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Andhra High Court · body

2005 DIGILAW 406 (AP)

T. Krishna Murthy v. Deep Chand Agarwal

2005-04-25

V.V.S.RAO

body2005
( 1 ) THE petitioners are Accused Nos. 1 to 3 in c. C. No. 233 of 1999 on the file of the court of xiv Metropolitan Magistrate, Nampally, hyderabad. They are being tried for the offences punishable under Sections 341, 384,324 read with Section 34 of Indian Penal code, 1860 (I. P. C. ). The learned Magistrate took cognizance of the offence on a complaint given by the first respondent alleging that the first petitioner, who is Assistant Commissioner of Police, and petitioners 2 and 3, who are sub-Inspector of Police and Constable respectively, beat the first respondent and wrongfully restrained him from 4-00 p. m. on 16-2-1999 till 8-00 a. m. on 17-2-1999. In his complaint, the petitioner cited M/s. Suresh, s/o. G. Laxmaiah; Shaik Zaheer, S/o. Shaik peeran; and Mohd. Jahangir as witnesses and the case is coming up for trial. ( 2 ) THE first respondent herein filed crl. M. P. No. 2977 of 2004 on the file of the court of XIV Metropolitan Magistrate, hyderabad, purportedly under sub-section (2) of Section 204 of the Code of criminal Procedure, 1973 (Cr. P. C.) seeking permission of the Court to examine M/s. Ramesh Chand Sharma, s/o. Sri Narayan Sharma; and sri Satyanarayana Pershed Tiwari, s/o. Mahinder Pershad Tiwari. In his petition, he alleged that Accused No. 1 got kidnapped the witnesses named in the complaint, that l. Ws. 1 and 2, the witnesses, were warned not to come to the Court on pain of facing foisted cases, and that the whereabouts of l. Ws. 1 and 2 are not known. ( 3 ) THE petitioners herein opposed the application filed by the first respondent. They contended that after a gap of five years, if new witnesses were allowed to examine, the same would be prejudicial to the defence of the accused and would amount to filling up lacunae in prosecution case. By impugned order dated 28-9-2004, the Court of XIV metropolitan Magistrate, Hyderabad allowed the petition. The learned Magistrate placed reliance on the decision of Amarchand v. Arum Kumar and Kolangarakath kammukutty v. Kodakkattokath Puthenveettil muhammed and offters. The learned magistrate also observed that if after examining all the witnesses, a charge is framed against the accused or proceedings are initiated for discharge of the accused, it shall be open to the accused to cross-examine all the witnesses. The learned magistrate also observed that if after examining all the witnesses, a charge is framed against the accused or proceedings are initiated for discharge of the accused, it shall be open to the accused to cross-examine all the witnesses. ( 4 ) IN this petition filed under Section 482 cr. P. C. for quashing the order of the learned xiv Metropolitan Magistrate, Hyderabad, dated 28-9-2004, the learned counsel for the petitioners contends that in the absence of the mention of names of M/s. Ramesh chand Sharma, S/o. Sri Narayana Sharma; and Sri Satyanarayana Pershad Tiwari, s/o. Mahinder Pershad Tiwari, they cannot be summoned as witnesses. According to the learned counsel, when the defacto complainant failed to examine L. Ws. 1 and 2 at the stage of Section 245 of Chapter XIX-B of Cr. P. C. or at the stage of Section 246, there is no other go forthe learned Magistrate except to discharge the accused in a case instituted otherwise than on a police report. ( 5 ) PER contra, learned counsel for the first respondent submits that the question of the learned Magistrate exercising power under section 245 for discharging the accused would arise only when all the witnesses including those whose names are not mentioned in the complaint under section 200 Cr. P. C. are examined. Alternatively, the learned counsel would urge that issuing of summons to a person to be examined as witness in a criminal case is a power, which inheres in the Criminal Court, by reason of Section 311 of Cr. P. C. , and therefore, there is no bar for the learned magistrate to issue summons to the persons whose names are not found in the complaint. ( 6 ) THE only question that falls for consideration is, whether in the event of the complainant (in a private complaint) failing to examine the witnesses, the learned competent Magistrate is bound to discharge the accused? ( 7 ) CHAPTER XIX-B deals with the trial of warrant cases instituted otherwise than on