Rabindra Prasad Singh and Others vs Smt. Lila Bala Singh and Another

D.P. Mohapata, J.—The petitioners have filed this application u/s 482, Criminal Procedure Code assailing the order passed by the learned Judicial Magistrate, First Class, Jajpur Road on 21-6-1988 in I.C.C. No 34 of 1988 taking cognizance of the offences under Sections 328 and 494, I.P.C. read with Sections 4 of the Dowry Prohibition Act and issuing nonbailable warrant against the petitioners for their production in the Court of Session The short question that arises for determination is whether the said order is vitiated due to non-compliance with the provision in Section 202(2) proviso

The factual backdrop of the case relevant for the present Purpose may be stated thus :

The opp. party No. 1 Smt. Lilibala Singh lodged a comnlaint in Court of the Judicial Magistrate, First Class, Jajpur Road (J.M.F.C ) on 13th May, 1988 against the petitioners and opp. party No. 2 Rashmirekha Jena. Petitioner No. 2 Basanta Manjari Singh is the wife of petitioner No. 3 Gangadhar Singh who is the brother of petitioner No. 1. It was alleged in the complaint petition that opp. party No. 1 had married petitioner No l on 9-5-1982 and thereafter they lived together as spouses. At the time of marriage the father of opp. party No. I had paid as dowry Rs. 3,000/- in cash and had promised to pay Rs. 2,000/- later. He could not arrange for payment of the said amount on account of which the petitioners used to ill-treat, torture and assault the opp. party No. 1. Petitioners 2 and 3 had threatened to get petitioner No. 1 married elsewhere. On 12-7-1985 the petitioner No.1 brought opp. party No. 2 to his house as his second wife and started with her On 21-10-1986 the opp. party No. 2 gave birth to a male child With a view to force opp. party No. 1 to leave the marital home the petitioner had attempted to poison her on 15-12-1986, but due to timely intervention of the villagers, some of whom were named as witnesses in the comnlaint petitioner she was saved. Under such compelling circumstances the opp party No. 1 was forced to leave her marital home and has been living with her parents.

In the complaint petition Chandi Kar, Anadi Charan Mekap, Gokula Kumar Singh, Prafulla Kumar Singh and Basanti Kumari Singh were named as witnesses with the statement that in addition to these there are other witnesses also.

It appears from the order sheet in the case that the learned Magistrate recorded to hold enquiry u/s 202, Cr.P.C. He directed the opp. The opp. Party No. 1 to produce her witnesses. On 6-6-1988 , 9-6-1988 and 20-6-1988 the 1988 the opp. Party No. 1 examined in all four witnesses, viz. Prafull Kumar Singh, Basanti Kumari Singh, Balaram Guru alias Das and Dr. Khageswar Sahu. It was recorded in the order dated 20-6-1981 : " The complaint files a memo, stating therein that she has no more witness to be examined. In view of the above memo, enquiry u/s 202 is closed." Thereafter on 21-6-1988 the learned Magistrate passed the order taking cognizance of the offence and directing production of the petitioners in the Court of Session since the offence u/s 328, I.P.C. is triable exclusively by the Court of Session .

The main ground on which the petitioners challenge the impugned order is that the opp. Party No. 1 - complaint has not examined in course of the enquiry all the witnesses named in the complaint petition as provided under the provision to Sub section (2) of Section 202 , Cr.P.C. and hence the cognizance order is vitiated . Shri D.P. Dhal , learned Counsel for the petitioners reiterating the above submission relied mainly on the decision of this Court reported in (1989) 2 O.C.R. 665 ( Kailash alias Kelu Jena v. Ramachandra Majhi) in support of the aove contention .

Since the result of the case turns on the interpretation of the provision to sub-Section (2) of Section 202 , Cr.P.C. it will be convenient to quote the said provision:

"Provision 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 complaint to producer all his witnesses and examine them on oath."

On a palin reading of the statutory provision it is clear that it mandates that the Magistrate shall call upon the complaint to produce all his witnesses and examine them on oath. The underlying principle behind it is that since the offence alleged is of serious nature and is to be tried by a Court of Session , it is necessary that the witnesses whom the complaint intends to examine in support of his case should be examined in the enquiry u/s 202, Cr.C.P. so that the accused will be aware of the evidence against him. The provision , in my view , neither expressly nor impliedly prescribes any requirement that it is mandatory for the complaint to examine each one of the persons named in the complaint petition as witnesses and further that the Magistrate is duly bound to ensure compliance of this requirement. Indeed the Magistrate cannot compel the complaint to examine any witness. It may so happen that after naming a person as a witness in the complaint there has been certain change a witness or witnesses . Elucidating the point suppose after filing of the compaint the accused persons have gained over some witnesses named therein , the complaint the certainly will not like to damage his case by examining such persons. Therefore, it can reasonable be said either to drop out some of the witnesses named in the complaint petition or to examine some persons not named therein. All that the proviso prescribes is that the Magistrate should call upon the complaint to produce all his witnesses and shall examine them on oath , so that the complainant cannot subsequently take the plea that he was not aware that he has to exhaust all his witnesses at stage of enquiry u/s 202, Cr.P.C.

Whether requirement of this provision has been complied in a case will depend on the facts and circumstances of the case . If from the records it is clear that being well aware of the position that he has to examine all his witnesses, the complaint leaves out some of the witnesses of named in his compliant petition, it cannot be said that the proceeding is vitiated due to non-compliance with the proviso and the cognizance order cannot be held to be bad on that score.

I have carefully perused the order sheet of the learned Magistrate . There is no order passed by the learned Magistrate expressly calling upon the complaint to produce all her witnesses in terms of Section 202(2) proviso; but, a noted earlier, from order dated 20-60-1988 signed by the Advocate for the complaint is available in the case record . There is , therefore, little doubt that the opp. Party No. 1 complaint had examined all her witnesses . Consequentiality it has to be held that Section 202(2) proviso of the Criminal Procedure Code was complied with and there is no substance in the petitioner''s challenge to the said order on that ground.

I have carefully perused the decision in Kailash alias Kelu Jeni''s case (supra). There is no dispute in a complaint case alleging offence exclusively triable by the Court of Session , cognizance cannot . The said decision , as I read it, does not lay down the principle that u/s 202(2) proviso it is mandatory for the complaint t examine each one of the witnesses named in the complaint.

Accordingly the application fails it is dismissed.