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1980 DIGILAW 74 (PAT)

Naresh Singh v. State of Bihar

1980-03-26

N.P.SINGH, SHIVANUGRAH NARAIN

body1980
JUDGMENT Nagendra Prasad Singh, J. 1. The petitioners have questioned the legality of an order dated 25.10.1978 passed by the learned Chief Judicial Magistrate, Aurangabad summoning these petitioners to stand trial under section 395 and section 307 of the Indian Penal Code. 2. It appears that on basis of a first information by one Ramashish Sao lodged on 25.2.1977 before the Officer-in-charge, Obra P.S. a case was registered. Ultimately, a final report was submitted which was received by the learned Chief Judicial Magistrate, Aurangabad (hereinafter referred to as the Magistrate) on 5.8.1977. On 11.11.1977, a petition of complaint was filed by the aforesaid Ramashish Sao in respect of the same occurrence before the Chief Judicial Magistrate for prosecution of these petitioners under sections 395 and 307 of the Indian Penal Code. In that petition of complaint names of 7 witnesses were mentioned. 3. Learned Magistrate, after perusing the petition of complaint, examined the complainant on solemn affirmation and passed an order saying that he shall hold enquiry under section 202 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). He directed the complainant to produce witnesses in court on 1.12.1977. Thereafter, it appears that on several dates the complainant was absent and the enquiry was adjourned. On 18.3.1978 the complainant appeared with his witnesses but the enquiry was adjourned as the Magistrate was otherwise busy. Ultimately on 18.7.1978 'the, learned Magistrate passed the following orders : "The complainant is present with his witnesses, P.W. 1 Pargan Ram and P.W.2 Lachuman Sao is examined and discharged. Put up on 25.7.78 hearing for cognizance matter". Again the case was adjourned. On 25.10.1978, the impugned order was passed. 4. Before a learned Judge of this Court it was urged on behalf of the petitioners that as the offences complained of are triable exclusively by the court of session and during the enquiry under section 202 of the Code all the witnesses named in the petition of complaint were not examined, there has been a contravention of the mandatory provision as, contained in proviso to sub-section (2) of section 202 of the Code. The learned Judge referred this case to a Division Bench for consideration of the aforesaid question. 5. Section 202 of the Code is different from section 202 of the old Code. The learned Judge referred this case to a Division Bench for consideration of the aforesaid question. 5. Section 202 of the Code is different from section 202 of the old Code. Sub-section (2) of that section is as follows: "In an inquiry under sub-section (i), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to, the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath." 6. On a plaint reading of sub-section (2) of section 202 of the Code it appears that in an inquiry under section 202, the Magistrate may take evidence of witnesses on oath if he thinks fit, but if the offence complained of is triable exclusively by a court of session, (i) he shall call upon the complainant to produce all his witnesses, and (ii) he shall examine them on oath. According to the learned counsel appearing for the petitioners, once the offence complained of is triable exclusively by a court of session, the Magistrate is enjoined by law to call upon the complainant to produce all his witnesses and to examine them on oath, and if there is failure on the part of the Magistrate in this respect, the whole inquiry as well as the order passed on the basis of such an inquiry are vitiated. There cannot be any doubt that proviso contains a special provision in respect of inquiries held in connection with, offences which are triable exclusively by a court of session. Perhaps, the framers of the Code thought it desirable that whenever the enquiry is in respect of an offence which is triable exclusively by a court of session, the complainant should be directed to produce all his witnesses who should be examined on oath. This was to safeguard the interest of the complainant as well as the accused persons. But the question is as to whether this provision is to be read as to mean that the examination of all the witnesses named in the petition of complaint is a must before an order under section 203 or under section 204 of the Code can be passed. Conflicting views have been expressed on this question by different High Courts. But the question is as to whether this provision is to be read as to mean that the examination of all the witnesses named in the petition of complaint is a must before an order under section 203 or under section 204 of the Code can be passed. Conflicting views have been expressed on this question by different High Courts. In the case of Budaraju Seshagiri Rao and others v. T.V. Sarma and. another (1976 Cr. L.J. 902) a learned Judge of the Andhra Pradesh High Court observed: “The proviso appears to be intended to provide against a Magistrate refusing to take cognizance and issue process without calling upon the complainant to produce all his witnesses and examining them on oath. In cases where the offences complained of are triable exclusively by the Court of Session, it is not intended to give a lever to the accused to complains