Leelawati Bai (Smt.) vs Rajendra Prasad and Others

T.P. Sharma, J.—By this petition, the petitioner has challenged legality and propriety of the order dated 18-1-1999 passed by the 4th Additional Sessions Judge, Bilaspur in Criminal Revision No. 132/98 affirming the order of dismissal of the complaint exclusively triable by the Court of Sessions dated 27-3-98 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No. 560/96.

The order is challenged on the ground that the provisions for examination of all witnesses proposed for examination in accordance with Proviso to Section 202 of the Code of Criminal Procedure, 1973 (for short ''the Code'') for the offence exclusively triable by the Court of Session is not mandatory.

I have heard learned Counsel for the parties, perused the order impugned and record of the Court below.

The present petitioner/complainant has filed a complaint for the offence punishable under Sections 306, 306 read with Section 34 and 506-B of the IPC which is exclusively triable by the Court of Session, before the Judicial Magistrate First Class, Bilaspur. After examining the complainant and two witnesses, the Judicial Magistrate First Class, Bilaspur has registered Criminal Complaint Case No. 344/94 vide the order dated 9-11-94 without examining all the witnesses which was challenged in Criminal Revision No. 225/94. The order taking cognizance was reversed in the said Criminal Revision vide order dated 12-12-1995 by the 3rd Additional Sessions Judge, Bilaspur and the case was remitted to the Court of Judicial Magistrate First Class for examining all the witnesses shown in the list of witnesses. Again the Trial Court afforded opportunity of adducing evidence to the complainant, but the complainant failed to examine all the witnesses shown in the list of witnesses whereupon vide order dated 27-3-98, the Judicial Magistrate First Class, Bilaspur has dismissed the complaint (new No. 560/96), same was affirmed in Criminal Revision No. 132/98, vide order dated 18-1-99 by the 4th Additional Sessions Judge, Bilaspur.

Learned Counsel for the petitioner submits that proviso to Sub-section (1) of Section 202 of the Code is not mandatory and the complainant is not under obligation to examine all the witnesses whose names have been shown in the list of witnesses. Only the requirement in law is that the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. Learned Counsel further submits that the witnesses examined by the complainant should be treated as the witnesses called upon by the complainant and the Court is required to take cognizance on the basis of the statements of the witnesses adduced on behalf of the complainant, but the Court below has committed illegality in dismissing thee complaint.

On the other hand, learned Counsel for the respondents submits that the complainant is under obligation to examine all the witnesses mentioned in the list of witnesses and in the present case the Court of Session has remitted back the case to the Magistrate with a direction to examine all the witnesses mentioned in the list of witnesses and pass order afresh, but the complainant has not examined all the witnesses shown in the list of witnesses, therefore, dismissal of the complaint for noncompliance of the order passed in revision and non-compliance of the mandatory provisions contained in Section 202 of the Code is just and proper and the Court below has not committed any illegality or irregularity resulted into miscarriage of justice.

The crucial question for consideration in this case is whether the Magistrate is bound to examine all the witnesses of the complainant in the complaint case relating to offence exclusively triable by the Court of Session in accordance with Proviso to Sub-section (2) of Section 202 of the Code.

In the cases of Shankar Roul Vs. Ramakanta Swain and Another, , Babu Ram and anr. v. State of Uttar Pradesh 1978 Cri.LJ 1430 (Allahabad), Gopal Singh Vs. Smt. Dhanraji Devi and Another, , Sk. Siraj Vs. State of Orissa and Others, , Satya Pal and Another Vs. State of U.P. and Another, , G. Subba Naidu and others Vs. Talluri Mahalakshmamma and another, , Dudh Nath Mishra and Others Vs. State of U.P. and Another, , Kishor Singh and etc. Vs. Sudama Prasad and Others, , it has been held that mandate of law is that the Magistrate shall call upon the complainant to produce all his witnesses and it is for the complainant to decide as to whom he would produce. The requirement under the Proviso is that the Magistrate has to examine the witnesses produced by the complainant or those who he want to produce with the assistance of the Court in procuring their attendance. Same is sufficient compliance of Proviso to Sub-section (2) of Section 202 of the Code.

