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2018 DIGILAW 323 (BOM)

Kayyum Khan v. State of Maharashtra

2018-02-02

S.B.SHUKRE

body2018
JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent. 2. This petition challenges two orders, one is passed by the Judicial Magistrate First Class, Court No.8, Akola in R.C.C. No.178/2014 on 09/05/2014 and the other is passed by the Additional Sessions Judge, Akola in Criminal Revision No.121/2014 confirming the first order passed by the Judicial Magistrate First Class, Akola. 3. Respondent no.2 filed a criminal complaint against the petitioners being R.C.C. No.178/2014 before the Court of Judicial Magistrate First Class. It was alleged by respondent no.2 that at about 10:15 p.m. on 03/02/2014, the petitioners formed an unlawful assembly and armed with dangerous weapons stormed into the house of respondent no.2-complainant and committed various acts including causing of hurt by dangerous weapons, house trespass, criminal intimidation, forcibly taking away Rs.5,000/- and gold chain and also insult with a view to provoke the breach of peace. A complaint was filed along with list of witnesses. The learned Magistrate examined respondent no.2, the complainant only and came to the conclusion that prima facie the offences punishable under Sections 323, 504, 506, 452 and 394 read with Section 149 of the Indian Penal Code were made out and accordingly issued summons against the petitioners by his order passed on 09/05/2014. This order was challenged by the petitioners in Criminal Revision No.121/2014 filed before the Additional Sessions Judge, Akola. It was, however, dismissed on merits by the learned Additional Sessions Judge, Akola by the order passed on 22/07/2016. 4. According to the learned Counsel for the petitioners, mandate of the proviso to sub-section 2 of Section 202 of the Code of Criminal Procedure (for short 'Cr.P.C.') has not been followed by the Courts below and it has resulted in causing prejudice to the rights of the petitioners conferred upon them in law. The learned Counsel for respondent no.2 does not dispute the fact that the process was issued only upon examining respondent no.2 and that it was issued for the offences, one of which was exclusively triable by the Sessions Court, and submits that as the law has given choice to the complainant to examine all or some of the witnesses contained in the list of witnesses, and this choice having been properly exercised by respondent no.2, it could not be said that the impugned orders are illegal and arbitrary. The learned A.P.P. submits that an appropriate order be passed in the matter. 5. I must say at the outset that there cannot be any doubt about the mandatory nature of the proviso to Section 202(2) of Cr.P.C., which is seen from the use of word “shall” in it, the object that it seeks to achieve and the principle that is embedded in it, about which I will open my mind in later part of this judgment. It lays down that in an enquiry under Section 202(1) of Cr.P.C., if it appears to the Magistrate that the offence complained of is exclusively triable by the Court of Sessions, the Magistrate “shall” call upon the complainant to produce all his witnesses and examine them on oath. This is also the view taken by the learned Single Judge of this Court in the case of Ulhasabai Baburao Jounjal & ors. vs. State of Maharashtra & ors. reported in 2007 ALL.M.R. (Cri) 400. 6. In the present case, the respondents alleged commission of offences punishable under Sections 323, 324, 294, 504, 506, 452 and 395 read with Section 34 of the Indian Penal Code by the petitioners. Offence punishable under Section 395 of the Indian Penal Code was exclusively triable by the Sessions Court. Therefore, Section 202(2) of Cr.P.C. came into picture in the present case and it's mandate was required to be followed by the learned Magistrate. However, the learned Magistrate only upon examining the complainant and without examining the other witnesses, whose names appeared in the list of witnesses given below the last page of the complaint, proceeded to issue process for the offences punishable under Sections 323, 504, 506, 452 and 395 read with Section 149 of the Indian Penal Code against the petitioners by the order passed on 09/05/2014. 7. The order of issuance of process passed by the learned Magistrate was carried in criminal revision before the Court of Additional Sessions Judge, Akola, who, by the judgment and order passed on 22/07/2016, dismissed the challenge holding that although it was mandatory for the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath, the Magistrate could not compel the complainant to produce a particular witness. The learned Additional Sessions Judge went on to interpret expression “all his witnesses” appearing in the proviso to sub-section (2) of Section 202 of Cr.P.C. in his own way. He took a view that it meant only those witnesses, which the complainant chose to examine. Thus, by necessary implication, he held that if the complainant chose not to examine the other witnesses, it did not matter even in a