SUKANTI SUNA v. SASHIBHUSAN MAHAKUR — 1992 DIGILAW 183 (ORI)

D. P. MOHAPATRA, J. ( 1 ) THE question that arises for determination in this case relates to interpretation of S. 202, Sub-Section (2) proviso of the Code of Criminal Procedure. Shortly stated, the questions whether in a case where the offence complained of is triable exclusively by the Court of Session the cognizance order is vitiated ipso facto if all the witnesses named in the complaint petition are not examined by the complainant. The question has engaged the attention of this Court and of other High Courts from time to time. The contention is raised quite often in revision petitions or petitions filed under S. 482, Cr. P. C. by accused persons. Hence the importance of the matter. ( 2 ) THE factual backdrop of the case, shorn of unnecessary details, may be stated thus : on the complaint petition filed by the petitioner against the opposite party No. 1 and some other persons, I. C. C. No. 75 of 1990 was registered in the court of the Sub-Divisional Judicial Magistrate, Bargarh. Therein the petitioner alleged, inter alia, that on 12-10-90 at about 9 a. m. while she had been to her field the accused persons finding her alone forcibly dragged her to a nearby bush; stripped her clothes and raped her despite her protest. Hearing her cry Ratra Suna and Dhanasingh Suna came to the spot and witnessed the occurrence. Seeing them the accused persons fled away. ( 3 ) THE matter was reported to the local police who advised to settle the dispute in the village. The attempt at reconciliation having failed and the police having refused to take action the petitioner filed the complaint petition alleging commission of offences punishable under Ss. 376, 354 read with S. 109, I. P. C. ( 4 ) IN the complaint petition the petitioner named four witnesses, viz. Ratra Suna, Dhanasingh Suna, Okila Suna and Chudamani Mahakur. Since the case was exclusively triable by the court of session the learned Magistrate initiated an enquiry under S. 202, Cr. P. C. and directed the petitioner to produce all her witnesses for examination. The petitioner examined herself, her husband and three out of the four witnesses named in the complaint petition. Chudamani Mahakur who was named as a witness in the complaint petition was not examined in the case. P. C. and directed the petitioner to produce all her witnesses for examination. The petitioner examined herself, her husband and three out of the four witnesses named in the complaint petition. Chudamani Mahakur who was named as a witness in the complaint petition was not examined in the case. A memorandum was filed by the petitioner on 9-1-91 stating therein that she did not intend to examine any other witness. ( 5 ) THE learned Magistrate considering the material on record took cognizance of the offence under S. 376, I. P. C. and issued process against opposite party No. 1 and dismissed the complaint against some other accused persons (accused Nos. 2 to 8) by the order dated 1-2-91. Against the said cognizance order the opposite party No. 1 preferred Criminal Revision No. 15 of 1991 which was disposed of by the learned Addl. Sessions Judge, Bargarh by order dated 30-11-91. Therein the cognizance order was quashed solely on the ground that all the witnesses named in the complaint petition had not been examined by the petitioner. The said order is assailed in the present proceeding. ( 6 ) SECTION 200, Cr. P. C. which provides for examination of complainant lays down that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. The proviso lays down the circumstances in which the Magistrate need not examine the complainant and the witnesses. Sub-Section (1) of S. 202 vests discretion in the Magistrate, if he thinks fit, to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. The proviso to the said Sub-Section lays down, inter alia, that no such direction for investigation shall be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session. Sub-Section (2) vests discretion in the Magistrate to take evidence of witnesses on oath in an inquiry under Sub-Section (1) if he thinks fit. Sub-Section (2) vests discretion in the Magistrate to take evidence of witnesses on oath in an inquiry under Sub-Section (1) if he thinks fit. The proviso to the said Sub-Section which is particularly relevant for the present purpose specifically provides 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. (Emphasis supplied ). It is evident from the proviso that the procedure laid down therein is mandatory; in other words, if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session he has to call upon the complainant to produce all his witnesses and examine them on oath. ( 7 ) THE question that arises for determination is what is the meaning and import of the words "to produce all his witnesses. " Does it mean all the witnesses named in the complaint petition or it means all the witnesses whom the complainant wants to examine in support of his/her case. To put it differently, whether the complainant has any discretion in choosing the witnesses to be examined in support of his/her case or he/she is bound to examine all the witnesses named in the complaint petition. ( 8 ) THE position is well settled that the procedure prescribed in the proviso to Sub-Section (2) of S. 202 is intended for the purpose of enabling the accused to know all the materials on which the complainant intends to rely to establish the case against him before the case is committed to the Court of Session. As noted earlier, the question has been considered by this Court as well as other High Courts from time to time. I will first refer to the decisions of this Court. In the case of Gokulananda Mohanty v. Muralidhar Mallik, reported in (1979) 47 