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Madhya Pradesh High Court · body

2012 DIGILAW 697 (MP)

Sonal K. Ameen v. Neena Patel

2012-07-10

M.A.SIDDIQUI

body2012
JUDGMENT : M.A. Siddiqui, J.- Since both the petition have been filed against the common order passed in Complaint Case No. 272/12 dated 16.1.12 by Judl. Magistrate 1st Class, Jabalpur by which cognizance has been taken under Sections 120 - B, 420,465,466,467,468,471,472,473,474,477/34 of Indian Penal Code (hereinafter referred to as "IPC"), so they are being decided by this common order. 2. Learned senior counsel appearing for petitioners do not want to press the relief of quashment of the aforesaid charge at this stage and made a request that they will agitate it before the appropriate forum at appropriate time. So, the only prayer is that since only 5 witnesses have been examined, so no further witness should be permitted to be examined in the Sessions Court as some offences, i.e., offences punishable under Sections 466, 467, 468, 471, 472, 473, 474 and 477 of IPC are exclusively triable by Court of Sessions by Madhya Pradesh Act 2 of 2008, and case is to be committed and will be tried by Court of Sessions. Section 202(2) proviso of Cr.P.C. is mandatory so no other witness should be allowed to be examined except the witnesses already examined by complainant no. 2 himself and other Court witnesses. 3. For clarifying the legal position, it is necessary to quote the provisions relating to complaint case which are as under: - "200. Examination of complainant. -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. Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 202. Postponement of issue of process. 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction 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: Provided that no such direction for investigation shall be made: - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer - in - charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 204. Issue of process. 204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is a sufficient ground for proceeding, and the case appears to be- (a) a summons - case, he shall issue his summons for the attendance of the accused, or (b) a warrant - case, 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 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-section (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 sections?. 207. Supply to the accused of copy of police report and other documents. (5) Nothing in this section shall be deemed to affect the provisions of sections?. 207. Supply to the accused of copy of police report and other documents. In any case where the proceedings has been instituted on, a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the police report; (ii) the first information Report recorded under section 154; (iii) the statements recorded under sub - section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173; (iv) the confessions and statements, if any, recorded under Section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under the sub-section (5) of Section 173; Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused; Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 208. Supply of copies of statements and documents to accused in other cases triable by Court of Session. 208. Supply of copies of statements and documents to accused in other cases triable by Court of Session. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the folio wing:- (i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to reply; Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - (a) Commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this code relating to bail, remand the accused the custody until such commitment has been made; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) Notify the Public Prosecutor of the commitment of the case to the Court of Session. 4. Learned counsel for petitioners placed reliance on a decision of Apex Court in Rosy and another vs. State of Kerala and others (2000) 2 SCC 230 in which it has been held as per majority that for cognizance it is not necessary to examine all witnesses of complainant, complainant may examine the witnesses of his choice for making out a prima facie case. As per Hon'ble Thomas, J. provisions of Section 208 of Cr. PC. As per Hon'ble Thomas, J. provisions of Section 208 of Cr. PC. requiring the Magistrate to furnish to the accused, free of cost, a copy of the documents, etc. is mandatory. 5. Petitioners have also placed reliance on a decision of this Court in Nanjiram s/o Mohanlal Lodha vs. State of M.P. 2008 (4) MPLJ 581 wherein it has been held that offences exclusively triable by Court of Sessions are tried by the Magistrate, irregularity or non - compliance of section 202 (2) proviso would not vitiate the further proceedings in all cases. Person complaining such irregularity should raise objection at the earliest stage and point out the prejudice caused or likely to be caused to him by not following the proviso. He shall be precluded from raising the objection later. It has also been observed that: - "11. 