Prafulla Kumar Samal alias Prafulla Samal and Others vs State of Orissa and Another

L. Mohapatra, J.—This application u/s 482, Code of Criminal Procedure has been filed challenging the order dated 17.5.2003 passed by the learned S.D.J.M., Jajpur in I.C.C. No. 481 of 2002 taking cognizance of offence u/s 302/34 of the Penal Code and directing issuance of N.B.W. against the Petitioners.

The case as presented by the complainant is that one Rabindra Biswal was assaulted by one Chhota alias Bijaya Mallik in the evening of 17.11.2002 and the said Rabindra Biswal succumbed to the injuries. The brother of the deceased lodged a written report at Kuakhia out Post on the basis of which Dharmasala P.S. Case No. 323 of 2002 was registered for commission of offence u/s 302 of the Penal Code. Investigation was taken up and charge sheet was submitted for commission of offence u/s 302 of the Penal Code against the aforesaid Bijaya Mallik in G.R. case No. 1235 of 2002 pending in the Court of the learned S.D.J.M., Jajpur. It is the case of the Petitioners that during investigation by police the opposite party No. 2 was examined u/s 161, Code of Criminal Procedure but she did not implicate the present Petitioners in any manner to have participated in the alleged offence. However, she filed a complaint on 2.12.2002 before the learned S.D.J.M., Jajpur making allegation against the present Petitioners as well as the other accused who has been charge sheeted by the police. On receipt of the complaint, the learned Magistrate recorded the initial statement of the complaint as well as three other witnesses namely, Duryodhan Mallik, Runa Biswal and Saumya Ranjan Biswal u/s 200, Code of Criminal Procedure on 5.4.2003. The offence alleged being triable by the Court of Session, an inquiry was conducted u/s 202, Code of Criminal Procedure and during that inquiry, some more witnesses were examined on behalf of the complainant. On the basis of the initial statement of the complainant and three witnesses as well as the statements of witnesses examined on oath u/s 202, Code of Criminal Procedure, the learned Magistrate found a prima facie case for commission of offence u/s 302/34 of the Penal Code and issued N.B.W. against the present Petitioners in the impugned order.

Shri Panda, the learned Counsel appearing for the Petitioners submitted that in a case triable by Court of Session, if a complaint is filed, the learned Magistrate has no other option except to enquire u/s 202, Code of Criminal Procedure and during such inquiry not only the complainant but all witnesses named in the complainant are required to be examined. If such a procedure has not been followed by the learned Magistrate, the order taking cognizance becomes bad in law. According to Shri Panda, after receipt of the complaint, the learned Magistrate examined the complainant and three witnesses u/s 200, Code of Criminal Procedure and proceeded for an inquiry u/s 202, Code of Criminal Procedure wherein some more witnesses were examined. It is submitted on behalf of the Petitioners that once an inquiry u/s 202, Code of Criminal Procedure is taken up, the complainant and her witnesses are required to be examined even if they had earlier been examined u/s 200, Code of Criminal Procedure and the said procedure having not been followed by the learned Magistrate, the order taking cognizance is liable to be quashed. Reliance was placed by the learned Counsel on some decision of this Court which will be dealt with later on.

Shri Jena, learned Counsel appearing for the opposite party No. 2 referring to the impugned order submitted that even in a case triable by the Court of Session, if a complaint is filed, the learned Magistrate no doubt has to conduct an inquiry u/s 202, Code of Criminal Procedure but it is not required for the complainant to examine all the witnesses named in the complaint and the complainant can choose of her own witnesses. Shri Jena further contended that the complainant and three other witnesses having been examined u/s 200, Code of Criminal Procedure, there was no necessity to examine them again during inquiry u/s 202, Code of Criminal Procedure and, therefore, only the rest of the witnesses chosen by the complainant are to be examined and the order sheet clearly shows that the complainant declined to examine any other witness in the inquiry u/s 202, Code of Criminal Procedure.