CLT 244 a Division Bench of this Court consisting of R. H. Misra and B. K. Ray, JJ. interpreting Ss. 200 and 202, Cr. I will first refer to the decisions of this Court. In the case of Gokulananda Mohanty v. Muralidhar Mallik, reported in (1979) 47 CLT 244 a Division Bench of this Court consisting of R. H. Misra and B. K. Ray, JJ. interpreting Ss. 200 and 202, Cr. P. C. expressed its view in the following words :"in our opinion, when the Magistrate after examining the complainant and his witnesses under S. 200 of the Code of Criminal Procedure is of the view that an offence exclusively triable by the Court of Session appears to have been made out, he is bound to take action under the proviso to S. 202 of the Code and there is no discretion left in him not to hold such enquiry. In the enquiry, which is bound to be undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath. "in the case of Ramesh Samal v. Chabi Mandal, reported in 1987 (1) OLR 1 : (1987 Cri LJ 759) another Division Bench of this Court consisting of B. K. Behera and K. P. Mohapatra, JJ. following the decision in Gokulananda Mohanty's case (supra) and certain other cases held that the order of cognizance in a case triable by the Court of Session could not have been passed on the basis of a petition of complaint without examination of all the witnesses for the complainant in flagrant violation of the proviso to Sub-Section (2) of S. 202 of the Code. In the case of Kartikeswar Nayak v. Karadi Jagannath, reported in (1986) 61 CLT 95, K. P. Mohapatra, J. relying on the principle laid down in Gokulananda Mohanty's case (supra) observed :". . . . . . . . . . . . . . . . THEREFORE the petitioner who had complained of an offence of dacoity exclusively triable by the Court of Session and who was called upon by the learned Judicial Magistrate to participate in the inquiry under S. 202 of the Code should not only have produced and examined the witnesses named in the complaint petition but should have also examined himself as a witness, because he was the principal witness and the alleged victim of the dacoity. As he did not examine himself in the inquiry under S. 202 (2) of the Code, on this legal ground alone the complaint petition was liable to be dismissed. "in the case of Jaladhar Das v. Sridhar Das, reported in (1988) 1 OCR 466 L. Rath, J. interpreting the proviso to S. 202 (2), Cr. P. C. observed thus :"it appears that the true import of the proviso is that before cognizance is taken as a result of the inquiry, the complainant must make up his mind and examine all the witnesses whom he wishes to examine either named in the complaint or not and that the Magistrate must call upon him to do so. The declaration of the complainant of his having produced all his witnesses he wants to examine must find place in records of the Magistrate and thereafter it would not be open to the complainant to subsequently examine any other witnesses. The intention of the proviso manifestly is to safeguard a person from harassment and frivolous prosecution but is not intended to unjustifiably restrict the option of the complainant. Since in a G. R. case or Sessions Case the State is not required to examine all the charge-sheet witnesses it does not stand to reason as to why such a restriction would be placed on the complainant. . . . . . . . . "in the case of Rabisingh Naik v. Arjun Majhi, reported in (1990) 69 CLT 82, K. C. Jagadeb Roy, J. after examining several decisions of this Court summed up his views regarding the scope and meaning of the proviso to S. 202 (2) Cr. P. C. in the following words :"this proviso does not speak specifically of all the witnesses referred to in the complaint petition. In S. 200, Cr. P. C. the language is different, it speaks of 'the witnesses present, if any'. There may be cases where witnesses named in the complaint petition may not be available either because of their death or their absence and that their presence could not be procured without sufficient delay in which case it is always open to the complainant to give up some of those witnesses if he so chooses. But this can only be done if he has to make proper application for amending the list of the witnesses mentioned in the complaint petition. But this can only be done if he has to make proper application for amending the list of the witnesses mentioned in the complaint petition. If he does not do so, but chooses only to examine a few and not the rest and closes the evidence that would result in violation of the law contained in the proviso to S. 202 of the Cr. P. C. . . . . . . . . . . . . . . . "in the case of Bata alias Batakrushna Behera v. Inama Behera, reported in 1990 (1) OLR 76 : (1990 Cri LJ 1110) J. Das, J. relying on the decisions reported in 1981 Crl. L. J. 838 Vijay Kumar v. State and 1977 Cr LJ 1473 R. N. Reddy v. K. M. Reddy took the view that if some of the witnesses named in the complaint petition are not examined and cognizance is taken of the offence on the basis of the statements of the witnesses produced by the complainant and examined by the Court, the order of the Magistrate taking cognizance of the offence is not vitiated. In the case of Shankar Rout v. Ramakanta Swain, reported in 1991 (II) OLR 285, A. Pasayat, J. relying on the decision in the case of Gokulnanda Mohanty (supra) and. other decisions of this Court held that "all witnesses" does not necessarily mean all witnesses named in the complaint petition; it means all witnesses the complainant chooses to examine; otherwise the legislative intent would be defeated. A narrow interpretation of the expression "all witnesses" would frustrate the very purpose for which the provision has been inserted. All that the Section requries is that each witness which the