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2006 DIGILAW 155 (JK)

Kala Khan v. Mohd. Yousuf

2006-06-06

MANSOOR AHMAD MIR

body2006
1. This revision petition is directed against the order dated 31.03.2004, hereinafter referred to as impugned order, passed by Ist Class, Judicial Magistrate, Karnah in the complaint titled Kala Khan v. Mohammad Yousuf and others, whereby and where-under complaint came to be dismissed. 2. It appears that complainant/petitioner filed a complaint before the trial court on 5th February, 2003 with the allegations that accused have tried to dispossess the complainant from his land without any right or reason and have intimidated the complainant with criminal intentions. Accordingly, trial court has drawn cognizance and issued process against the accused under Section 506 of R.P.C. 3. Accused appeared and complainant was asked to lead evidence vide order dated 27.03.2003, and was given liberty that in case he required assistance of the Court in calling the witnesses, he had to furnish list of witnesses within three days. 4. Accused raised a plea before the court below that complaint is not maintainable and merits to be dismissed because complainant had failed to, produce the witnesses and, furnish list of witnesses with the complaint or thereafter, in terms of the directions contained in order dated 27th March, 2003. After hearing learned counsel for parties, the trial court dismissed the complaint. 5. The moot point for consideration is whether the impugned order is legally correct? It is profitable to reproduce sub-section 1(a) of Section 204 of Criminal Procedure Code, herein, which reads as under:- "204, 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 one in which, according to the forth column of the Second Schedule, a summons should issue in the first instance, he shall issued his summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, he may 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 not jurisdiction himself) some other Magistrate having jurisdiction. [(1-a) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. [(1-a) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (1-b) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint]. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) 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". 6. This provision of law is mandatory in character and complaint must be accompanied with list of witnesses. The purpose of said law is that accused should know who are the witnesses to be examined by the complainant in support of the allegations contained in the complaint. The aim and object of filing list of witnesses which the complainant has to examine in support of the allegations is that accused get fair chance in order to conduct cross examination of the said witnesses. Calcutta High Court in case titled as Ali Jan v. Amir Khan, reported in AIR1957 Calcutta 332, has observed as under:- "(3). ............All that S.204 (1-A) is designed to serve is that the accused should be apprised at the earliest point of time of the persons who are likely to give evidence against him.............." 7. It appears that without complying with the provisions of sub-section 1(a) of Section 204, process came to be issued. However, after detecting the irregularity the Magistrate asked complainant to furnish list of witnesses but he failed to comply with the mandatory provision of law till complaint came to be dismissed vide impugned order. 8. The full Bench of this Court in case titled as Abdullah Bhat v. Ghulam Mohammad Wani, reported in 1972 Cr.LJ 277, has held that failure to file list of witnesses is an irregularity and can be cured provided no prejudice is caused. The trial court rightly directed the complainant to file list of witnesses but he failed to comply with the mandatory provision of law and direction passed by the trial court. The trial court rightly directed the complainant to file list of witnesses but he failed to comply with the mandatory provision of law and direction passed by the trial court. Virtually the complainant has harassed the accused without any justification from last two years i.e. right from institution of the complaint till impugned order came to be passed. Viewed thus, it has caused great prejudice to the accused. No doubt, this defect is curable in terms of Section 537 of Criminal Procedure Code but that does not mean that Magistrate can with immunity disregard the statutory directions but has to follow the mandate of law. 9. In the instant case, the learned Magistrate has provided chance to the complainant to cure the defect in terms of Section 537. It was duty of the Magistrate to secure compliance of Section 204 Criminal Procedure Code at the earliest possible stage in order to avoid any prejudice to the accused and accordingly, he followed the said mandate of law and issued command and despite of the said direction, complainant failed to comply with the said direction. 10. Now the question, which emerges for consideration is whether after, issuing process and, causing appearance by the accused Magistrate is within his powers to dismiss the complaint. Case under Section 506 RPC is summons case and is to be tried in terms of procedure contained in Chapter XX of the Code. Apex Court in case reported in 1992 Cr.LJ 3779 has held that Magistrate can dismiss the complaint at any stage and can drop proceedings. Keeping in view the said facts, the Magistrate has rightly dismissed the complaint. 11. In the given circumstances, it is hereby held that sub-section 1(a) of Section 204 of Cr. P.C. is not mandatory but directory. However, it is the duty of the Court to secure compliance of the same and if the complainant fails to comply with the direction the Court is within his powers to pass orders. 12. Accordingly, the revision petition is dismissed along with all connected CMP(s). Interim direction, if any, shall stand vacated.