that the Magistrate should not have taken cognizance of the case without examining all the complainant's witnesses. A complainant may complain against the refusal of a Magistrate to take cognizance of the case without examining all his witnesses. But, an accused cannot complain against a Magistrate taking cognizance of a case without examining all the witnesses." But a learned Judge of Madras High Court in the case of Paranjothi Udyar and others v. State and others (1976 Cr. L. J. 598) held: “The statements of all the witnesses produced by the complainant must be recorded and the copies of such statements of all the witnesses so recorded shall be furnished to the accused free of cost........Thus, it is seen that the recording of the statements of witnesses on oath as provided under the Proviso to Clause (2) of Section 202 and the furnishing of copies of such statements as provided under section 208 (i) are mandatory." According to the learned Judge, this provision has been incorporated so that the accused of such an offence can have copies of the statements of such witnesses examined during the enquiry under section 202 which will be to their benefit while preparing their defence. A Bench of Calcutta High Court has also expressed a similar view in the case of Kamal Krishna De v. State and another (1977 Cr. A Bench of Calcutta High Court has also expressed a similar view in the case of Kamal Krishna De v. State and another (1977 Cr. L. J. 1492), in which the learned Judges observed: "On account of non-examination of all the witnesses as contemplated by the proviso to sub-section (2) of Section 202, the accused has been deprived of the statutory right to get adequate information about the charge against him and to prepare his defence." According to the learned Judges, the aforesaid provision was mandatory in nature which must be complied with. A learned Judge of this Court in the case of Daroga Choudhary and others v. Kunti Baitha and another ( 1978 BLJR 649 ) while holding that the requirement of the law was that the Magistrate has to call upon the complainant to produce all his witnesses and examine them on oath. if so produced, observed that if the complainant fails to produce some of his witnesses that shall not vitiate the order of the learned Magistrate passed after such enquiry. 7. The primary object of introducing this provision appears to be that the enquiry in respect of offence which is exclusively triable by a Court of Session, should be detailed one in which the complainant should be directed to produce at his witnesses, and the witnesses so produced, should be examined on oath. This will not only enable the complainant to satisfy the Magistrate about the commission of such offence, but will also safeguard the interest of the accused who may not be before such Magistrate at that stage. In case the accused person is summoned and put on trial then such accused will get copies of their statements on the basis of which he can prepare his defence and contradict the witnesses produced at the sessions trial, if their statements are contradictory to the statements made by them earlier. Section 208 of the Code requires copies of the statements recorded under section 200 or under section 202 of all persons examined by the Magistrate, to be furnished to the accused person before an order of commitment under section 209 is passed. Section 208 of the Code requires copies of the statements recorded under section 200 or under section 202 of all persons examined by the Magistrate, to be furnished to the accused person before an order of commitment under section 209 is passed. As such, there should not be any difficulty that the Magistrate enquiring the allegations in respect of an offence exclusively triable by a Court of Session has to call upon the complainant to produce all his witnesses, and if produced, to examine them on oath. 8. Now, the question is as to what will happen if the Magistrate has directed the complainant to produce all his witnesses and the complainant, for one reason or the other, produces only some of the witnesses out of the witnesses named by him in the petition of complaint. In my opinion, when the aforesaid proviso requires the Magistrate to call upon the complainant to produce all his witnesses, it does not require the Magistrate to wait till the presence of all the witnesses are secured. It is well known that some of the witnesses who are named in the petition of complaint are later gained over or are not inclined to depose in the case. In some cases there may be some other bonafide reason because of which a witness named in the petition of complaint may not be produced before the Magistrate. In such a situation, it is not obligatory on the part of the Magistrate to wait till the presence of such witnesses is secured either at the instance of the complainant or through the process of the court. It cannot be disputed that a Magistrate merely on perusing the allegations made in the petition of complaint along with the statement on solemn affirmation, can summon the accused in respect or an offence exclusively triable by a Court of Session, if he is satisfied on those materials that a prima facie case is disclosed against such accused. He is not enjoined by law to hold enquiry under section 202 whenever the offence complained of is triable exclusively by Court of Session. Then, can it be said that once he decides to hold an enquiry under section 202 in respect of such offence, examination of all the witnesses named in the petition of complaint, who have not been produced by the complainant, is a must ? 