a police report. Under Section 244 Cr. P. C. in a warrant case (on a private complaint), the magistrate shall take all such evidence, as may be produced, in support of the prosecution. Under sub-section (2) thereof, on an application by the complainant, the magistrate may issue summons to any of the witnesses directing him to attend the Court. Under Section 244 Cr. P. C. in a warrant case (on a private complaint), the magistrate shall take all such evidence, as may be produced, in support of the prosecution. Under sub-section (2) thereof, on an application by the complainant, the magistrate may issue summons to any of the witnesses directing him to attend the Court. It is very interesting to note that the power of the Magistrate under Section 244 (2) of cr. P. C. does not extend to summon only the witnesses whose names are mentioned in the complaint, the power is a broader power which enables the Magistrate to summon even those persons, who are not cited as witnesses. If, after taking of the evidence produced under Section 244 (1) of Cr. P. C. , or on examining the witnesses summoned under section 244 (2) of Cr. P. C. , the Magistrate comes to the conclusion that no offence, as alleged in the complaint, is made out, the magistrate shall pass orders forthwith discharging the accused. In the event of the magistrate not passing orders to discharge the accused, the procedure under section 246 Cr. P. C. has to be followed. The said provision reads as under. 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-section (3), he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons 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 witnesses 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. Under Section 246 Cr. P. C. , if the Magistrate comes to a prima facie conclusion that the accused has committed offence, a charge shall be first framed. This is first stage. Even after framing the charge and recording the evidence let in by the prosecution, at the second stage as well (after recording evidence), the Magistrate can still discharge the accused, if after such examination of the evidence, the learned Magistrate is of considered opinion that it is a fit case for discharge. In none of the sub-sections of section 246 Cr. P. C. , the power of the magistrate to summon the witnesses whose names are not mentioned in the complaint is curtailed. At the stage of the prosecution leading evidence before passing of an order of discharge, at the stage of framing the charge and at the stage of recording the evidence let in by the prosecution or the evidence by defence, the power of the magistrate is not curtailed. The anxiety of the legislature seems to be to confer wide power on the Court to examine the witnesses on behalf of the complainant at every stage in a warrant case. Therefore, it is not possible to read Sections 244, 245 and 246 Cr. P. C. in the way commended by the learned counsel for the petitioners. ( 8 ) THERE is yet another reason to reject the submission. Chapter XXIV of Cr. P. C. contains "general Provisions as to enquiries and trials". All these provisions in chapter XXIV, do apply to Chapter XIX-B of cr. P. C. Section 311 of Cr. P. C. confers the power on the Criminal Court at any stage of enquiry, trial or other proceeding under the code, to summon a person as witness, whether or not such person was summoned earlier. The repeated use of the words at any stage or any person would indicate that the power of the Magistrate to summon any witness to arrive at the truth is in no way curtailed. The repeated use of the words at any stage or any person would indicate that the power of the Magistrate to summon any witness to arrive at the truth is in no way curtailed. In the case on hand, the first respondent in his petition before the lower court alleged that the accused being Police officers kidnapped L. Ws. 1 and 2 even at the stage of Sections 244 and 245 Cr. P. C. , and therefore, he desires to examine the other witnesses, who, according to him, are also eye witnesses for the incident that happened on 16-2-1999 and 17-2-1999. In that view of the matter, this Court does not find anything, which amounts to abuse of process of the court. Needless to mention that the power under Section 482 Cr. P. C. is intended to give effect to the orders passed by the Court and not to nullify the same. ( 9 ) THE Criminal Petition is misconceived and accordingly dismissed.