47 (b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, 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. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court 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." 6. Reliance has also been placed on a single Bench judgment of this Court in Waseem Siddique (Dr.) vs. State of M.P. 2006 (2) MPLJ 24 wherein it has been held that the provisions of Section 202 (2) proviso of Cr.P.C. is mandatory. 7. Learned counsel appearing for respondents submitted that the discretion of Court cannot be taken away and if complainant is stopped to examine the witnesses other than the examined witnesses in the Court of Session, then the other provisions of Section 311, 319 of Cr.P.C. will be frustrated. 7. Learned counsel appearing for respondents submitted that the discretion of Court cannot be taken away and if complainant is stopped to examine the witnesses other than the examined witnesses in the Court of Session, then the other provisions of Section 311, 319 of Cr.P.C. will be frustrated. Reliance has been placed on a decision of Apex Court in Mohanlal Shamji Soni vs. Union of India and another (Criminal Appeal Nos. 4 and 5 of 1979, decided on February 22,1991) and in Shailendra Kumar vs. State of Bihar and others (2002) 1 SCC 655 . These cases relate to provisions of Section 311 of Cr.P.C. which deals with the powers of the Court. As far as provisions of Section 311 and 319 Cr.P.C. are concerned, they are discretionary and relating to powers of the Court. While in this case duty of the complainant is to be seen who has not examined all witnesses. 8. Learned counsel for respondents submitted that since joint complaint was filed by two complainants and one complainant has been examined and the other may be examined before the Sessions Court, and as far as joint complaint is concerned, reliance has been placed on a decision in Shital Chandra Datta Vs. Babu Ram Jadaun and others AIR 1967 Allahabad 150 wherein it has been held that joint complaint by two or more persons is a valid complainant. Same is the dictum in Duncan Industries Ltd. and others vs. State and Ors. 2005 (4) CHN 440 (C.R.R. no 3020 of 2004 decided on 18.03.05 by Calcutta High Court). The decisions of Apex Court in Shivjee Singh vs. Nagendra Tiwary and others AIR 2010 Supreme Court 2261 is worth referable wherein it has been said that provisions of Section 202(2) of Cr.P.C. are not mandatory but directory. 9. Learned counsel for petitioners placed reliance on Rosy and another vs. State of Kerala and others (supra) in which Hon'ble Thomas J. has held that provisions of Section 208 Cr.P.C. are mandatory in form. Submission of learned counsel is that statements recorded under Section 200 or 202 of Cr.P.C or all persons examined by Magistrate, copies shall be given free of cost so as to safeguard the interest of accused and he shall not be surprised at the time of trial. Submission of learned counsel is that statements recorded under Section 200 or 202 of Cr.P.C or all persons examined by Magistrate, copies shall be given free of cost so as to safeguard the interest of accused and he shall not be surprised at the time of trial. Further submission of petitioners is that under Section 204 (2) of Cr.P.C. no summons or warrant shall be issued against the accused until a list of the prosecution witnesses has been filed, and as per list of complaint case, witness No. 1 complainants themselves, and witness no. 2 to 5 have been examined and 6th number any another witness as and when required is shown. This sixth item has been vehemently objected. It is said that name of any witness has not been cited and no witness has been examined so complainant cannot examine any witness and even remaining complainant can also not be examined. 10. Learned counsel for respondents have submitted that since complaint is joint and names of complainant themselves have been shown as item no. 1 so other complainant may be examined at the times of trail before the Court of Session. 11. Learned counsel for petitioners submitted that as per provisions of Section 202(2) proviso and section 208 of Cr.P.C. those witnesses whose statements' copies are supplied can be examined and none others. 12. As per above authorities, it is clear that complainant and his witnesses who have been examined before the trial Court at the time of taking cognizance can only be examined in Sessions Court and no other witnesses can be permitted to be examined even remaining complainant. So, these petitions are partly allowed. As far as quashing of complaint is concerned, as per request made by learned counsel for petitioners of withdrawj of the above request, and as they may want to reserve this right to be raised at the appropriate forum and appropriate time, this petition is disposed of with the direction that complainant and witnesses Goutam Vinay Patel, Anil Kumar Mathur, Dr. V. K. Bhardwaj, Dr. Maya Chansoria and Dr. Ajay Seth who have been examined on 23.8.11 under Section 200 of Cr.P.C. will only be examined at Sessions Courts, and no other witness shall be permitted to be examined.