was closed. In the proceedings dated 7-7-1978. it has been observed by the learned Magistrate that in the evidence recorded at the preliminary stage, the statement of Gheesa has been recorded and the prosecution evidence has been closed. On 23-10-1978 the learned Magistrate registered a case under sec. 376, IPC against the accused Kalji. He further ordered that on furnishing the list of witnesses and process fee for issue of warrant of arrest within seven days, the accused be produced before him on 3-11-1978. 4. It has been contended on behalf of the accused-petitioner that an offence under sec. 376, IPC against the accused Kalji. He further ordered that on furnishing the list of witnesses and process fee for issue of warrant of arrest within seven days, the accused be produced before him on 3-11-1978. 4. It has been contended on behalf of the accused-petitioner that an offence under sec. 376, IPC is exclusively triable by a Court of Session, and that the learned Magistrate did not comply with the mandatory provisions of the proviso to sub-sec. (2) of sec. 202, Cr.P.C , 1973. It has been further contended that a great prejudice has been caused to the accused-petitioner inasmuch as the warrant of arrest has been issued against him when there was no medical evidence to support the case of rape and in the absence of the medical report and medical examination, the learned Magistrate has seriously erred in law in taking cognizance of an offence under sec. 376, IPC, and in issuing a warrant of arrest against the accused-petitioner. It has been further contended that according to the provisions of sec. 202, Cr.P.C. 1973, it was incumbent upon the learned Magistrate to have examined all the witnesses which were mentioned in the list of witnesses submitted on behalf of the prosecution. 5. On behalf of the complainant, it has been contended that the proceedings taken by the learned Magistrate are in conformity with law and that no interference is called for by invoking the provisions of sec 482, Cr.P.C, It was also contended that the complainant had closed his evidence vide proceedings dated 8-8-1978 and as such, the learned Magistrate had, in substance, complied with the provisions of sec. 202, Cr.P.C. 6. Reliance was placed on Smt. Nagawya vs. Veerappa Shivalingappa Nonjilgi (1) and M. N. Reddy vs. Kanakanti Mal Reddy (2). Reliance was placed on Prabhu Lal vs. Parmanand in S. B. Criminal Misc. Petition No, 584/1976 decided on 12-1-1979. 7. On behalf of the State, it was contended that the learned Magistrate has acted in conformity with the provisions of sec. 202, Cr.P.C, 1973, and that no interference is called for by invoking the extraordinary powers vested in this Court by virtue of sec. 482, Cr.P.C. 8. Petition No, 584/1976 decided on 12-1-1979. 7. On behalf of the State, it was contended that the learned Magistrate has acted in conformity with the provisions of sec. 202, Cr.P.C, 1973, and that no interference is called for by invoking the extraordinary powers vested in this Court by virtue of sec. 482, Cr.P.C. 8. On behalf of the accused-petitioner reliance has been placed on Madhu Limaye vs. State of Maharashtra (3), R. P. Kapur vs. State of Punjab (4); Sanjay Gandhi vs. Union of India (5); Paranjothi Udyar vs. State (6) and Babu Ram vs. State of U.P. (7). 9. Respective contentions of the learned counsel for the parties have been considered and the record of the case carefully perused. 10. Under the new Code in cases where offence is triable exclusively by the Court of Session the Committing Magistrate has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like sec. 306 enjoins. 11. It is also not open to the committal court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code. The narrow inspection hole through which the Committing Magistrate has to look at the case limits him merely to ascertain whether the case as disclosed by the police report, appears to the Magistrate to show an offence triable solely by the Court of Session. 12. The power under sec. 482, Cr.P.C. is not to be resorted to by the High Court if there is a specific provision in the Code for the redress of the grievance of the aggrieved party, and that it would be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express Bar of law engrafted in any other provision of the Code. 13. If a case triable exclusively by the Court of Session is instituted on a complaint, the accused should be summoned only when the Magistrate has called upon the complainant to produce all his witnesses and examined them on oath and has come to a conclusion that a prima facie case has been made out against the accused. , 14. 