Jogendra Paswan v. State Of Bihar — 1997 DIGILAW 411 (PAT)

Judgment M.Y.Eqbal, J. 1. This revision application is directed against the order dated 23.9.1991 passed by the learned Judicial Magistrate, Dhanbad in C.P. Case No. 94 of 1991 whereby and whereunder the learned Magistrate allowed the complainant- opposite party to examine the witnesses who are not named in the complaint petition before framing of charge. 2. The aforesaid C.P. Case No. 94 of 1991 was initiated on the basis of the complaint petition filed by the complainant-opposite party against her husband- petitioner in the Court of Chief Judicial Magistrate, Dhanbad. In the said complaint petition father-in-law and mother-in-law were also impleaded as accused persons. The complaint petition was filed against the petitioner for committing an offence under Secs. 498A/323 of the Indian Penal Code and under Sec. 3/4 of the Dowry Prohibition Act. 3. The prosecution story was that the complainant was married to the petitioner in the year 1978 and after marriage the petitioner started ill-treating her and demanded for a T.V. and money from her father. It is alleged that on 23.12.1990 the in-laws of the complainant drove her out from house after beating her and she was threatened to bring money and T.V. otherwise she would not be allowed to stay in the house of in-law of complainant. 4. Learned Magistrate took up the enquiry and after finding a prima facie case, cognizance was taken. After the petitioner-accused persons appeared, the learned Magistrate started examination of the witnesses before charge. The complainant-opposite party examined witnesses named in the complaint petition. The complainant, thereafter, when found insufficient materials against the accused persons, proposed to examine three more witnesses whose names have not appeared in the complaint petition. The complainant, therefore, filed a list of the witnesses to be examined and prayed for issuance of summon. The prayer of the complainant was opposed by the petitioner by filing an application stating, that before charge no other witnesses should be examined. Learned Magistrate allowed the complainant-opposite party to examine other witnesses, not named in the complaint petition in terms of the order dated 23.9.1991. Hence this application for revision. 5. Mr. P.K. Mukhopadhyaya learned Counsel for the petitioner assailed the impugned order passed by the learned Magistrate as being illegal and contrary to procedure provided in Code of Criminal Procedure. Learned Magistrate allowed the complainant-opposite party to examine other witnesses, not named in the complaint petition in terms of the order dated 23.9.1991. Hence this application for revision. 5. Mr. P.K. Mukhopadhyaya learned Counsel for the petitioner assailed the impugned order passed by the learned Magistrate as being illegal and contrary to procedure provided in Code of Criminal Procedure. Learned Counsel submitted that the complainant is not entitled to examine any witness, not named in the complaint petition before the charge. Learned Counsel further submitted that after charge is framed and the full fledged trial begins then the complainant would be entitled to examine other witnesses. According to the learned Counsel, before the charge is framed the case reamins in the enquiry stage and complainant to entitled to examine only those witnesses named in the complaint petition. In support of his contention, learned Counsel relied upon a judgment of Punjab High Court in Dalip Singh Gujar Singh V/s. R.P. Biswas, 1967 Cri. L.J. 401 and the judgment of Bombay High Court in State of Bombay V/s. Janardhan and Ors., A.I.R. 1980 (Bombay) 513. 6. On the other hand S.N. Das learned Counsel appearing for the complain- ant-opposite party submitted that the impugned order passed by the learned Magistrate is perfectly legal and valid. Counsel further submitted that there is no provision in the Code of Criminal Procedure which prohibits the complainant to examine the witnesses not named in the complaint petition even before the stage of the framing of charge. Learned Counsel drew my attention to the provision of the Code of the Criminal Procedure and submitted that at any stage of the proceeding the prosecution side may examine any witness whose evidence is relevant. Learned Counsel relied upon a judgment of Allahabad High Court in Ram Prakash V/s. Shatnbhu Dayal Agarwal and Anr., A.I.R. 1960 (Allahabad) 395 and a judgment of Jammu and Kashmir High Court in Asadullah Patwuri V/s. State, A.I.R. 1960 Jammu and Kashmir 44. 7. Before appreciating the rival contentions made by the learned Counsel appearing for the parties, it would be useful to look into the relevant provisions of the Cr. P.C. in the matter of the examination of witnesses. Chapter-XIV of the Code of Criminal Procedure lays down the conditions requisite for initiation of proceedings. This chapter consists of various sections starting from Secs. 190 to 199. P.C. in the matter of the examination of witnesses. Chapter-XIV of the Code of Criminal Procedure lays down the conditions requisite for initiation of proceedings. This chapter consists of various sections starting from Secs. 190 to 199. It is not necessary to state here the various provisions of sections of this chapter. Suffice it to mention Sec. 190. According to that section Magistrate may take cognizance of any offence: (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Chapter-XV consists of Secs. 200 to 203 which provides the procedure at the stage of the taking cognizance. Sec. 200 provides 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. Sec. 201 lays down the procedure where the Magistrate does not compe- tent to take cognizance. Sec. 202 provides that any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or may if he thinks fit 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. Sec. 203 provides that if, Magistrate after considering the statements on oath of the complainant and of the witnesses and after considering the result of the inquiry or investigation made under Sec. 202 finds that there is no sufficient ground for proceeding, he shall dismiss the complaint. 8. From bare reading of Chapters XIV and XV of Cr. P.C. it is manifest that before taking cognizance the Magistrate shall proceed in the manner provided under these chapters. Then Chapter XVI comes which applies at the stage of commencement of proceeding before the Magistrate decided to take cognizance. 