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Allahabad High Court · body

2015 DIGILAW 357 (ALL)

KASHI NATH RAI v. STATE OF U. P.

2015-02-24

KARUNA NAND BAJPAYEE

body2015
JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—This application under Section 482 Cr.P.C. has been filed for quashing the impugned orders dated 6.8.2014 as well as 10.11.2014 passed by Chief Judicial Magistrate in Criminal Complaint Case No. 26503 of 2006(Kashi Nath Rai v. Vashishth Rai and others) under Sections 302, 328, 392, 201, 119, 167, 364, 197, 504, 506 and 120-B IPC P.S. Harbansh Mohal District Kanpur Nagar. 2. Heard applicant’s counsel as well as learned AGA. Entire record has been perused. It transpires from the record that the applicant is the complainant of the case and the complaint relates to the offence triable by the Court of Sessions. It appears that several names were given in the list of the witnesses by the complainant but later on it was decided by the complainant not to examine all of them and it was thought fit that only some of the witnesses are need to be examined and rest of them are to be given up. As the statute of Code of Criminal Procedure required the examination of all the witnesses given in the list in the cases which are triable exclusively by the Court of Sessions, therefore, the Court below insisted on the examination of all the witnesses and passed the impugned order to the same effect. 3. The submission of the counsel is that though in the ordinary course all the witnesses of the list should be examined but if the complainant himself does not desire to produce certain witnesses, then the Magistrate can also validly proceeded to decide on the point of summoning of the accused on the basis of the evidence produced on behalf of the complainant and if he deems it fit to summon the accused on the strength of the witnesses examined by the complainant in the Court then there is nothing illegal about it. The counsel has drawn the attention of the Court to the language of Section 202(2) Cr.P.C. and its proviso which reads as follows: 202. Postponement of issue of process.—(1)....................... (a) ............................................. (b) ............................................. 2. In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness 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. .............................. 2. In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness 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. .............................. 4. The submission is that the word used in the proviso of Section 202(2) Cr.P.C. is that the Court shall call upon the complainant to produce all ‘his’ witnesses. It has been emphasized by the counsel that the use of the word ‘ his’ is a qualifying expression and the same implies that only those witnesses shall be required by the Court to be produced whom the complainant desires to produce. In this regard reliance has been placed on Apex Court decision given in the case of ShivJee Singh v. Nagendra Tiwary and others, (2010)7 SCC 578 , in which the Hon’ble Supreme Court took the same view. 5. I have considered the submissions made by the counsel and have perused the impugned order in the light of same. The facts of the present case appear to be slightly on a different footing. The case relied upon by the counsel reveals that the controversy involved in the matter was that if the Magistrate proceeds to summon the accused without examining all the witnesses as per given in the list, shall the summoning be bad in the eyes of law ! Or in other words shall the summoning based on such incomplete examination of the witnesses be held to be invalid?. It was held by the Apex Court that if the Magistrate has summoned the accused even though all the witnesses were not examined, then it shall not vitiate the summoning order. But here the controversy is some what different. The complainant does not desire to examine all his witnesses but the Court is insisting upon the examination. In fact for the purpose of having the satisfaction whether the accused should be summoned or not under Section 204 Cr.P.C. the Magistrate enquires the matter under Section 202 Cr.P.C. and that enquiry is for the purpose of looking into the sufficiency of evidence for the purpose of summoning the accused to face the trial. This enquiry cannot be limited to certain class of witnesses only. This enquiry cannot be limited to certain class of witnesses only. If the Magistrate himself desires to examine some witnesses on its own then the complainant cannot stop him to examine them. Normally the examination of the witnesses depend upon the desire or will of the complainant and only those witnesses are examined whom the complainant wishes to produce in support of his allegations. But that does not imply that the jurisdiction of the Magistrate to examine any other witness whom he desires to examine under Section 202 Cr.P.C. stands ousted. The enquiry under Section 202 of Cr.P.C. gives the Magistrate discretion to examine any witnesses whom he may like for the