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2015 DIGILAW 611 (MP)

ANIL MALOO v. NITIN KASERA

2015-06-15

ALOK VERMA

body2015
JUDGMENT : 1. This order shall govern disposal of application filed by the applicants under section 482 of Criminal Procedure Code which is directed against the order passed by learned JMFC, Ujjain in Criminal Complaint Case No. 1213/2010 dated 6-8-2014 whereby, learned Magistrate allowed the application filed by the complainant dated 5-5-2014 and ordered to summon some witnesses. 2. Brief facts relevant for disposal of this application are that a private complaint was filed by the respondent against the applicants under section 420 read with section 120-B of Indian Penal Code along with list of witnesses. After recording the evidence before charge, learned Magistrate discharged some of the accused however, he proceeded against the present applicants and framed charge under section 420 of Indian Penal Code. After framing of the charges, the complainant/respondent was further cross examined and after his cross examination was over, the application was filed on 5-5-2014 requesting learned lower court to issue summons to the officer of Makhanlal Chaturvedi University and also from State Bank to produce the documents. Learned Magistrate by the impugned order dated 6-8-2014 allowed the application and ordered that on deposition of Rs. 1000/- each towards diet money of the witnesses, summons may be issued. 3. Aggrieved by this order, present application is filed on the ground that under the scheme of Criminal Procedure Code, the complainant was allowed to file list of witnesses under section 204(2) of Criminal Procedure Code only once and he is not allowed to file supplementary list of the witnesses under any of the provision of law. 4. In this case, the application was filed by the complainant on 17-2-2012 and along with the application he filed list of documents and copies of the documents which were allowed to be taken on record by the learned Magistrate. It is said that along with application list of the documents and copies of the documents he also filed supplementary list of the witnesses but the order-sheet dated 17-2-2012 did not mention this list which was, however, admittedly, found on the record of the lower court. Counsel for the applicants submits that present applicants had no knowledge of the list. They were taken by surprise and as such as there is no provision of supplementary list the impugned order is illegal and against the provision of law and liable to be set aside. 5. Counsel for the applicants submits that present applicants had no knowledge of the list. They were taken by surprise and as such as there is no provision of supplementary list the impugned order is illegal and against the provision of law and liable to be set aside. 5. Counsel for the respondent relies on the judgment of Hon'ble the Supreme Court in the case of Sayeeda Farhana Shamim vs. State of Bihar and anr. reported in 2008(2) Crimes 332 (SC). In this case, Hon'ble the Supreme Court held that power of the Magistrate should not be fettered either under section 244 or under sub-section (6) of section 246 of Criminal Procedure Code and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. Hon'ble the Supreme Court also observed that while accepting the supplementary list the Magistrate shall exercise its discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused. 6. In the present case, learned Magistrate allowed certain additional documents to be taken on record. It is however, argued that the supplementary list filed along with the application was not mentioned in the order-sheet of the Court and also no copy was supplied to the applications and, therefore, the order directing issuance of summons on the basis of this supplementary list is illegal and should be quashed. 7. However, applying the principle laid down by Hon'ble the Supreme Court in the case of Sayeeda Farhana Shamim (supra), it is apparent that the Magistrate has full power to take supplementary list on record and when apply to issue directions for issuance of summons against the persons whose name appear in the supplementary list. In the present case, though, it appears that copy of the list of witnesses which was filed on 17-2-2012 was not supplied to the applications however, when the respondent filed an application for issuance of summons to call the witnesses list came to the knowledge of present applicants and they had sufficient time to prepare themselves to cross examine the witnesses. The relevancy of the documents was not challenged by the present applicants. The documents were taken on record by the Magistrate. The relevancy of the documents was not challenged by the present applicants. The documents were taken on record by the Magistrate. Now only to prove such documents if certain witnesses are called by the Magistrate, there appears to be no irregularity or illegality committed by the Magistrate which may result in abuse of process of court and in such view of the matter, in the considered opinion of this Court, no case is made out for interference using power conferred to this Court under section 482 of Criminal Procedure Code. This application is devoid of force and accordingly, dismissed. C.c as per rules.