The limited question raised before this Court is as to whether the complainant and some of her witnesses examined u/s 200, Code of Criminal Procedure are again required to be examined during inquiry u/s 202, Code of Criminal Procedure or not. For better appreciation of this point, reference may be made to the relevant Sections, Section 200, Code of Criminal Procedure provides that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. Section 202 of the Code of Criminal Procedure prescribes as follows:

Postponement of issue of process-

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him u/s 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath u/s 200.

(2) In any inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

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.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer in charge of a police station except the power to arrest without warrant.

Sub-section (2) of Section 202, Code of Criminal Procedure clearly provides that when the offence complained of is triable exclusively by the Court of Session, the Magistrate shall call upon the complainant to produce all his witnesses and examine them on oath. In the case of Gokulananda Mohanty and Ors. v. Muralidhar Mallik reported in Vol. 47 (1979) C.L.T. 244 a division Bench of this Court observed as follows:

In our opinion, 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 undertaken, he has to call upon the complainant to produce all his witnesses and has to examine them on oath.

In a latter decision of his Court, the aforesaid view was accepted but it was decided that it may not be necessary for the complainant to examine all the witnesses named in the complaint during inquiry u/s 202, Code of Criminal Procedure and the complainant can choose his own witnesses for examination during inquiry u/s 200, Code of Criminal Procedure In this connection reference may also be made to a decision of this Court in the case of Murali Mohakur '' Mendidhar and Others Vs. State of Orissa and Another, . The relevant paragraph of the judgment is quoted below:

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The Division Bench of this Court in Charan Rout and Others Vs. Prafulla Kumar Mangaraj, , have already laid down the law that the Magistrate under the proviso to Sub-section (2) of Section 202 of the Code has no statutory obligation to call upon the complainant or all such witnesses named in the complaint petition, but what he is required to do, is to call upon the complainant to produce all his witnesses of his choice and exaine them on oath. A Magistrate, who is competent and required to take cognizance, cannot force the complainant to examine witnesses. Expression "call upon" has been held to mean "require" or "direct". The Apex Court in Rosy and Another Vs. State of Kerala and Others, have held that when it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, the direction for investigation by the police officer is not permissible and he is required to hold enquiry., During that enquiry he may decide to examine the witnesses on oath. At this stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all of his witnesses and examine them on oath. The reason obviously is that in a private complaint, it is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by the complainant u/s 204(2) of the Code before issuance of process. The irregularity of non-compliance thereof would not vitiate the further proceeding in all case. A person complaining of such irregularity should raise objection at the earliest date and he should point out how prejudice is caused or is likely to be caused by not following the proviso. In view of the conspectus of the decision referred to above, the contention of the learned Counsel that the complainant having not examined all the witnesses named in the complaint petition, the order of cognizance was bad in law, has to be rejected. The complainant is the best judge to choose his witness and it is not compulsory for him to produce all such witnesses named in the complaint petition. What is required is that he has to produce all the witnesses and to examine them on whom he claims that the case depends. Some other decisions have been cited at the bar, but those having reiterated the view expressed in the decisions referred to above, it is not necessary to burden the judgment by discussing those.

Now the question that raised in this case is whether the complainant is required to examine those Section 200, Code of Criminal Procedure or not. A bare perusal of both the Sections clearly indicate that when the complainant and his witnesses are examined u/s 200, Code of Criminal Procedure the substance of such examination shall be reduced to writing whereas in an inquiry u/s 202, Code of Criminal Procedure the evidence of the witnesses has to be recorded in full. In view of such difference in both the Sections, in my considered view, even if the complainant and the witnesses are examined u/s 200, Code of Criminal Procedure, if an inquiry u/s 202, Code of Criminal Procedure is taken up, the complainant and witnesses of his choice are again required to be examined and, their statements on oath are required to be recorded.

The learned Magistrate undisputedly has not followed this procedure. I, therefore, have no other option except to quash the order and direct the learned Magistrate to take up the inquiry u/s 202, Code of Criminal Procedure afresh calling upon the complainant to examine all witnesses of her choice, even if such witnesses had been examined earlier u/s 200, Code of Criminal Procedure and shall thereafter proceeded with the case in accordance with law.

The Criminal Misc. Case is allowed to the above extent.