SATYADEO PANDEY, v. STATE OF UTTAEPRADESH, — 1987 DIGILAW 72 (ALL)

B. L. YADAV, J. ( 1 ) THIS is a criminal revision under sections 397/401 of the Code of Criminal Procedure 1973 (for short the Code) filed against the order dated 5th January, 1987 passed by the I Additional Munsif-Magistrate, Mirzapur to quash the order summoning the accused for the offences under sections 147, 148, 436, 323, 429, 504 and 506 (2) I. P. C. by issuing a non-bailable warrant. 2. The facts of the case lie in a narrow compass and they are these. Against the applicants a first information report was lodged disclosing the offence under the aforesaid sections. But according to the complainant, the opposite party No. 2, the police did not record the first information report and at the instance of the Superintendent of Police, Mirzapur in the Police Station Kotwali Dehar, the report was entered and the injured persons were examined. But the local police did not take interest and ultimately final report was submitted. Consequently the complaint was filed by opposite party No. 2 against the applicant making allegations about the offence under the aforesaid sections. As many as eleven prosecution witnesses were examined in accordance with the list of the witnesses given by the complainant and the applicants have been summoned by the impugned order dated 5th January, 1987 passed by the I Additional Munsif Magistrate, Mirzapur in view of the procedure provided under section 204 of the Code as there appeared to be sufficient grounds for proceeding against the applicants. It is against this order that the present revision bas been filed. ( 2 ) I have heard Shri N. K. Roy, the learned counsel for the applicants, who strenuously urged that as the police investigation was proceeding, hence the learned Magistrate must have stayed the proceedings of inquiry in view of section 210 (1) of the Code and further that as offence under section 436 I. P. C. was exclusively triable by the Court of Session, hence all the witnesses must have been examined in view of the second proviso to sub-section (2) of section 202 of the Code. As the same was not done, the procedure adopted was illegal and the order deserves to be quashed. Reliance was placed on. (1984 Alid. Cr1. Cases 359)1, Ram Adhar and another v. State2 and Babu Ram and another v. State of Uttar Pradesh3. As the same was not done, the procedure adopted was illegal and the order deserves to be quashed. Reliance was placed on. (1984 Alid. Cr1. Cases 359)1, Ram Adhar and another v. State2 and Babu Ram and another v. State of Uttar Pradesh3. ( 3 ) HAVING heard the submissions made by the learned counsel for the applicants I am of the view that there are no merits in this revision. As regards the first point that the learned Magistrate must have stayed the proceedings of such inquiry as the police investigation was also pending as envisaged by Section 210 of the Code suffice it to say that the learned Magistrate appeared to be conscious about the provisions aforesaid and he has recorded a finding that the police has submitted a final report in the matter. Consequently there was no sense in staying the proceedings before the learned Magistrate. Adverting to the second point much emphasize was laid on the second proviso to section 202 of the Code which is set out below: 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. ( 4 ) IT is well known principle that the statutory provisions must be construed reasonably and rationally to give effect the intention of the legislature. (See Narain v. State of Karnataka4) Similarly in the American Jurisprudence. Vol. 1, Pages 831-839 (Paras 36 and 37) it has been stated that the prime object of construction of laws is to ascertain and carry out the intent of the legislature. ( 5 ) IN the instant case under the second proviso to section 202 of the Code the words used are if the offence complained of is triable exclusively by the Court of Session, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. A bare reading of this provision indicates the wisdom of the legislature inasmuch as the provision is not that the Magistrate shall examine all the witnesses so as to make it obligatory on the part of the Magistrate to examine all the witnesses. The provision, on the other hand is that the Magistrate shall call upon the complainant to produce all his witnesses. The provision, on the other hand is that the Magistrate shall call upon the complainant to produce all his witnesses. Again the words are not all witnessestt, but all his witnesses. The word his is Adjective according to Grammar qualifying word witnesses. His means of himself, or belonging to him, or associated with him. According to the Websters Third New International Dictionary, the word his connotes, associated or connected with him, of relating to him, that he is capable of. In the present contest the words all his witnesses connote that all the witnesses of the complainant associated or connected with his interest and those witnesses who are material and relevant to prove prosecution case. ( 6 ) THE words Tall his witnesses under the proviso to Section 202 (2) of the Code do not refer literally to all the prosecution witnesses in number, rather to all his witnesses (i. e. of the complainant) and to whom he considers material to prove his case. A document was produced by the learned counsel for the applicants in Criminal Case No. 868/86, Pancham v. Satyadeo and others, indicating the list of witnesses, showing fifteen witnesses. But out of them eleven witnesses have been examined and their names have been given in the second paragraph of the impugned order, namely, Debi P. W. 1, Kishore P. W. 2, Cbhathaw PW 3, Laudhar P. W. 4, Teju P. W. 5, Jagai P. W. 6, Ram Nihore alias Phutakkan, P. W. 7, Lal Bahadur P. W. 8, Mangal P. W. 9, Asha P. W. 10 and the complainant Pancham (opposite party No. 2) was also examined as a witness. In this eleven witnesses were examined whereas in the list there were fifteen names given. ( 7 ) THE offence under section 436 I. P. C. i. e. mischief by