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2014 DIGILAW 209 (ALL)

RAM BACHAN v. STATE OF U. P.

2014-01-17

BHARAT BHUSHAN

body2014
JUDGMENT Hon’ble Bharat Bhushan, J.—This criminal revision is directed against the summoning order dated 8.12.2010 passed by Xth Civil Judge (Junior Division) Gorakhpur in Criminal Case No. 26/2010 (Ram Chela v. Ram Bachan) whereby revisionists Ram Bachan and Sadanand have been summoned to face trial under Sections 435, 436, 429, 427& 506 IPC. 2. Brief facts of the criminal revision are that opposite party No. 2, Ram Chela lodged FIR stating that on 21.2.2010 at about 2:30 am revisionists/accused lit fire upon the house of complainant/opposite party No. 2, completely burning the household goods and his pet animals including 8 months old calf. Thus, they destroyed goods worth rupees one lakh. The matter was investigated and a closure report dated 17.4.2010 was filed in the Court. Meanwhile complainant filed a criminal complaint for the same incident in the Court of Additional Judicial Magistrate Ist Ghazipur. The statement of complainant was recorded under Section 200 Cr.P.C. The statement of two witnesses, namely, Benchu and Upendra were also recorded and thereafter the impugned summoning order was passed on 8.12.2010 against the revisionists. 3. Aggrieved, accused persons namely, Ram Bachan and Sadanand have preferred the present criminal revision primarily on the ground that evidence of all witnesses was not recorded under the proviso to Section 202 (2) Cr.P.C. which provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions he shall call upon the complainant to produce all his witnesses and examine them on oath. 4. Heard Sri Shashi Prakash Rai holding brief of Ms. Archita Raghuvanshi, learned counsel for the revisionist, Sri Sharad Srivastava, learned counsel for opposite party No. 2 and learned AGA for the State. 5. Learned counsel for the revisionists has pointed out that offence under Section 436 Cr.P.C. is exclusively triable by the Sessions Court, therefore, it was incumbent upon the Magistrate to record testimonies of all witnesses in terms of proviso 202 (2) Cr.P.C. He has relied upon several judgments of this Court in Dinesh Chand Sinha v. Rahmatullah and another, 1981 ALJ 344, Bhagwan and others v. Kishan Singh, 1985 ALJ 348, Dharamveer and others v. State of U.P. and others, 1991 ALJ 569. Learned counsel for the revisionist has argued that the word ‘shall’ employed in proviso to Section 202 (2) Cr.P.C. indicates mandatory character of this provision. Learned counsel for the revisionist has argued that the word ‘shall’ employed in proviso to Section 202 (2) Cr.P.C. indicates mandatory character of this provision. As learned Magistrate passed the impugned order without recording testimonies of all witnesses. The same cannot be sustained. 6. A perusal of criminal complaint would show that the name of Bechu and one Kamlesh have been mentioned in the complaint. The statement of Bechu was recorded during inquiry alongwith complainant. Additional statement of one Upendra was also recorded. The judgment of this Court in Bhagwan and others (supra) relied by learned counsel maintains that complainant has a right to examine only those witnesses upon whom he intended to rely. A careful examination of F.I.R. reveals that name of witnesses were not mentioned in it. Complaint reveals the name of only two witnesses namely, Bechu and one Kamlesh and a general statement to the effect that witnesses helped him to extinguish the fire. The learned Magistrate examined three witnesses before passing the impugned order. Apparently, only Kamlesh was not produced. 7. Learned revisionist has claimed that non examination of Kamlesh would vitiate the summoning order. I am afraid that the learned counsel for revisionist is giving too much emphasis to the word ‘shall’ employed in proviso 202 (2) Cr.P.C. because the proviso entails that Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. The word ‘his witnesses’ is not without significance. It denotes that complainant can choose his witnesses and can adduce the testimony of only those witnesses upon whom he intends to rely. 8. The Apex Court in Shivjee Singh v. Nagendra Tiwary, 2010 (7) SCC 578 , has further clarified the legal position. The Apex Court has held that examination of all witnesses cited in the complaint is not a condition precedent for issuance of process against the persons named as accused in the complaint. 8. The Apex Court in Shivjee Singh v. Nagendra Tiwary, 2010 (7) SCC 578 , has further clarified the legal position. The Apex Court has held that examination of all witnesses cited in the complaint is not a condition precedent for issuance of process against the persons named as accused in the complaint. The Apex Court has held thus: 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). 9. In view of the aforesaid judgment of the Apex Court, present revision is not sustainable and liable to be rejected. The criminal revision is accordingly dismissed. 10. Let a copy of this order be sent to the concerned trial Court within fifteen days for compliance.