9. Then, can it be said that once he decides to hold an enquiry under section 202 in respect of such offence, examination of all the witnesses named in the petition of complaint, who have not been produced by the complainant, is a must ? 9. Section 231 of the Code which is a specific provision regarding of the evidence produced by the prosecution in sessions trial, Itself requires the Sessions Judge "to take all such evidence as may be produced in support of the prosecution". When the Sessions Judge who has to consider the question of convicting or acquitting an accused has to take evidence as may be produced in support of the prosecution and is not required to compel the prosecution to examine all witnesses named in the petition of complaint or the first information report, then it will be too much to read that requirement in an enquiry under section 202. It has been pointed out on several occasions by the Supreme Court that even in sessions court the prosecution is not bound to examine all witnesses named in the first information report, or petition of complaint. It has been pointed out that if the court considers the evidence of any witness necessary, such witness may be examined as a court witness, or in appropriate cases adverse inference may be drawn because of non-production of any material witness. But, there is no obligation on the part of the court to examine such a witness. In my view the requirement of proviso to subsection (2) of section 202 is that the Enquiring Magistrate should call upon the complainant to produce all his witnesses. If for one reason or other, the complainant fails to produce all the witnesses, the Magistrate shall be perfectly justified in proceeding to consider the question as to whether the petition of complaint be dismissed or the accused persons should be summoned on basis of the materials on the record. In the Instant case, learned Magistrate had directed by his order dated 11.11.1977 to the complainant to produce his witnesses. From the order dated 18.7.1978, referred to above. It appears that on that day the complainant was present" only with two witnesses who were examined and discharged. In the Instant case, learned Magistrate had directed by his order dated 11.11.1977 to the complainant to produce his witnesses. From the order dated 18.7.1978, referred to above. It appears that on that day the complainant was present" only with two witnesses who were examined and discharged. Nothing has been pointed out from the records of the case that the complainant had produced any other witness or was prepared to produce other witnesses and the Magistrate refused to record their statements. In such a situation, it cannot be held that there has been a breach of the proviso of sub-section (2) of section 202 of the Code, so as to vitiate the enquiry or the orders passed on the basis of such enquiry. 10. It was then submitted that while summoning the petitioners, the learned Magistrate has perused the police papers and affidavits filed in connection with the police case which had been instituted earlier in respect of the same occurrence. The Code provides two forums for any person aggrieved by any offence perpetrated on him. He may approach the police by lodging an information or file a petition of complaint. In certain circumstances he can do both whenever a petition of complaint is filed during investigation or after submission of the final form, such petition of complaint has to be disposed of in accordance with Chapter XV of the Code. In the case of Chandradeo Singh v. Prokash Chandra Bose ( AIR 1963 SC 1430 ) it was pointed out that while dismissing a petition of complaint it is not open to the Magistrate to refer to the result of the investigation in respect of the same allegation which had preceded the filing of the petition of complaint because these matters would be extraneous to the proceeding before him. Section 203 itself makes it clear that before dismissing the petition of complaint, the Magistrate has to consider the statement on oath of the complainant and of the witnesses along with the result of the enquiry or investigation, if any, held under section 202. Those very materials are to be looked into for purpose of summoning an accused person. Section 203 itself makes it clear that before dismissing the petition of complaint, the Magistrate has to consider the statement on oath of the complainant and of the witnesses along with the result of the enquiry or investigation, if any, held under section 202. Those very materials are to be looked into for purpose of summoning an accused person. A Bench of this Court in the case of Ram Kumar Pandey v. The State or Bihar and another (1979 Bihar Bar Council Journal 293) has held that even for the purpose of summoning an accused the Magistrate should not take into consideration the results of the police investigation or materials collected during the police investigation which had preceded the filing of the petition of complaint. From the impugned order it appears that the learned Magistrate has stated in detail about the institution of the police case and for the purpose of finding out prima facie case he has placed reliance on the result of the investigation by the police as well as the affidavit filed during the investigation. In my view, this was not permissible. 