case complaining of an offence exclusively triable by Sessions Court and process could still be issued, despite complainant not examining all his witnesses, as after all it was a matter of choice for him. 8. While there cannot be any doubt about the opinion expressed by the learned Additional Sessions Judge that the complainant cannot be compelled to examine all the witnesses, whose names are given by him in the list of witnesses, the other view that in a case where the complainant chooses to examine only few of the witnesses and not all, and it involves allegation of commission of an offence exclusively triable by Sessions Court, the non-examination of all witnesses would not adversely affect the discretion to be exercised by the learned Magistrate regarding issuance of process is completely against the mandate of proviso to Section 202(2) and also Section 204 of Cr.P.C. 9. Section 204 of Cr.P.C. states that process can be issued only when the Magistrate taking cognizance of an offence is of the opinion that there are sufficient grounds for proceeding further in the matter. I do not understand as to how such satisfaction can be arrived at by the Magistrate when the complainant at his or her sweet will withholds some of the witnesses from the Court, though in law, he is obliged to examine them on oath. If the complainant chooses to not examine all the witnesses, whose names are mentioned by him or her in the list of witnesses, he or she does so at his or her own peril. The failure of the complainant to drop some of the witnesses from out of the list of witnesses from the process of examining them on oath before the Court would necessarily result in adverse drawing of an inference against the complainant. The failure of the complainant to drop some of the witnesses from out of the list of witnesses from the process of examining them on oath before the Court would necessarily result in adverse drawing of an inference against the complainant. The adverse inference would be that there are no sufficient grounds shown by the complainant for proceeding further in such a matter or otherwise, he would have examined all his witnesses, as required by law or to be precise proviso to Section 202(2) of Cr.P.C. Inevitably, in such an eventuality, no process can be issued and proper order would have to be passed by the learned Magistrate. 10. Proviso to sub-section (2) of Section 202 of Cr.P.C. has two fold object. It is to prevent frivolity in making allegations of commission of serious offences on the one hand and maintaining sanity of law in committing exclusively sessions triable cases by a Magistrate to a Session Court, on the other. If such twin safeguards are thrown to winds, it would be easy for the mischief mongers to settle their scores against those with whom they have some differences or civil dispute and they would succeed in doing so, even on unfounded or mischievous or frivolous allegations. After all, sessions triable cases involve serious offences and the principle of law is; graver the charge, graver is the responsibility to lay before the Court all that within the power and knowledge of the complainant, so that the Court can take an impassionate decision on the question of issuance of process. Proviso to sub-section (2) of Section 202 of Cr.P.C. is founded on this principle and serves the twin objects, just spoken about. If procedure prescribed in this provision of law is allowed to be by-passed on the spacious ground of will and choice of a complainant, the very object of this provision would be defeated and it's underlying principle will lose the respect it deserves in law. This is the reason, why this provision of law has mandatory effect necessitating it's compliance without any exception. This is what the effect of proviso to Section 202(2) is and if it is not translated into action, no order of issuance of process under Section 204 of Cr.P.C. can be passed. This is the reason, why this provision of law has mandatory effect necessitating it's compliance without any exception. This is what the effect of proviso to Section 202(2) is and if it is not translated into action, no order of issuance of process under Section 204 of Cr.P.C. can be passed. All this, however, has gone un-comprehended by the Courts below and the result is of causing of great prejudice to the rights of the petitioners. Therefore, both the impugned orders cannot be sustained in the eye of law. 11. At this stage, the learned Counsel for respondent no.2- complainant submits that the respondent is willing to examine all the remaining witnesses mentioned in the list of witnesses. This would then call for remanding of the matter back to the Court of concerned Judicial Magistrate First Class. In the result, the following order is passed : I. The writ petition is allowed. II. The impugned orders are quashed and set aside. III. The complaint is remanded to the Court of Judicial Magistrate First Class, Akola for consideration afresh in accordance with law. IV. In the light of the observations made here-in-above, rule is made absolute in those terms.