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Judgment
K.P. Mohapatra, J.—In these two criminal revisions, the Petitioners have challenged orders passed by the learned Judicial Magistrate, Narasinghpur taking cognisance of offences exclusively triable by the Court of Session against them in contravention of the proviso to Section 202 (2) of the Code of Criminal Procedure (''Code'' for short). As common questions of fact and law arise for consideration, they were heard together and are disposed of by this common judgment.
Facts. Criminal Revision No. 601 of 1987 arises out of 1. C. C. Case No. 68 of 1987 of the Court of the learned Judicial Magistrate, Narasinghpur. It was alleged in the complaint petition filed on 22-8-1987 that on 25-2-1987 at about 9. 30 a. m. the Petitioners being armed with deadly weapons such as, guns, explosive substance, Tangis, Valis and lath is formed an unlawful assembly, abused opposite party No. 2 (complainant) and threatened to assault him. They set fire to his house and sugar-cane crops "raised by him which were completely destroyed and as a result of which a loss of Rs. 5000/- was sustained. F. I. R. was lodged at the police station, but after investigation a final report was submitted. Therefore, opposite party No. 2 filed the complaint petition in protest stating therein that the Petitioners had committed offence under Sections 148. 427 and 506 read with Section 149 of the Indian Penal Code (referred to as the ''I.P.C.''). Out of these offences, Section 436. Indian Penal Code is exclusively triable by a Court of Session. On the date of filing the complaint petition, the initial statement of opposite party No. 2 was recorded. He intended to produce more witnesses and so the learned Judicial Magistrate directed him to produce all his witnesses obviously with the intention of complying with the requirements of the proviso to Section 202 (2) of the Code, although it was not specifically mentioned in the order sheet dated 22.8-1987 that he had directed an enquiry as contemplated therein. On 10-9-1987, 11-9-1987, 15-9-1987 and 16-9-1987 he examined in all six witnesses named as such in the complaint petition. It is pertinent to point out that opposite party No. 2 did not examine himself as a witness in the enquiry. After consideration of the statements of the witnesses recorded on oath, the learned Judicial Magistrate by the impugned order took cognizance of the offences under Sections 147, 148, 427, 436 and 506 read with Section 149, 1. P. C. and issued process against the Petitioners.
Criminal Revision No. 602 of 1987 also arises out of I. C. C. Case No. 16 of 1987 of the Court of the learned Judicial Magistrate, Narasinghpur. Opposite party No. 2 alleged in the complaint petition that the Petitioners in a body arrived in front of his house on 20-2-1987 at about 2. 00 p. m. and asked him to vacate the house and leave the village. When he protested, the Petitioners forcibly entered inside the house and when his wife took exception to their high-handedness, Petitioner Joginath Nayak assaulted her on the head by means of a piece of stone, as a result of which, she fell down on the ground. Thereafter all of them intimidated and assaulted him by means of kicks, fist blows and stone and forcibly removed gold ornaments, cash and paddy valued at Rs. 25.000/-. On account of the assault, his wife died. He orally reported the matter in the police station, but the officer-in-charge of the police station instead of taking action asked him to perform the obsequises of his deceased wife and then report at the police station. As no action was taken, the complaint petition was filed on 4-3-1987 against the Petitioners for having committed offences under Sections 302, 395, 379 and 427 read with Section 34, Indian Penal Code. As some of the offences alleged are - exclusively triable by the Court of Session, the learned Judicial Magistrate directed opposite party No. 2 to produce all his witnesses in compliance with the requirements of the proviso to Section 202 (2) of the Code for the purpose of enquiry. In course of the enquiry on 22-8-1987 and 10-9-1987 opposite party No. 2 examined himself and two of the witnesses whose names found place in the complaint petition. He did not, however, examine one Sarat Kumar Rout whose name found place in the complaint petition, but on the other hand examined one Bidyadhar Mahalik. Although the enquiry was further adjourned to 16-10-1987 he gave in writing that he had no other witness to examine. After consideration of the statements of the witnesses examined on oath, the learned Judicial Magistrate by the impugned order took cognizance of the offences under Sections 147, 148,396 and 447 read with Section 149, Indian Penal Code and issued process against the Petitioners.
