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2014 DIGILAW 377 (KAR)

Jyothi Rani v. Jyothi

2014-03-20

K.N.PHANEENDRA

body2014
Order K.N. Phaneendra, J. 1. A short question raised for consideration is that, whether the Magistrate has right in issuing summons or warrants against the petitioners herein under Section 204 of Cr.P.C., even without examining all the witnesses on behalf of the complainant, when the offence is exclusively triable by the Court of Sessions. 2. The records disclose that the respondent herein Smt. Jyothi W/o Nagesh Goudar has filed a private complaint under Section 200 Cr.P.C. before the learned JMFC II Court, Hubli, for the alleged offences punishment under Sections 143, 147, 451, 323, 354, 504,506, 307 r/w Section 149 of Indian Penal Code, 1860. Out of the above said offences, Section 307 of Indian Penal Code, 1860 is exclusively triable by the Court of Sessions. The complaint discloses that the complainant has cited four witnesses. It is also seen that the complainant examined herself as CW-1 and also examined two more witnesses by name Pradeep Savadatti and Gurunatha Basappa Hadapad. But, she has not examined the witness No. 1-Uma wife of Deenanath Bentoor and also witness No. 4-R.M.O. of KIMS Hospital, Hubli. The learned Magistrate has, in fact, on the date of the lodging of the complaint, took cognizance and proceeded to record the statement of these two witnesses, including the complainant and thereafter, issued process against the accused persons, vide order dated 5/5/2012. The learned Counsel for the petitioners submits that they challenged the said order before this Court under Section 482 of Cr.P.C and the said petition was converted into Revision by the order of this Court. In the meantime, the learned Magistrate has also issued warrants to secure the presence of the petitioners herein. The order discloses that the learned Magistrate has taken cognizance even for the offence punishable under Section 307 of Indian Penal Code, 1860, also which is exclusively triable by the Court of Sessions. As rightly contended by the learned Counsel, Section 202 Cr.P.C mandates recording of the statement of all the witnesses. It is just and necessary to reproduce Section 202 of Cr.P.C. regarding postponement of issue of process:-- "202. As rightly contended by the learned Counsel, Section 202 Cr.P.C mandates recording of the statement of all the witnesses. It is just and necessary to reproduce Section 202 of Cr.P.C. regarding postponement of issue of process:-- "202. Postponement of issue of process.- (1)...XXXX (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. This provision is not directory, but, it is mandatory provision. On plain reading of the above said provision, it clearly mandates that, the learned Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. In the words used in the said proviso to said Section 'witnesses' means the complainant is at his discretion to examine the witnesses as per his choice though many number of witnesses have been cited in the complaint. But, that does not mean to say, the learned Magistrate, without asking the complainant, whether he proposes to examine all his witnesses as mentioned in the complaint or not, the learned Magistrate cannot proceed to issue process to secure the accused persons. Of course, in certain circumstances, the witnesses may not be under the control of the complainant. In such circumstances also, the learned Magistrate is bound to ask the complainant whether he want to take summons to those witnesses for the purpose of examining them, if they are really material witnesses for the purpose of adjudicating the issue whether summons have to be issued against the accused persons or not. Therefore, the learned Magistrate is bound to examine all the witnesses of the complainant, if he wants to examine during the trial. It is not necessary to examine all the witnesses named in the complaint, but, complainant can examine some of the witnesses and give-up rest of the witnesses at his risk. Therefore, the learned Magistrate is bound to examine all the witnesses of the complainant, if he wants to examine during the trial. It is not necessary to examine all the witnesses named in the complaint, but, complainant can examine some of the witnesses and give-up rest of the witnesses at his risk. In this particular case, the order sheet of the trial Court does not disclose whether the complainant has stated anything before the learned Magistrate that he wants to give-up the other two witnesses and only propose to examine the two witnesses who have been examined before the Court and he propose to close his side for limited purpose at that stage. Further added to that, there is no material in the order sheet that the learned Magistrate has made any efforts to ask the complainant, whether he proposed to examine the remaining two witnesses or not. Even though this is not an illegality committed by the learned Magistrate, it is a procedural irregularity which is incurable because of the simple reason that once the learned Magistrate secures the presence of the witnesses and examined them by issuing process against the accused person thereafter, what remains for consideration of the learned Magistrate is that he has to furnish copies of all the statements of the witnesses to the accused and commit the case to the Court of Sessions, if it is exclusively triable by the Court of Sessions. Therefore, this irregularity committed by the learned Magistrate is curable in nature. Therefore, under the above said circumstances, without following such procedure, issuance of process under Section204 of Indian Penal Code, 1860, is bad in law. Further, added to that, if the complainant examine all his witnesses, the learned Magistrate will also get an opportunity to look into the statement of those witnesses in order to pass an appropriate order under Sections203 or 204 of Cr.P.C. Section 203 of Cr.P.C. mandates that after going through the complaint averments and also the statement of the witnesses examined on the side of the complainant, if the Magistrate is of the opinion that there is no case made out for issuance of summons to the accused persons, then at the threshold itself, the complaint can be dismissed. Therefore, in order to cure these irregularities, in my opinion, an opportunity should have been given to the complainant before issuance of the process against the accused persons. Therefore, the learned Magistrate has committed a serious error in issuing the process against the accused person under Section 204 Cr.P.C. without complying the mandatory provision under Section 202 Cr.P.C. proviso and issuing process under Section 204 of Cr.P.C. Therefore, the petition deserves to be allowed. 4. With these observations, the following order is passed:-- ORDER "Petition filed under Section 397 of Cr.P.C. is hereby allowed. Consequently, the process issued by the learned Magistrate to secure the presence of the petitioners vide order dated 14/3/2012 is hereby set aside. However, the matter stands remitted to the Court of JMFC, Hubli, to comply with the provision under Section 202 of Cr.P.C. strictly and if the learned Magistrate comes to the conclusion that after going thorough the statements of witnesses and complaint averments, that a case is made out for comical, then only he has to issue process to the accused persons."