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2005 DIGILAW 1035 (PAT)

Md. Kamal Mian @ Md. Kamal v. State of Bihar

2005-12-01

body2005
ORDER Heard Learned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel appearing on behalf of the opposite party no. 2. 2. The petitioner is aggrieved by the order dated 16.3.2000 passed in Sessions Trial No. 255/96 and the consequential order dated 17.7.2003 passed by the Judicial Magistrate, Bhagalpur. 3. Complaint Case No. 351/95, was instituted under Sections 406, 420, 323, 386 read with Section 34 of the Penal Code. The Magistrate proceeded to examine the complainant on solemn affirmation and took cognizance under Sections 323, 366A and 384 of the Penal Code only. The case was then committed to the Court of Sessions as the offences were sessions triable. The trial appears to have progressed before the Sessions Judge. 4. Learned Counsels for the parties are not in dispute over the fact that the trial would have proceeded and would have reached the concluding stage when the judgment would have been reserved by the 4th Additional Sessions Judge, Bhagalpur. It was at this stage that the order dated 16.3.2000 assailed presently came to be passed. 5. Learned Counsel for the petitioner submits that the impugned order is erroneous in law in• as much as it would incorrectly interpret Section 202(2) Cr.P.C. Proviso, and hold that in a sessions triable case the Magistrate was obliged to examine all the witnesses of the complainant on oath and in absence of the same the very committal order itself would be bad. It is submitted that once the Magistrate would have been satisfied on the evidence placed before him furnished only by the Complainant on SA., alone, and he would have taken cognizance, nothing further was required and the fact that all the witnesses may not have been examined would not be fatal to such order of cognizance. In any event of the matter, the order would have been passed at such a belated stage the result of which would be to set at naught the entire trial and the process completed till now. The order if allowed to stand would only result in de no vo trial and subject the petitioner to further harassment and tribulations. 6. Learned Counsels for the opposite parties, in support of the impugned orders would urge that it was in consonance with the statutory provisions and language of the Section. The order if allowed to stand would only result in de no vo trial and subject the petitioner to further harassment and tribulations. 6. Learned Counsels for the opposite parties, in support of the impugned orders would urge that it was in consonance with the statutory provisions and language of the Section. Examination of all the Complainant's witness was a mandatory requirement for the magistrate in a Sessions Triable Complaint case. 7. Having considered the submissions of the Counsels for the parties, the issue for determination presently would be the scope and meaning of the proviso to Section 202(2) Cr.P.C. which the Court considers appropriate to quote below:- "202. Postponement of issue of (2) In an inquiry under sub-section (1) the Magistrate may, if he thinks fit take evidence of witness 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." (Emphasis mine.) 8. A plain reading of the proviso would require that in a sessions triable case the Magistrate at the stage of enquiry is required to call upon the complainant to produce all his witnesses and examine them on oath. The question for determination presently would be whether the statute makes it mandatory for a complainant to produce all his witnesses before the Magistrate in a Sessions Triable case, and in the event of his failure to do so or the Complainant to produce them, is the Court obliged to exercise its power to compel the attendance of the witnesses or can the court proceed to take cognizance on the basis of such evidence as rendered before it to its satisfaction enabling it to take cognizance. 9. Another relevant aspect for consideration in the present case would be the stage at which the order dated 16.3.2000 came to be passed, in the facts and circumstances of the present case. 10. This Court finds that the issue for determination presently would stand decided conclusively by the Supreme Court in a judgment reported in AIR 2000 SC 637 (Rosy & another Vs. State of Kerala & others). 11. The salient facts of the case to be noticed are, the Magistrate in a Sessions Triable Complaint, without examining any witness proceeded to commit the case and charges were also framed. State of Kerala & others). 11. The salient facts of the case to be noticed are, the Magistrate in a Sessions Triable Complaint, without examining any witness proceeded to commit the case and charges were also framed. It was at the stage of argument that the defence would have taken the objection regarding non compliance of Section 202(2) Cr.P.C. Proviso. 12. Their Lordships refused to interfere in the matter for the reason that the objection not having been taken in time, if upheld would result in unnecessarily prolonging the criminal prosecution when it would be at the concluding stage. Quite apart from that the effect and scope of the Proviso to Section 202(2) Cr.P.C. would have specifically come up for consideration by their Lordships. The judgment would be separately by two judges constituting the Bench. Both of them by separate concurring Judgments for their own reasons would have held that the proviso was an enabling provision to form an opinion as to whether or not the process should be issued and to remove from the mind of the Magistrate any hesitation that he may have felt upon the mere perusal of the complaint and consideration of the complainant's evidence on oath. Hence the proviso to said sub-section was required to be read accordingly though couched in mandatory language. The conclusion would be specific that the Magistrate was not obliged to examine all the witnesses, who could not be produced by the complainant. The Court considers it proper to reiterate, here what his Lordship Justice M.B. Shah, would conclude at para 47 and 48 of his Lordship's concerning judgment, in its relevant extract: "47. Hence, what emerges from the above discussion is:- II. (b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Trial for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204(2) before issuance of the process. (c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point put how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later. 48. The High Court failed to notice the provisions of Section 465 of the Code as the objection with regard to such error, omission or irregularity in the committal order was required to be raised at the earliest stage. After committal order in the case, the trial was almost over as evidence of the prosecution witnesses was recorded by the Sessions Court, statements of the accused under Section 313 of the Code were also recorded, thereafter witnesses were recalled and examined, further statements were recorded and only at the stage of arguments the contention with regard to the so-called irregularity was raised, which is upheld by the Sessions Court and the High Court. In the background of these facts, we hold that holding of fresh inquiry under Section 202 would be totally unnecessary in the present case and thereafter to commit the case again to the Sessions Court.” 12. In the present case, after the order of the Sessions Court, the Magistrate on remand examined the witnesses of the complainant, took fresh cognizance and proceeded to issue non bailable warrants against the accused by the consequential order dated 17.7.2003. 13. In the result, and on the law as noticed above, this application has to be allowed. The order dated 16.3.2000 and the consequential order dated 17.7.2003 are accordingly set aside. 14. 13. In the result, and on the law as noticed above, this application has to be allowed. The order dated 16.3.2000 and the consequential order dated 17.7.2003 are accordingly set aside. 14. The concerned Sessions Court shall now proceed with the case from the stage at which the order dated 16.3.2000 came to be passed, in accordance with law. The Magistrate concerned shall proceed to remit the records to the Sessions Court forthwith.