From the facts of the two case''s narrated above, it will appear that in I. C. C. Case No. 68 of 1987 all the witnesses for the prosecution named in the complaint petition were examined except opposite party No. 2, the complainant himself. In I. C. C. Case No. 16 of 1987 opposite party No. 2. the complainant examined himself and two witnesses named in the complaint petition. He did not examine another witness named therein, but produced and examined another person who was not named and gave in writing that he had no more witness to examine.
Mr. B. P. Ray, learned Counsel appearing for the Petitioners, contended that as all the witnesses for the prosecution in both the cases were not examined in the enquiry according to the proviso to Section 202 (2) of the Code, the impugned orders of cognizance are liable to be set aside. Mr. S. K. Mund and the learned Additional Government Advocate on the other band urged that it was not necessary to examine the complainant, if his initial statement had been recorded u/s 202 (1) of the Code and it is further unnecessary to examine all the witnesses named in the complaint petition. If the complainant in a case, exclusively triable by the Court of Session, examines all the witnesses produced by him in Court, then there is sufficient compliance with the proviso to Section 202 (2) of the Code and accordingly the orders of cognisance of these cases cannot be assailed.
The procedure laid down in the proviso to Section 202 (2) of the Code with regard to cases exclusively triable by the Court of session was introduced in the new code and has been interpreted by different High Courts. In this Court the first case of its time was reported in The State v. Kastu Behera 41 (1975) C.L.T. 487. On a reference made by the learned Sessions Judge, Cuttack, for quashing the order of commitment passed by the learned Sub-Divisional Judicial Magistrate, Talcher, on the ground of non-compliance with the proviso to Section 202 (2) of the Code, because all the witnesses for the prosecution were not examined, a learned Judge of this Court held:
The true purpose of the Proviso to Section 202 (2) of the Code, therefore, seems to be that where the Magistrate directs an inquiry to be made under Sub-section (1) thereof and" in the inquiry it appears to him that the offence complained of is triable exclusively by the Court of Sessions, he will examine the witnesses for the complainant on oath.
As in that case the learned Sub-Divisional Judicial Magistrate never required an enquiry to be made, there was no question of complying with the proviso to Section 202 (2) of the Code. The legality'' of the case of Kastu Behera1 (supra) was called in question in Gokulananda Mohanty and Ors. v. Muralidhar Mallik 47 (1979) C.L.T. 244. After taking several decisions into consideration including Boya Lakshmanna Vs. Boyachinna Narasappa and Another, . Paranjothi Udyar and Others Vs. State and Others, , Kamal Krishna De Vs. State and Another, and Babu Ram and Anr. v. State of Uttar Pradesh 1978 Cri. L.J.. 1430, a Division Bench of this Court held:
When the Magistrate after examining the complainant and his witnesses u/s 200 of the Code of Criminal Procedure is of the view that an offence exclusively triable by the Court of Session appears to have been made out, he is bound to take action under the proviso to Section 202 of the Code and there is no discretion left in him not to hold such enquiry. In the enquiry, which is bound to be under taken, he has to call upon the complainant, examine them on oath.
The principle laid down in the case of Gokulananda Mohanty. (supra) has been uniformly followed by this Court. The decisions to name a few are E. Ketra and Ors. v. Khal Madhab and Ors. 1983 Cri. L.J. 52, in which also a supporting Division Bench decision of the Andhra Pradesh High Court reported in Ramchander Rao and Others Vs. Boina Ramchander and Another, , was referred to, Jadu Behera and Ors. v. Dhaneswar Samantaray 60 (l985) C.L.T. 279, Kartikeswar Nayak Vs. Karadi Jagannath and Others, , and Anr. Division Bench decision reported in Ramesh Samal and Others Vs. Chabi Mandal and Another, . So, the uniform view of this Court is, in cases exclusively triable by the Court of Session the procedure laid down in the proviso to Section 202 (2) of the Code for examination of all witnesses requires strict compliance. This view of the Court finds support from a number of decisions of different High Courts, such as, Kamal Krishna De v. State and Anr. (supra) (Calcutta), Ramchander Rao and Ors. v. Boina Ramchander and another8 (supra) (Andhra Pradesh), Shyamkant Wamanrao Pawar and Ors. v. State of Maharashtra and Ors. Shyamkant Wamanrao Pawar and others Vs. State of Maharashtra and others, , Dinesh Chand Sinha v. Rahmatullah and Anr. 1981 All. L.J. 344 , Ranjit Guha Neogi v. State and Anr. 1981 Cri. L.J. 66 (Calcutta) Moideenkutty Haji and Others Vs. Kunhikoya and Others, .