It is not disputed that in this case the complain ant has not examined all the witnesses shown in the list of witnesses, but has examined few witnesses.

While dealing with the same question in the case of Rosy and Another Vs. State of Kerala and Others, , the Apex Court has held that the Magistrate is required to comply Proviso to Sub-section (2) of, Section 202 of the Code as far as possible, but the mandate is not absolute and any irregularity in non-examination of the witnesses is curable u/s 465 of the Code and aggrieved party may raise objection relating to any irregularity and prejudice caused to them because of non-examination of all the witnesses at earlier stage. Para 18 of the said judgment reads thus:

Further, the aforesaid interpretation would be in consonance with Chapter XXXV, Cr.PC, which deals with irregularities in the proceedings, which may or may not vitiate the proceedings. Sections 460 and 461 provide which irregularities would or would not vitiate the proceedings. In these sections, there is no mention of Section 202. For our purpose reference to Section 465 would suffice, which, inter alia, specifically provides that irregularity in the complaint, summons, warrant, order or other proceedings before or during trial or in any inquiry shall not be a ground for reversing an order passed by the Competent Court, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. Sub-section (2) further provides that in determining whether any irregularity in proceedings has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Hence, the statute does not expressly provide for nullification of the orders as a consequence of non-compliance with the Proviso to Sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry u/s 202 when the Magistrate examines the witnesses on oath, as far as possible the proviso is to be complied with the mandate is not absolute.

Para 47 of the said judgment reads thus:

Thus, I have no doubt that the proviso incorporated in Sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in such cases. I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the Magistrate to issue such summons, for, there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses.

In the case of Vinod Kumar Shivhare and others Vs. Tarachandra Gupta, , M.P. High Court has held that if objection is raised at earlier stage it can be said that prejudice would be caused to the accused by non-examination of all the witnesses of the complainant in accordance with the Proviso to Sub-section (2) of Section 202 of the Code. From the law laid down by the Apex Court in the matter of Rosy (supra), it is clear that the Magistrate is required to call upon the complainant to produce all his witnesses and the Magistrate is also under obligation to examine all the witnesses which the complainant wishes or proposes to produce. But if prejudice is caused to the opposite or aggrieved party as a result of such non-compliance it can be raised at earlier stage and if not raised at earlier stage, it may be inferred that no prejudice has been caused to the opposite party/accused persons.

In this case, learned Additional Sessions Judge has earlier remitted back the case for examination of all witnesses shown in the list of witnesses and to pass order afresh, but even after passing of such order, the complainant has not examined all witnesses and only on the basis of non-examination of the witnesses, learned Judicial Magistrate First Class, Bilaspur has dismissed the complaint. In the case of Rosy (supra), the law declared by the Apex Court still holds field and binding upon all the Courts of India. According to the law declared by the Apex Court in the case of Rosy (supra), duty to call upon the complainant to examine all the witnesses is cast upon the Court and if the complainant fails to examine all the witnesses or not examined all witnesses, then it may be an irregularity curable u/s 465 of the Code and aggrieved party may raise objection relating to any irregularity and prejudice caused to them because of non-examination of all the witnesses at earlier stage, but that should not be the sole ground for dismissal of complaint and in the light of the pronouncement in the case at Rosy (supra), the direction given by the 3rd Additional Sessions Judge, Bilaspur in Criminal Revision No. 225/94 be interpreted in the light of dictum of the Apex Court in the case at Rosy (supra). The Trial Court was required to consider the statements of the witnesses adduced on behalf of the complainant and if the statements so recorded would be sufficient for taking cognizance, the Court was under obligation to take cognizance for the offence exclusively triable by the Court of Session. But the Court below has dismissed the complaint only on the ground of non-examination of all witnesses shown in the list of witnesses. The impugned order is not sustainable under the law in the light of the law laid down by the Apex Court in the case of Rosy (supra).

Accordingly, the petition is allowed and the order impugned is set aside. The case is remitted back to the Court of Judicial Magistrate, First Class, Bilaspur for reconsideration on the basis of the statements recorded under Sections 200 and 202 of the Code.