Dr. Virendra Maheshwari vs State of M.P. and Another

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. being aggrieved with the order passed in Criminal Revision No. 193/2011 on 31.10.2011 by 6th Additional Sessions Judge, Gwalior, whereby the order passed by the JMFC, Gwalior in Criminal Case No. 9789/2006 (Pratibha Mishra Vs. Virendra Maheshwari) on 05.04.2011 has been set aside. The brief facts of the petition are that respondent No. 2 Smt. Pratibha Mishra has lodged a report at Police Station Padav, Gwalior to the effect that the petitioner alongwith 5-6 unknown persons came to her house and pelted stone in her house, as a result of which she has received injuries. On the basis of this Crime No. 32/2004 for the offence punishable under Sections 147, 336 and 506-II has been registered. However, in the investigation it was found that false report has been lodged because complainant is having enmity with the petitioner, thereafter respondent No. 2/complainant has filed a private complaint in the Court of ACJM, Gwalior. Learned Magistrate after recording evidence u/s 200 of Cr.P.C. has taken cognizance u/s 325 of IPC., against the petitioner and Anoop Maheshwari and they were summoned through bailable warrant of Rs. 200/-. After their appearance case was fixed for recording of evidence before charge and on 21.04.2011 respondent/complainant after examining Mukesh closed her evidence and the case was fixed for arguments on charge. Thereafter charge u/s 323 of IPC has been framed against the petitioner. Subsequently, an application was filed on behalf of the respondent/complainant to summon the witnesses namely Dr. V.S. Tomar, Dr. S.P. Gupta, Dr. Rakesh Mangal and Harishanker submitting that on the report of the respondent/complainant a Crime No. 22/2004 was registered at Police Station Padav and the respondent/complainant sent for medical examination. This application was opposed by the petitioner. Learned Magistrate held that the application is not maintainable, against which Criminal Revision No. 193/2011 has been preferred by the respondent/complainant before the 6th Additional Sessions Judge, Gwalior, the same has been allowed vide order dated 31.10.2011. Being aggrieved of the same, this petition has been preferred.

Learned counsel for the petitioner submits that the impugned order passed by the learned 6th ASJ, Gwalior is illegal and is liable to be set aside. The respondent/complainant on her own has closed the evidence before the charge, in such circumstance, further evidence cannot be recorded. It is further submitted that some of the witnesses are not even cited as witness in the list of witnesses. Hence, those witnesses cannot be examined after framing of the charge. The complaint was registered under Sections, 325, 147, 506-B of IPC. However, after recording the evidence before the charge only charge u/s 323 of IPC has been framed, therefore, it should be deemed that the petitioner has been discharged from the offence punishable u/s 325 of IPC. It is prayed that the impugned order be quashed.

Learned counsel for respondent No. 2 has supported the order passed by the learned 6th ASJ, Gwalior and submits that the learned Court below has committed illegality, impropriety and irregularity in passing the impugned order.

I have considered the rival submissions of the parties and perused the record.

From perusal of the complaint, it appears that respondent No. 2/complainant has filed the private complaint under Sections 325, 147, 148, 149 & 452 of IPC. Learned Court below has registered the said complaint after examining the witnesses u/s 200 of Cr.P.C. for the offence punishable u/s 325 of IPC vide order dated 27.06.2005. After appearance of the petitioner, case was fixed for evidence before charge.

From perusal of the certified copy of the order sheet dated 24.01.2011 it appears that the complainant has examined witness Mukesh and submits that the complainant does not want to produce any other witness and closed her evidence before charge. Then case was fixed for arguments on charge on 07.02.2011. Charge u/s. 323 of IPC has been framed and the case was fixed for evidence after charge. Subsequently, the application has been submitted on behalf of the complainant for summoning Dr. V.S. Tomar, Dr. S.P. Gupta, Dr. Rakesh Mangal and Harishanker to give evidence before charge.

Learned Magistrate has rejected the prayer holding that once evidence before charge has been closed and the case is fixed for evidence after charge then application is not maintainable. This order has been challenged by the respondent/complainant before 6th ASJ, Gwalior. The 6th ASJ, Gwalior vide order dated 31.10.2011 passed in Criminal Revision No. 193/2011 has set aside the order dated 05.04.2011 passed by the learned Magistrate.

It appears from the application submitted on 15.03.2011 by the respondent No. 2/complainant that nowhere it is mentioned that respondent No. 2/complainant wants to examine Dr. V.S. Tomar, Dr. S.P. Gupta, Dr. Rakesh Mangal and Harishanker, in evidence before the charge.

The procedure for trial of warrant case instituted otherwise, than on a police report, is prescribed u/s 244 to 248 of the Cr.P.C..

Section 246 reads as under:-

Procedure where accused is not discharged.-

(1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

(3) If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead, or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross examine any, and, if so, which, of the witnesses for the prosecutions whose evidence has been taken.

(5) If he say he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.

(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross examination and re-examination (if any), they shall also be discharged.

Thus, the provision of 246(6) of Cr.P.C. makes it clear that after framing of charge the evidence of remaining witnesses shall can be taken.

In the instant case, after recording the evidence before charge, charge has been framed after following procedure provided u/s 246(4) of Cr.P.C.

From the perusal of the application filed on behalf of the respondent/complainant on 15.03.2011, it appears that nowhere it is mentioned that she wants to examine the witnesses in evidence before charge. The filing of the application after closing the evidence before charge and after framing of the charge itself shows that prayer is not for summoning the witnesses in "evidence before charge stage" but it is for "after charge stage".

From perusal of the list of witnesses it appears that names of Dr. V.S. Tomar, Radiologist of J.A. Group of Hospital and Head Constable Harishanker find place, therefore, u/s 246(6) the respondent/complainant is entitled to summon these witnesses.

Learned counsel for the petitioner has cited the judgment rendered in Ajoy Kumar Ghose Vs. State of Jharkhand and Another, . The facts of this case are distinguishable from the instant case.

Taking into consideration that the application filed by the respondent/complainant nowhere it is prayed that complainant want to summon witnesses before charge stage and the fact that there is provision u/s 246(6) of Cr.P.C. for examination of the remaining witnesses, therefore, learned 6th ASJ, Gwalior has not committed any illegality or impropriety in passing the impugned order dated 31.10.2011 in Criminal Case No. 193/2011.

Petition is devoid of any merits and is liable to be set aside. Consequently, petition is dismissed.