Despite the pronouncement) of this Court on the applicability of the proviso to Section 202 (2) of the Code to the cases exclusively triable by the Court of Session instituted on complaint, in two decisions of this Court, a slightly different view was taken and in both of them the leading case of Gokulananda Mohanty2 (supra) was not noticed. In State of Orissa v. Khetrabasi Biswal and Ors. 49 (l980) C.L.T. 203. a learned Judge of this Court held that if it appears to the Magistrate that the offence complained of is triable by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. He is not required to examine the complainant. He is required to examine only the witnesses produced by the complainant. The expression "his witnesses" cannot include the complainant himself. In Kartikeswar Nayak v. Karadi Jagannath & 11 others10 (supra) relying upon the case of Gokulananda Mohanty'' (supra) it was held that in an enquiry according to the proviso to Section 202 (2) of the Code, besides the witnesses named in the complaint petition, the complainant is bound to examine himself, because ultimately during trial after commitment he will be required to be examined as a witness for the prosecution. The earlier case, however, was not noticed, but it was interpreted that "all his witnesses" included the complainant himself. In Subash Bastia and Ors. v. Bhagabat Bastia and Anr. 64 (987) C.L.T. 337, though one of the allegations was for an offence u/s 436, Indian Penal Code exclusively triable by the Court of Session, no reference was made to the proviso to Section 202 (2) of the Code and it was held that if the complainant does not examine some of the witnesses present, but examines those named in the complaint petition, the issue of processes was not vitiated. Broadly speaking, however, in these two decisions the larger principle laid down in the case of Gokulananda Mohanty'' (supra) was not differed from.
Now reverting to the two cases, it will appear from the records of 1. C. C: Case No. 68 of 1987, giving rise to Criminal Revision No. 601 of 1987, opposite party No. 2 being the complainant is a witness in support of his case, but he did not examine himself on oath in the enquiry under the proviso to Section 202 (2) of the Code. In I. C. C. Case No. 16 of 1987, giving rise to Criminal Revision No. 602 of 1987, one of the witnesses named in the complaint petition, Sarat Kumar Rout was not examined by the complainant (opposite party No. 2). On account of these lacunae, it cannot be said that opposite party No. 2, in each of these two cases, examined all witnesses within the meaning of the proviso to Section 202 (2) of the Code and so judged in the light of the decisions referred to above, orders of cognizance of the grave and serious offences against the Petitioners- after examination of some of the witnesses cannot be supported according to the law and must have to be vacated.
Before parting with the case, it is necessary to observe that allegations against the Petitioners are grave and serious in nature. In one case valuable property was destroyed besides commission of other offences such as, criminal intimidation. In the other case allegation has been made for a grave offence of dacoity and murder. There was no police action followed by investigation. Courts established by law exist to safeguard the life arid property of citizens. For that reason there is adequate prevision in the Code for a person to move the Court of law so as to initiate criminal action against persons accused of offences as the cases in hand triable by the Court of Session. The protection for vexatious and false allegations, however, is the enquiry according to the proviso u/s 202 (2) of the Code.
For all these reasons, I am of the view that although the impugned orders in both the cases shall have to be vacated, the complaint cases should be remanded to the Court of the learned Judicial Magistrate, Narasinghpur, so that he will give opportunity to the complainants to examine the remaining witnesses in course of the enquiries and dispose of the same in accordance with law. Be it stated that it will not be necessary to re-examine the witnesses already examined in course of the enquiries and the statements made by them on oath shall be taken into consideration for formulation of opinion.
In the result, the criminal revisions are allowed and the impugned orders of cognizance are vacated subject to the observations made above. 1. C. C. Case Nos. 68 and 16 of 1987 are remanded to the Court of the learned Judicial Magistrate, Narasinghpur, for disposal according to law.