13. If a case triable exclusively by the Court of Session is instituted on a complaint, the accused should be summoned only when the Magistrate has called upon the complainant to produce all his witnesses and examined them on oath and has come to a conclusion that a prima facie case has been made out against the accused. , 14. Under sec. 202(2) Proviso the examination of all the witnesses produced by the complainant is mandatory. If the accused is committed to the Court of Session without following this proviso, the order of commitment is liable to be quashed. 15. In M. N. Reddy vs. Kanakanti Mal Reddy(2), it has been held as under:— "The proviso to sec. 202(2) obliges the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. To start with the Magistrate has no power to prescribe the number of witnesses for the purposes for which they have got to examined. It is for the complainant to choose and to append a list of witnesses to the complaint. Therefore, the right of the complainant with regard to the witnesses mentioned in the list cannot be interfered with by the Court nor his right to give up some of them can be interfered with by the Court. It is not the intention of the framers of the enactment to place any embargo on the right of the complainant in the matter of choosing the witnesses to be examined It is open to the complainant to give up some of the witnesses and those witnesses that were so given up can no more answer the description of "his witnesses" within the meaning of that expression as occurring in the proviso. Non-examination of the given up witnesses cannot* be construed as a non-examination of his witnesses. Therefore, the non-examination of the witnesses given up by the complainant cannot vitiate the proceedings. The purpose of the enquiry under sub-sec. (1) of sec. 202 is to enable the Magistrate to decide whether or not there is sufficient ground for proceeding further in the matter. That clothes the accused with a right to cross-examine the witnesses examined only but it does not clothe him with a further right to insist upon the examination of the witnesses given up by the complainant. The proviso to sub-sec. (2) of sec. That clothes the accused with a right to cross-examine the witnesses examined only but it does not clothe him with a further right to insist upon the examination of the witnesses given up by the complainant. The proviso to sub-sec. (2) of sec. 202 of the Cr.P.C. cannot be said to have been infringed by the non-examination of witnesses given up by the complainant." 16. Reference was also made to the decision of this Court in Prabhu Lal vs. Parmanand (S.B. Cri. Misc. Petition No. 584 of 1978) decided on 12-1-1979. The point in issue in that case is totally distinguishable from the point involved in this case. The proceedings dated 8-8-1978 clearly shows that the evidence was closed only for the purpose of preliminary inquiry. The proceedings dated 20-10-1978 shows that the list of witnesses had to be filed within seven days. Thus, the facts of the present case are totally distinguishable from that case, and the view taken in the said case (Prabhu Lal vs. Parmanand ) does not apply to the facts and circumstances of the present case and is thus distinguishable. 17. It would, thus, be seen that in the present case the learned Magistrate has not complied with the mandatory provisions of sec. 202(2) Proviso inasmuch as that all the witnesses contained in the list of witnesses filed by the complainant were not examined. After all the witnesses contained in the list of witnesses have been examined, the Magistrate could commit the accused to the Court of Session. The learned Magistrate, in the instant case, acted as if he was acting under the provisions of the Old Criminal Procedure Code. He recorded the statements of the complainant on 10-7-1978 and that of Kakodiya and Mst. Bajrangi on 18-7-1978 and Gheesa on 8-8-1978. On 23-10-1978, he directed the complainant to file a list of witnesses within seven days when the list of witnesses has already been filed on 10-7-1978. The learned Magistrate has acted illegally without looking to the record of the case. As the learned Magistrate did not comply with the provisions of sec. 202(2) Proviso, his order dated 23-10-1978 is, therefore, liable to be set aside. 18. For the reasons stated above, the petition under sec. 482, Cr.P.C. is hereby allowed. The learned Magistrate has acted illegally without looking to the record of the case. As the learned Magistrate did not comply with the provisions of sec. 202(2) Proviso, his order dated 23-10-1978 is, therefore, liable to be set aside. 18. For the reasons stated above, the petition under sec. 482, Cr.P.C. is hereby allowed. The order of the learned Magistrate dated 23-10-1978 is set aside and he is directed to act in strict accordance with the mandatory provisions of sec. 202, Cr.P.C. 1973 and to commit the accused to the Court of Session if after recording the entire evidence he is of the opinion that the accused should be committed to the Court of Session.