11. Accordingly, I quash the impugned order and direct the Magistrate to decide the question as to whether the accused person should be summoned, on the basis of the petition of complaint, statement of the complainant on solemn affirmation, the statements of the witnesses recorded during the enquiry under section 202 of the Code. This application is, therefore, allowed to the extent indicated above. Learned Magistrate shall pass a fresh order in accordance with the law in the light of the observations made above. 12. Shivanugrah Narain, J. - I agree that the order of the learned Magistrate summoning the petitioners be set aside on the ground that it is partly based on materials elicited in course of the police investigation or the materials produced in the case instituted by the police upon the first information report. But I must confess that if the matter was res integra, I would have felt great hesitation in setting aside the order summoning the accused merely on the ground that the learned Magistrate had acted irregularly in taking into account some extraneous matters even though his conclusion would have been rested on the result of the enquiry held by him which also he had taken into consideration and which he was undoubtedly required to take into consideration. The decision in Ram Kumar Pandey v. The State of Bihar and another (1979 Bihar Bar Council Journal 293) which being a Bench decision is binding upon us and whose correctness has not been impugned before us, is, however, a clear authority for the proposition that an order summoning the accused which is based partly on relevant materials and partly on extraneous materials must be set aside as it is not possible to determine to what extent the decision was influenced by the extraneous materials. In view of the said decision, the impugned order must be set aside. 13. The other contention on behalf of the petitioners, namely, that the order summoning the accused is vitiated on account of the failure of the learned Magistrate to examine all the witnesses cited in the petition of complaint even though they have not been abandoned by the complainant, in my opinion, must fail. Sub-section (2) of section 202 of the Code has already been quoted by my learned brother and the proviso thereof requires the Magistrate to do two things, namely, (i) to call upon the complainant to produce all his witnesses, and (ii) to examine them on oath. The expression all his witnesses' occurring in the proviso is equivalent to all the complainant's witnesses' and the expression 'complainant's witnesses' in the ordinary popular sense which, in the absence of anything to the contrary in the object or the context must be adopted, means such witnesses as the complainant chooses or desires to examine on his behalf. They may be witnesses named in the complaint or they may not be named in the complaint, but they are complainant's witnesses if the complainant chooses or desires to examine them. Therefore, the first requirement of the proviso is that the Magistrate shall call upon the complainant to produce such witnesses as he chooses or desires to examine. 14. The second part requires the Magistrate to examine “them" on oath. Now the expression 'them' must be construed in the context of the direction to the complainant to produce all his witnesses and if the aforesaid context is as it must be, taken into consideration, the conclusion is irresistible that the expression 'them' means all such witnesses as are produced by the complainant. Now the expression 'them' must be construed in the context of the direction to the complainant to produce all his witnesses and if the aforesaid context is as it must be, taken into consideration, the conclusion is irresistible that the expression 'them' means all such witnesses as are produced by the complainant. I must state that witnesses maybe produced by the complainant on one day or on more than one day but the obligation under the proviso of the Magistrate to examine witnesses is confined to witnesses produced by the complainant. I see no warrant for the contention that the expression 'them' means all the witnesses named by the complainant in the petition of complaint unless the complainant chooses to give up any of them. As has been pointed out by my learned brother, sometimes witnesses mentioned in the complaint are not examined. It is also equally common that the witnesses not named in the petition of complaint are examined and in large number of cases while mentioning the names of certain witnesses in the petition of complaint, the complainant adds other witnesses. 