Bhagwan and Others vs Kishan Singh

R.P. Shukla, J.—Bhagwan and 15 others have moved this application u/s 482, Code of Criminal Procedure praying to quash proceedings in Criminal Case No. 207 of 1980; Kishan Singh v. Bhagwan and Ors. u/s 395 IPC, police station Achenera, Agra, pending in the court of Sri Brij Raj Singh, Munsif Magistrate, Agra.

The brief facts of the case are that Kishan Singh, opposite party, filed a complaint against the sixteen applicants under Sections 395/397, IPC in the court of Judicial Magistrate First Class, Agra. In paragraph 4 of the complaint, he has named Roshan Singh, Pooran, Babu, Khemu, Ramesh and others as the witnesses of the occurrence.

The Magistrate examined Kishan Singh u/s 200, Code of Criminal Procedure and Rejendra Kumar u/s 202, Code of Criminal Procedure and passed an order on 13-10-1980 summoning the applicants u/s 395, IPC, after considering the above mentioned statements under Sections 200 and 202, Code of Criminal Procedure. Offence u/s 395 IPC, is exclusively triable by the court of session and hence proviso to Sub-clause (2) of Section 202, Code of Criminal Procedure shall apply which reads as under:

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.

In the instant case, the Magistrate has ignored this mandatory provision of the Code of Criminal Procedure. In view of this proviso to Sub-section (2) of Section 202, Code of Criminal Procedure the Magistrate is bound to call upon the complainant to produce all his witnesses. The order summoning the accused in such a case without examining all the witnesses of the complainant shall be illegal. This proviso has been made keeping in view the provisions contained in Section 208 Code of Criminal Procedure. u/s 208, Code of Criminal Procedure, the Magistrate has to furnish to the accused free of cost copies of the statements recorded u/s 200 and Section 202, Code of Criminal Procedure of ail the persons examined by the Magistrate without delay and if the Magistrate does not call upon the complainant to produce all his witnesses at this stage, be shall not be able to furnish copies, the receipt of which is the valuable right of the accused. The Magistrate can certainly summon the accused even after examining some of the witnesses mentioned in the complaint but the complainant has to make it clear that the witnesses examined on his behalf were the only witnesses on whom he intended to rely upon. If the complainant does not make this position clear, then it is not open to the Magistrate to summon the accused without examining all the witnesses either mentioned in the complaint or in the list accompanying the complaint. This view has been expressed in number of cases in this Court and has now become almost settled law on the point.

In view of the above discussion, the order of the Magistrate summoning the accused is bad in law and, therefore, must be quashed.

In the result, the application u/s 482, Code of Criminal Procedure is allowed. The order of the Magistrate, dated 13-10-1980 is hereby quashed. The Magistrate is directed to proceed with the case in the light of the observations made above.