complainant chooses to examine to further its case must appear before the Magistrate so that the latter can be satisfied about existence of a prima facie case. In that case since the complainant had not examined himself the case was remitted to the Magistrate to give an opportunity to the complainant to examine himself and to proceed in accordance with law. In the case of Shyam Sunder Sahu and another v. The State of Orissa, reported in the same volume at page 243 the learned Judge took a similar view. In the case of Shyam Sunder Sahu and another v. The State of Orissa, reported in the same volume at page 243 the learned Judge took a similar view. In the case of Dinabandhu Das v. Batakrushan Das, reported in (1991) 4 OCR 574 : (1991 Cri LJ 3273) the learned Judge reiterated the view that the expression "all witnesses" does not mean witnesses named in the complaint petition, but all witnesses whom the complainant wants to examine. In the case of Rabindra Prasad Singh v. Smt. Lili Bain Singh, reported in (1982) 73 CLT 420, I had occasion to examine the question. I took the view that S. 202 (2) proviso neither expressly nor impliedly prescribes any requirement that it is mandatory for the complainant to examine each one of the persons named in the complaint petition as witnesses and further that the Magistrate is duty bound to ensure compliance of this requirement. Therein it was further held that the Magistrate cannot compel the complainant to examine any witness. The complainant has the choice of his witnesses and it is open to him either to drop out some of the witnesses named in the complaint petition or to examine some persons not named therein. A Division Bench of the Andhra Pradesh High Court in the case of Ramchander Rao v. Boina Ramchander and another, reported in 1980 Cr. LJ 593 considering the meaning and import and the purpose behind S. 202 (2) Cr. P. C. held :". . . . . . . . . . . . . . The language of the proviso is clear and unambiguous. Where the case is one triable exclusively by a Court of Session under the proviso to clause (2) of Section 202 it is mandatory on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The word used is 'all' and 'all' does not mean 'some'. The Magistrate has to perform the statutory functions before issuing process in connection with the offences triable by a Court of Session. The examination of the witnesses is not a mere formality. This provision has been incorporated in the Code so that the accused has full information about the allegations about him and to enable him to prepare for his defence. The examination of the witnesses is not a mere formality. This provision has been incorporated in the Code so that the accused has full information about the allegations about him and to enable him to prepare for his defence. The Section while on one hand is intended to restrain the Magistrate from refusing to take cognizance of the offence after examining only some witnesses it is also intended to give a fair and reasonable opportunity to the accused to get adequate information about the charge against him to prepare his defence. " (quoted from placitum) ( 9 ) FROM the conspectus of the view taken in the aforementioned decisions the position that emerges is that in a case triable exclusively by the Court of Session it is mandatory on the part of the Magistrate to hold an enquiry under S. 202, Cr. P. C. and in the said enquiry he is required to call upon the complainant to produce all his witnesses and thereafter the Magistrate is to pass the order committing the case to the Court of Session. The proviso to S. 202 (2) Cr. P. C. neither expressly nor impliedly lays down that it is mandatory on the part of the complainant to examine all the witnesses cited by him in the complaint petition. As in any criminal case the complainant has the choice to give up one or more witnesses named in the complaint petition and to examine a person not cited as a witness in the complaint petition. The consequence of dropping one of the named witnesses is that ordinarily he will not be permitted to examine him during the trial of the case. That is not to say that the trial Judge will be precluded from requiring examination of such a witness if he feels that his examination is necessary for proper adjudication of the case. The record in the case must show that the complainant has consciously and deliberately given up a witness named in the complaint petition. The case of Kartikeswar Nayak (supra) wherein it was observed that the complainant has to examine all the witnesses named in the complaint petition must be confined to the fact of that case. The record in the case must show that the complainant has consciously and deliberately given up a witness named in the complaint petition. The case of Kartikeswar Nayak (supra) wherein it was observed that the complainant has to examine all the witnesses named in the complaint petition must be confined to the fact of that case. ( 10 ) IN the present case co-neededly the complainant filed a memorandum stating that she does not intend to examine Chudamani Mahakur though he was named as a witness in the complaint petition. In such situation the learned Addl. Sessions Judge was clearly in error in holding that the enquiry held by the Magistrate and the cognizance order passed by him were vitiated on account of non-examination of Chudamani Mahakur. ( 11 ) IN the result, the revision petition is allowed, the order dated 30-11-91 passed by the learned Additional Sessions Judge, bargarh in Criminal Revision No. 15 of 1991 setting aside the cognizance order dated 1-2-91 passed by the S. D. J. H. , Bargarh is set aside and the learned Magistrate is directed to proceed with the case in accordance with law. Revision allowed.