14A. The aforesaid. construction of the proviso is fully supported by a decision of a learned single Judge of this Court in Daroga Choudhary and others v. Kunti Baitha and another ( 1978 BLJR 649 ) in which the learned Judge rejected the argument that if all the witnesses named in the petition of complaint are not examined, there is a contravention of the provisions of the proviso to sub-section (2) of section 202 of the Code even in cases where all the witnesses produced by the complainant are examined by the learned Magistrate. The decision of the Madras "High Court in Paranjothi Udyar and others v. State and others (1976 Cr. L. J. 598), which has been relied upon by the learned Advocate for the petitioners on the other branch of his argument also supports this construction. In that case a learned single Judge of the Madras High Court construing the proviso to section 202 (2) observed : "It is mandatory and compulsory on the part of the Magistrate to examine all the witnesses produced by the complainant". (emphasis supplied). In that case a learned single Judge of the Madras High Court construing the proviso to section 202 (2) observed : "It is mandatory and compulsory on the part of the Magistrate to examine all the witnesses produced by the complainant". (emphasis supplied). The learned Advocate for the petitioner referred to the expression take all such evidence as may be produced' occurring in sections 231 and 244 of the Code and contended that if the Legislature, had intended to confine the obligation to examine witnesses under the proviso to section 202 (2) of the Code to the witnesses produced by the complainant, it would have used similar expression and not the pronoun them. In my opinion, this argument has to be stated only to be rejected. The expression them' is a pronoun and its significance can only be ascertained with reference to the noun or the noun clause for which it stands which in the context is all the witnesses produced by the complainant. The same thing may be expressed in different words. 15. Coming to the facts of the case, in my opinion, there can be no doubt that the twin requirements of the proviso to section 202 (2) as explained by me have been complied with. By his order dated 11.11.1977 the learned Magistrate had given a "direction to the complainant to produce his witnesses". The specific direction shows that the learned Magistrate was conscious of the provisions of the new proviso to section 202 (2) and it will be 'piling unreason upon technicality' to hold that when the Magistrate directed the complainant "to produce his witnesses", he did not direct him to "produce all his witnesses". The expression 'witnesses' is not qualified in any way and prima facie means all his witnesses. The first requirement of the proviso to section 202 (2) has, therefore, clearly been fulfilled. 15A. I have also no doubt, in the facts and circumstances of this case, that the learned Magistrate had examined all the witnesses produced by the complainant before him. What witnesses are produced on a particular day before the Magistrate is usually to be ascertained by the “hazri” filed in the Case. The "hazri" of witnesses was filed in the complaint case and also in the connected police case. In the complaint case, "hazri" of only one witness Pargan, was filed. What witnesses are produced on a particular day before the Magistrate is usually to be ascertained by the “hazri” filed in the Case. The "hazri" of witnesses was filed in the complaint case and also in the connected police case. In the complaint case, "hazri" of only one witness Pargan, was filed. In the other case, hazri of two witnesses, besides that of the complainant was filed. It is, thus, clear that on 18.7.1978, on which date the witnesses were examined, only two witnesses, besides the complainant, were produced by the complainant and the learned Magistrate examined both of them. There does not appear to be any reasonable probability of the learned Magistrate having asked the complainant not to produce any more witness. The order sheet of 18.7.1978 does not say so and such action on the part of the Magistrate would only be probable if the Magistrate had decided then and there that the evidence of the witnesses examined was sufficient for issue of process to the persons complained against. On 18.7.1978, the learned Magistrate did not pass any order issuing process against the persons complained against and adjourned the case for hearing on cognizance matter, a circumstance which shows that he was still to make up his mind on that point, My attention has not been drawn to any petition filed by the complainant showing that he wanted to examine any more witness or that he wanted an adjournment of the case to enable him to examine more witnesses. In the absence of any such petition, and the fact that he filed hazri of only the two witnesses examined, the conclusion-is irresistible that these were the only two witnesses produced by the complainant and intended to be examined on his behalf. The second requirement of the proviso therefore, was also fulfilled. 16. As both the requirements of the proviso to section 202 (2) have been fulfilled, it is manifest that the contention that the order summoning the accused is vitiated on account of omission to examine all the witnesses named in the petition of complaint must fall, even if the provisions of the proviso to sub section (2) of section 202 are held to be mandatory. In these circumstances. In these circumstances. I do not feel it either necessary or desirable to go into the question whether failure to comply with the provisions of the proviso to sub-section (2) of section 202 of the Code vitiates an order summoning the accused, a question on which divergent views have been expressed, by the Andhra Pradesh High Court on the one side and by the Madras and Calcutta High Courts on the other, in decisions to which reference has been made by my learned brother.