Babaji Charan Das and Another vs Pravakar Bal and Others

S.C. Mohapatra, J.—In this revision application the short question involved is:

Whether any person can approach the Court to be examined in an enquiry u/s 202, Code of Criminal Procedure to be examined for the purpose of inquiry process against the accused ?

Section 202 (2) which is material for the case reads as follows:

(2) In an inquiry under Sub-section (1), the Magistrate may if he thinks fit, take evidence of witnesses on oath;

Provided tbat 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 witness and examine them on oath.

The short facts giving rise to this question arose in a complaint case where the two Petitioners named in the complaint petition made an application to the Court making enquiry before issue of processes to be examined hi exercise of the power u/s 311, Code of Criminal Procedure

Refusal to examine the persons applying as witnesses is not final since a Magistrate has power to summon any person as a witness at any stage of an enquiry as envisaged u/s 311. Code of Criminal Procedure Accordingly the order of refusal is interlocutory and no revision lies against such order.

Mr. G.N. Mohapatra, learned Counsel for the Petitioner submitted tbat he has prayed for invoking the inherent power of the Court u/s 482. Code of Criminal Procedure also. This Section gives inherent power to this Court which is in the interest of justice. Where a Statute bars exercise of revisional power at interlocutory stage, I am not convinced how inherent power is to be exercisied specially when Petitioners are not prejudiced in any manner.

Exercise of inherent power is wide in its terms. Wider the power gather should be the restraint to exercise the same. In that view of the matter also I am not inclined to exercise the inherent power. There is no personal interest of the Petitioners which is affected by the order Mr. Mohapatra submitted that offence being wrong to the Society itself they ought to have been examined to bring the real offenders for trial since it is clear from the complaint petition that they are witnesses to the occurrence. By the impugned order, power of learned Magistrate is not exhausted to examine the Petitioner as witnesses. Accordingly, I need not examine at this stage whether the Petitioners ought to be examined in the enquiry.

Mr. Mohapatra however, is justified in commenting upon the various grounds in the order for rejecting the same. Learned, Magistrate is not correct in his finding tbat the complainant is the best Judge of his interest. In his interest complainant examined himself on 13th u/s 200, Code of Criminal Procedure. He neither brought the witnesses, to be present for examination nor prayed for adjourning the case to examine the other witnesses named in the complaint petition. Learned Magistrate was not satisfied that the same should be dismissed. Learned Magistrate thought fie to postpone the issue of process against the accused and to enquire into the case himself, If this two witnesses would have been present on the day the complainant was examined, learned Magistrate could not have refused to examine them u/s 200. Code of Criminal Procedure. Normally a Complainant produces the witnesses. A Magistrate, however, is not powerless to summon any person to be a witness in an enquiry. That is in short, the general power given to a Magistrate u/s 311, Code of Criminal Procedure Rejection of the petition on the ground that the complainant is the best Judge of his case is not a correct approach always.

The next ground for rejection is tbat the witnesses have no locus standi at that stage to appear and file such a petition. Where an authority has power to act suo motu, any person can file an application invoking such power. In a Division Bench decision of this Court reported in Kalicharaty Paikaray v. Benga Bewa it was observed that the prescribed authority may be satisfied sou motu having himself coming across proceeding decision or being apprised of it by an aggrieved party or other person. (Emphasis supplied). Though observed with reference to the exercise of sou motu power of,reference u/s 59 (2) of the Orissa Land Reforms Act, the observation has full application ill this case also. Petitioners did nothing more than invoking the general power of the learned Magistrate u/s 311, Code of Criminal Procedure. There is no question of locus standi in such a case. Learned Magistrate however, can correct that before the enquiry commenced without knowing what the learned Magistrate would do there was no necessity of filing of such petition at that stage.

S. Petitioners were appearing in the Court of their own. Accordingly, their appearance through a lawyer to move the petition did not,require consent of the lawyer for the complainant. In this respect also learned Magistrate is not correct in his approach.

Be that as it may as stated earlier. I am not inclined to exercise either the rivisional power or inherent power to set aside the order or the reasons stated earlier. Application is accordingly dismissed Revision dismissed.