Babaji Charan Das and Another vs Pravakar Sal 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 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.

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 in 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 that 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 interest of justice. Where a Statute bars exercise of revisional power at interlocutory stage, I am not convinced how inherent power is to be exercised specially when Petitioners are not prejudiced in any manner. Exercise of inherent power is wide in its terms, Wider the power, greater 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 Petitioners 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 that the complainant is the best Judge of his interest. In his interest complainant examined himself on oath 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 fit to postpone the issue of process against the accused and to enquire into the case himself. If these 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 that the witnesses have no locus standi at that stage to appear and file such a petition. Where a, 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 Kalicharan Paikaray and Another Vs. Benga Bewa and Others, it was observed that the prescribed authority may be satisfied Suo moto having himself coming across preceding decision or being apprised of it by an aggrieved party of other person. Though observed with reference to the exercise of Suo moto power of reference u/s 59(2) of the Orissa land Reforms Act, the observation has full application in 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.

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 revisional power or inherent power to set aside the order for the reasons stated earlier. Application is accordingly dismissed.