Gurdeep Singh vs Har Bhajan Singh and Another

M. Wahajuddin, J.—The complainant has come forward with an application u/s 482, Code of Criminal Procedure, praying that the learned Sessions Judge, Pilibhit, be ordered to examine the witnesses mentioned in application 16-Kha, preferred there, or in the alternative the proceedings in the Sessions Trial No. 260 of 1980, State v. Har Bhajan Singh, Sessions Trial No. 260 of 1980be quashed with a direction to the Magistrate that the Magistrate may examine all the witnesses, which the complainant desires to produce before issuing any process.

It would appear that the applicant filed a complaint against the opposite party No. 1 on 24-1-1979. His statement u/s 200, Code of Criminal Procedure, was recorded and statements of some other witnesses u/s 202, Code of Criminal Procedure, was also recorded and 2-2-1979 was fixed for rest of the prosecution evidence. The case was adjourned to 5-2-1979 and again was adjourned to 17-2-1979, as the Presiding Officer was on leave. This will be borne out by the averments in the application supported by an affidavit as well as by the order-sheet filed by the Respondent. It would also appear that an application dated 7-2-1979 of the complainant for summoning the case diary containing the original post mortem report and injury report was allowed and 21-2-1979 was fixed. There were two more adjournments, as the case diary was not received inspite of summons. On the second adjourned date, i. e., 20-3-1979 an application was preferred on behalf of the complainant for dispensing with his personal attendance, which prayer was allowed, but the Magistrate at the same time fixed 7-4-1979 for arguments.

The submission on behalf of the applicant is that this the Magistrate could not do. I may also observe that so for as the position evolving out upto the aforesaid date is concerned, the ordersheet also bears out that position. It would appear that the Magistrate''s order for summoning the case diary containing the post mortem report and the injury report was intact. Rather on all the previous dates the case was adjourned for that purpose. If the case diary was not produced, the complainant is in no way to be blamed. It may also be observed that the earlier list of witnesses of complainant had also not been exhausted. In fact, some witnesses were earlier summoned and did not appear or could not be served. Thereafter the matter remained unattended. So the position that evolves out upto the stage of the order fixing 7-4-79 is that the complainant had at no stage given up the witnesses, which the complainant had earlier summoned, nor the prayer for summoning the case diary was given up. When that was the position, the Magistrate was not justified to, by implication, close the evidence in the aforesaid manner and fix 7-4-1979 for arguments.

In fact, the averment in paragraph 7 of the application, supported by the affidavit, also is that before the order for summoning the accused by warrants was passed on 12-4-1979 by the Magistrate, a list of some more witnesses was also furnished on that very date. Regarding this aspect, while there is no averment in the counter-affidavit denying it, the Respondent''s Counsel relied upon the order sheet of that date, in which any mention of any such application was not made. The learned Counsel for the Respondent No. 1 has also relied upon on search application and reply thereto indicating that as per reply given to the question by way of search application, it was stated that any application for summons of any witness is not on the file and was not preferred. As some dispute is raised regarding the averments concerning 12-4-1979, I may approach the matter independently of the implications of any such application, if at all given. I am of the view that the evidence was closed by the Magistrate when he passed order for hearing arguments on 7-4-1979, and it has to be considered whether this order is legal and can be upheld or not.

The learned Counsel for the Respondent has vehemently argued that the entire conduct of the complainant has to be seen and it may indicate that the complainant by necessary implication did not desire to produce any more evidence. I am unable to agree with such submissions. It is noteworthy that on two previous dates the case was adjourned awaiting the case diary and an express prayer was also made that the case diary containing the original post mortem report and the injury report may be summoned. This itself would indicate the complainant''s desire to use the same in evidence. In addition to that, when the prayer for dispensing with the attendance of the complainant was made on the ground of his being out station, there was no prayer or statement, express or by implication, that some of the witnesses, who were summoned earlier, are discharged and they are being given up. When that appears to be the factual position, I feel that the principles laid down in the case Dinesh Chand Sinha v. Rahmatuallah, 1981 A CrR 132would be fully applicable. The law is very clear that in a complaint case every witness, upon which the complainant relies or who are desired to be produced, must be examined u/s 202, Code of Criminal Procedure. The law is also well settled that only such witnesses, who are examined before the Magistrate, can be produced in the sessions court and no additional evidence can be given there. When that is the position, a strict compliance of the provisions of Section 202(2), Code of Criminal Procedure, becomes requisite. In fact, the very prosecution would be frustrated if the provisions are not strictly followed and the complainant is deprived of the opportunity to exhaust all evidence which he is to lead in support of the complaint. The following observations made in the case of Dinesh Chand (Supra) have vide implication and may be quoted:-

He can summon the accused even after some of the witnesses cited in the complaint have been examined by the complainant but this he can do only in the event when the complainant makes it clear that the witnesses examined by him were the only witnesses on whom he intended to rely upon. If the names of some persons to be examined as witnesses are not specifically mentioned in the complaint the Magistrate will call upon the complainant to disclose their names and examine them also if he so wished or give them up if he does not want to examine them.... Therefore, as things stand, it is now clear that 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.

It was argued that the complainant cannot be compelled to produce witnesses, whom he may not desire to produce. That submission would not admit of any dispute, nor is disputed, but such arguments are fully met by the further observations made in the case of Dinesh Chand (supra). In the present case, the complainant did not discharge those witnesses who were earlier summoned, but did not turn up. The complainant also did not give up his prayer for case diary. The object was also disclosed. When that is the position, it cannot be urged that the complainant did not want to produce more witnesses.

A failure of justice would result, if inherent powers are not exercised in this case. In fact, the very process of law would be defeated, if the evidence is closed in this manner. When that is the position and any additional witness cannot be examined in the sessions trial, the only course open is to quash the proceedings in Sessions Trial No. 260 of 1980, State v. Har Bhajan Singh, Sessions Trial No. 260 of 1980under Sections 302/307, Indian Penal Code , as well as the order dated 12-4-1979 of the Magistrate summoning the accused persons and also the order dated 20-11-80 of the Magistrate committing the accused persons to the court of sessions, with a direction that the Magistrate may exhaust all the witnesses, which are desired to be produced and are produced by the complainant, and may also take a statement from the complainant that no more witnesses are to be produced and only then proceed further in the matter from that stage.

It is submitted that the principles laid down in the case of Dinesh Chand (supra) cannot be applied to any case where the accused person has not come forward before the court. I am unable to agree with such submissions. If any order is bad and illegal or is vitiated, it will remin so irrespective of the consideration as to which party moved the court u/s 482, Code of Criminal Procedure. The powers u/s 482, Code of Criminal Procedure are to be exercised to undo any abuse of the process of law or any frustration of justice and when the matter has come before the Court it can exercise such powers irrespective of the consideration as to which of the party has come before it. I may also observe that in case of Ram Adhar and Another Vs. State and Another, the commitment had taken place and sessions trial was pending and evidence was being recorded and yet the commitment was quashed and the matter was sent back to the Magistrate for taking additional evidence. True that in that case it was the accused who had come forward with a prayer that additional evidence in the sessions court may not be allowed, but whatever the court considered just not directed exercising its inherent powers.

The application u/s 482, Code of Criminal Procedure, is allowed. The proceedings in Sessions Trial No. 260 of 1980 of district Pilibhit under Sections 302 & 307, Indian Penal Code , as well as the order dated 12-4-79 and the commitment order of the Magistrate dated 20-11-80 and his earlier order closing the evidence and fixing the date for argument and his further order summoning the accused are all quahsed and the Magistrate is directed to proceed with the matter in accordance with the direction contained in the body of the judgment in accordance with law.