8. From bare reading of Chapters XIV and XV of Cr. P.C. it is manifest that before taking cognizance the Magistrate shall proceed in the manner provided under these chapters. Then Chapter XVI comes which applies at the stage of commencement of proceeding before the Magistrate decided to take cognizance. Sec. 204 lays down the provision of issuance of process which reads as under: Issue of process- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) a summon-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he shall issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (If he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under Sub- section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-sec. (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. 5. Nothing in this section shall be deemed to affect*the provisions of Section 87. 9. From bare reading of the aforesaid provision it is clear that when the Magistrate is of the opinion that there are sufficient ground for proceeding against the accused persons then after taking cognizance the Magistrate shall issue necessary process for the appearance of the accused persons. 10. Chapter-XVII lays down the provision of framing of charge. Chapter-XVIII prescribes the procedure for the trial before the Court of Sessions. Chapter-XIX prescribes the procedure for trial of warrant by the Magistrate. It consists of three parts namely Part A, B, and C. Secs. 238 to 243 come within the Part A which prescribes the procedure for trial of warrants cases instituted on a police report. Part-B lays down the procedure for trial in respect of the cases instituted otherwise than on a police report. It consists of three parts namely Part A, B, and C. Secs. 238 to 243 come within the Part A which prescribes the procedure for trial of warrants cases instituted on a police report. Part-B lays down the procedure for trial in respect of the cases instituted otherwise than on a police report. Part B of the Chapter-XIX is relevant for the purpose of this case. Sections 244, 245 and 246 of Cr. P.C. are worth to be quoted hereinbelow : 244. Evidence of prosecution (1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution issue a summon to any of its witnesses directing him to attend or to produce any document or other thing. 245. When accused shall be discharged (1) If, upon taking all the evidence referred to in Sec. 244, the Magistrate considers, for reason to be recorded, that no case against the accused has been made ou.t which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.V 246. Procedure where accused is not discharged (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-sec. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under Sub-sec. (3), he shall be required to state, at the commencement of the next hearing of the case, or if the Magistrate for reason to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witness named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged. 11. Then Part B of Chapter XIX lays down the procedure for trial before and after framing of the charge. From bare reading Sec. 244 it is apparent that before framing of the charge the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Sec. 245 provides that if the evidence adduced by the prosecution does not make out a case against the accused person, the Magistrate shall discharge him. Similarly Sec. 246 provides that if the Magistrate finds that the evidence adduced by the prosecution side is sufficient for presumption that the accused has committed offence then the Magistrate shall frame charge against the accused person and the trial shall further proceed. 12. From composit reading of all the aforesaid provisions and particularly the words used in Sec. 244 i.e. Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, it is manifestly clear that no restriction has been put by the Act restricting the complainant to examine only those witnesses named in the complaint petition. Had the intention of the Legislature been that then there would have been a specific restriction in the provision of Sec. 244 of the Cr. Had the intention of the Legislature been that then there would have been a specific restriction in the provision of Sec. 244 of the Cr. P.C. when at the stage of taking cognizance Magistrate may direct investigation or conduct inquiry for the purpose of collecting evidence for the purpose of deciding a prima facie case then in my opinion at the stage of the framing of charge restriction cannot be implied in Sec. 244 of the Code of Criminal Procedure restricting the complainant to examine only those witnesses named in the complaint petition. 13. In the case of Dalip Singh Gujar Singh (supra) the fact was that the complainant examined all the witnesses named in the complaint petition and their evidence was closed and thereafter the complainant filed a list of some more witnesses to be examined before framing of charge. In the light of the facts of that case it was held that complainant was not entitled to eamine the other witnesses given in the list. In the case of State of Bombay (supra), the Bench of the Bombay High Court took the view that in cases instituted otherwise on a police report the complainant is restricted to the examination of witnesses whose names are given in the list under Sec. 204(1 A) of the Code of Criminal Procedure. However, at the same time the Court took the view that the Court may permit to examine some more witnesses, if it is not going to prejudice the case of the accused or it is not in the interest of justice. With due respect learned Judge has not analysed the provision of Chapters XIV, XV and XVI of the Code of Criminal Procedure and the corresponding provisions under the Old Cr.P.C, 1898. The decision is, therefore, distinguishable. In case of Shubrati Khan V/s. State, reported in 1960 Cri. L.J. 865, learned Judge while considering the provision of Sec. 204(iA) and Sec. 244 of the Code of Criminal Procedure has held that the power of the Magistrate to issue summon to the witnesses is wide enough to include issuing summons against the witnesses not mentioned in list prepared under Sec. 204(iA). The said Court rightly held that the Magistrate is bound to hear all witnesses produced by the complainant in support of the prosecution whether before or after framing of the charge. 14. The said Court rightly held that the Magistrate is bound to hear all witnesses produced by the complainant in support of the prosecution whether before or after framing of the charge. 14. Having regard to the facts and circumstances of the case and the provisions laid down under Secs. 244 to 247 of the Code of Criminal Procedure, I am of the definite view that even before the framing of charge the Magistrate may either on his own motion or on the application by the complainant may examine even those witnesses not named in the complaint petition. The impugned order, therefore, does not suffer from any illegality or infirmity. 15. For the reason aforesaid, I do not find any merits in this revision application. It is accordingly dismissed.