purpose of satisfying himself whether there exist sufficient grounds to proceed against the accused. In the present matter the complainant does not desire to examine all the witnesses given in the list. If the Magistrate deems it fit and if in the opinion of the Magistrate, on the basis of the examination of the witnesses already done, there is sufficient material to summon the accused, he can very well do so in the light of the Apex Court’s judgment and the interpretation given in this regard. It can also be said that if the Magistrate’s insistence to examine all the witnesses is only for the reason because he thinks that if the accused is summoned without examination of all the witnesses given in the list, the summoning of the accused shall be bad in the eyes of law, then the Magistrate’s view is wrong and untenable. It is very much open for him to proceed to decide on the point of the summoning of accused on the basis of the material already produced on behalf of the complainant and the witness whom the complainant has already examined. But if in order to satisfy itself on the point of the appropriateness of summoning, the opinion of the Magistrate is such that the material is incomplete and it is very necessary or essential to examine any particular witness or witnesses other than the witnesses already examined by the complainant he can very well proceed to do so. Apart from the discretion vested in the Court under Section 202 of Cr.P.C. in this regard, it may also be apt to refer to the provision of Sec. 311 Cr.P.C. which reads as follows: 311. Apart from the discretion vested in the Court under Section 202 of Cr.P.C. in this regard, it may also be apt to refer to the provision of Sec. 311 Cr.P.C. which reads as follows: 311. Power to summon material witness,or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness,or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 6. It is apparent from the plain reading of the statute that at any stage of enquiry or trial or other proceedings in the Court, any person may be summoned as a witness and be examined by the Court in its own discretion also. In fact the summoning of any such witness is mandatory if in the opinion of the Court his evidence appears to be essential to the just decision of the case. The use of word”shall” emphasizes upon this aspect of the matter. The powers which the Court wields under Section 311 Cr.P.C. are independent powers of the Court which may be exercised in any enquiry or trial or proceedings before it and can be used or utilized regardless of the choice or the discretion of the complainant with regard to the examination of witnesses of his choice under Section 202(2) Cr.P.C. It may be primarily the discretion of the complainant to produce all his witnesses or the witnesses of his choice but this discretion of the complainant cannot exclude or denude the Court from the power and discretion which has been vested in it by virtue of Section 311 Cr.P.C. The proviso of Section 202(2) and Section 311 of Code are not mutually exclusive provisions. In fact the inherent power of the Court vested in it by virtue of Section 311 shall always have an overriding effect and will operate independently unaffected by the discretion of the complainant or prosecution to produce the witnesses of their choice. 7. In fact the inherent power of the Court vested in it by virtue of Section 311 shall always have an overriding effect and will operate independently unaffected by the discretion of the complainant or prosecution to produce the witnesses of their choice. 7. In view of the aforesaid discussion it may be summarized that it is entirely the discretion of the Magistrate to look into the matter and the facts and circumstances of a particular case and then decide about the appropriateness and desirability of requiring the complainant side to produce any particular witnesses or witnesses. If any person named in the list whom the complainant is not interested to produce is needed to be summoned by the Court, it should not be because it is incumbent in law upon the complainant to produce all the witnesses given in the list, but because the examination of such a witness is thought necessary and essential to arrive at a just decision in the matter. Such a witness may be summoned only if the Court deems it fit to exercise the powers vested in it under Section 311 Cr.P.C. or in exercise of its independent powers of enquiry under Section 202 Cr.P.C. If in the exercise of its powers to summon any person under Section 311 of Cr.P.C. the Court on its own does not find it necessary or essential to examine any particular witness or witnesses of the list, other than those whom the complainant has desired to produce, he can very well proceed to pass orders on the point of summoning of the accused on the strength of the evidence or material already on record which the complainant has chosen to produce. There shall be no illegality in adopting such a course. The petition is disposed of with aforesaid observations and the Court below may proceed in the light of the same. ——————