fire or explosive substance with intent to destroy house etc. was the offence triable by the Court of Session. The remaining four witnesses were No. 12 was Record Keeper, Police Papers Office, Mirzapur and P. W. 13 was Naval Kishore Constable, but as the police has submitted final report, hence the statements of Record Keeper and Constable were besides the point. Similarly P. W. 14 was Dr. M N. Singh and P. W. 15 was Dr. The remaining four witnesses were No. 12 was Record Keeper, Police Papers Office, Mirzapur and P. W. 13 was Naval Kishore Constable, but as the police has submitted final report, hence the statements of Record Keeper and Constable were besides the point. Similarly P. W. 14 was Dr. M N. Singh and P. W. 15 was Dr. B. J. Khanna, their statements were also irrelevant to prove an offence under Section 436 I. P. C. In this view of the matter the remaining witnesses were irrelevant and were correctly not examined under Section 202 (2) of the Code. This is the reason why legislature used the words all his witnesses and not all witnesses. As eleven witnesses were only material to prove the case of the complainant for an offence under Section 436 I. P. C. hence correctly the remaining four witnesses were not examined. There could be no irregularity or illegality by non-examining remaining four witnesses. ( 8 ) THE provisions of section 208 of the Code provide that when process has been issued in view of procedure under section 202 of the Code in a case triable exclusively by the Court of Session, the Magistrate should furnish without delay, to the accused, free of costs, a copy of the statement recorded under section 202 of the Code so that the same may be used by the accused to prepare his defence and to contradict that witness in the witness box The object appears to be that the witnesses who have been examined under section 202 of the Code in a case triable by the Court of Session, only they can be examined before the Court of Session. ( 9 ) THE matter may be viewed from another angle. In the complaint case before issuing the processes under section 204 of the Code the Magistrate substantially does the same thing as provided under section 161 of the Code where the police examines orally any person supposed to be acquainted with the facts and circumstances of the case. In that statement also there is no obligation on the part of the police to examine all the witnesses. The police records the statements of those witnesses whose statements appear to be relevant and are sufficient to support the prosecution case. In that statement also there is no obligation on the part of the police to examine all the witnesses. The police records the statements of those witnesses whose statements appear to be relevant and are sufficient to support the prosecution case. Similarly under the proviso to section 202 (2) of the Code 1 am of the view that in the present case if out of a list of fifteen witnesses eleven were examined, that was sufficient to prove the offence under section 436 I. P. C. triable by the Court of Session. For this offence the statements of the doctor and police constable or Record Keeper were irrelevant. ( 10 ) ADVERTING to the cases relied upon by the learned counsel for the applicants Babu Ram and another v. State of Uttar Pradesh (Supra) Ram Adhar and another (Supra) and 1984 All. Cr1. Cases 395, were cases on different facts and not like present case where offence triable by the Court of Session was under section 436 I. P. C. and witnesses who have not been examined were two witnesses of police (i. e. one Record Keeper and one Constable) and two doctors whose statements were irrelevant to prove prosecution case under section 46 I. P. C. The cases cited on behalf of the applicants are the casts on the facts of those particular cases. They are the cases what they actually decided. In this connection it is better to quote an observation in Quinn v. Leathem,5 Now before discussing the case of A Uah v. Flood (1889) A. C. 1 and what was decided therein there are two observations of a general character, which I wish to make and one is to repeat what I have very often said before, that every judgment must be read applicable to the particular facts proved or assured to be proved, since the generality of the expressions which may be found they are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expositions are to be found. The other is that a case is only an authority for which it actually decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. The other is that a case is only an authority for which it actually decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. In Gakset Radiators Primte Ltd. v. E. S. I. C. 6, their Lordships of the Supreme Court bas observed as follows; Judgments of Courts are not to be construed as Acts of Parliament nor can we read a judgment on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions or facets of such question arose for consideration or not in that case. ( 11 ) IN view of the aforesaid observation I am of the view that the intention of the Legislature as contained in the second proviso to section 202 of the Code has not been considered in the cases relied upon by the learned counsel for the applicants. Further those cases arc distinguishable on facts. Consequently I do Dot consider them to be relevant for the purpose of this case. ( 12 ) BEFORE the order could be signed the learned counsel for the applicants staled that subsequent to the filing of the present revision, an application under section 482 of the Code has been filed by the applicants against the same impugned order and the same has been admitted, hence the present revision may be admitted, But as this revision was filed earlier, arguments in the revision were concluded earlier, but the order could not be signed, hence I consider it proper to decide this revision and sign the judgment and order. ( 13 ) IN view of the discussions made hereinbefore, I do not find any merits in the revision and the same is accordingly dismissed in limine. Revision dismissed. .