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2013 DIGILAW 212 (MP)

Mukhidevi v. State of M. P.

2013-02-20

BRIJ KISHORE DUBE

body2013
ORDER 1. This revision is preferred by the petitioner/complainant under sections 397 and 401 CrPC against the order dated 9.8.2012 passed by I Additional Sessions Judge, Bhind in Criminal Revision No. 182/2012, reversing the order dated 22.2.2012 passed by the JMFC, Bhind in Criminal Case No. 240/2012 whereby cognizance under sections 302/34 of IPC has been taken against the accused persons and remitted the case to the JMFC to pass an appropriate order after recording the evidence of the remaining witnesses cited in the list of witnesses. 2. The brief facts of the case are that the petitioner/complainant has filed a private complaint against eight accused persons alleging that they have killed her husband, Jitendra and alongwith complaint, list of witnesses containing eight names was also submitted. Learned Magistrate recorded the statements of the five material witnesses cited in the list of witnesses under sections 200 and 202 of CrPC. After closing the evidence by the complainant, arguments heard. Vide order dated 22.2.2012, the learned Magistrate found that a prima facie case is made out and taken cognizance under section 204 of CrPC., against the accused persons for the offence punishable under sections 302/34 of IPC and directed to issue notice against them for their appearance before it on 29.3.2012. Being aggrieved by the aforesaid order the accused/Dasharath Yadav preferred a revision petition. The revisional Court vide order dated 9.8.2012 set aside the order dated 22.2.2012 passed by the JMFC under section 204 of CrPC and remitted the matter back on the ground that the evidence of three other witnesses, namely, Dr. UPS Kushwaha, Head Constable SC Vishanath Upadhya and ASI B.L. Tyagi whose names were mentioned in the list of witnesses had not been recorded as required under proviso to section 202(2) of CrPC. Against which, this petition is preferred by the petitioner/complainant. 3. The mute question for consideration in this case is that in the light of proviso to section 202(2) of CrPC the examination of all the witnesses cited in the list of witnesses filed alongwith complaint is mandatory before taking cognizance ? 4. Against which, this petition is preferred by the petitioner/complainant. 3. The mute question for consideration in this case is that in the light of proviso to section 202(2) of CrPC the examination of all the witnesses cited in the list of witnesses filed alongwith complaint is mandatory before taking cognizance ? 4. The aforesaid question was considered by the apex Court in the case of Shivjee Singh vs. Nagendra Tiwary and Ors reported in 2010 CrLR (SC) 628 and after taking into consideration of all its earlier judgments on the subject ruled that the complainant is not bound to examine all the witnesses named in the complaint but can examine those witnesses who are material to make out a prima facie care against the accused persons. The examination of all the witnesses cited in the complaint is not a condition precedent for taking cognizance by the Magistrate. The relevant para reads as under:- “16. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to section 202(2) CrPC.” 5. Therefore, in view of the facts and circumstances of the case and law laid down by the apex Court in the case of Shivjee Singh (supra), in the opinion, of the Court, the Revisional Court has committed an illegality and error in passing the impugned order. 6. Consequently, the Criminal Revision is allowed and the impugned order dated 9.8.2012 passed by the First Additional Sessions Judge, Bhind is set aside and it is directed that the JMFC will proceed further in the matter in accordance with law. 7. With the aforesaid, petition stands disposed of.