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2013 DIGILAW 1550 (ALL)

Suman Tiwari v. State of U. P.

2013-05-24

ARVIND KUMAR TRIPATHI II

body2013
JUDGMENT Arvind Kumar Tripathi (II),J. List has been revised. None appeared for O.P. No.2. 2. This petition under section 482 Cr.P.C. has been filed by the petitioner for quashing the judgment / order dated 5.1.2013 passed by Additional District and Sessions Judge, Room No. 7, Faizabad in Criminal Revision No. 225/12 (Vijay Kumar Vs. State of U.P.) by which the revisional court has quashed the summoning order in complaint case no. 1002 of 2011 under section 376, 506 I.P.C., P.S. Gosaiganj, District Faizabad. 3. A perusal of the order reveals that an application under Section 156(3) Cr.P.C. was moved by the victim in Police Station Gosaingan, Faizabad orders for investigation were passed. After investigation, final report was submitted. Final report was treated as complaint case and statemnt of witnesses under Section 200 and 202 Cr.P.C. was recorded. After recording the evidence, learned Magistrate summoned the accused persons to face trial under Section 376, 506 Cr.P.C. Two of the accused persons filed revision against that order and those revisions were dismissed by the Sessions Court. It was submitted that a third revision was filed which was transferred to another court and that court allowed the revision and quashed the summoning order and matter was sent back to the court for recording statement of all other witnesses whose name was mentioned in the list of witnesses. 4. Learned counsel for the petitioner argued that now it is not mandatory that all the witnesses whose name finds place in the list of witnesses has to be examined. In support of this contention, learned counsel has relied upon the case of Shivjee Singh Vs. Nagendra Tiwary and others reported in (2010) 7 SCC 578 . Learned Government Advocate also argued in favour of the order but could not dispute the legal position. Paragraph 22 and 23 of the above referred decision is material which is reproduced below : "22. 12. Nagendra Tiwary and others reported in (2010) 7 SCC 578 . Learned Government Advocate also argued in favour of the order but could not dispute the legal position. Paragraph 22 and 23 of the above referred decision is material which is reproduced below : "22. 12. The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. 23. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused." 5. After going through the decision of Apex Court as referred above, it is abundantly clear that the learned revisional court has committed mistake in allowing the revision on the ground that all the witnesses have not been examined and thus the impugned order is liable to be quashed. 6. The writ petition is hereby allowed.Impugned order is quashed. Matter is sent back to learned Magistrate to deal with the case according to law.