Ram Adhar and Another vs State and Another

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure praying that the order of the VI Additional District and Sessions Judge, Allahabad dated 9-5-1979, be quashed and the learned Judge be directed not to record the evidence of the witnesses of the complainant other titan those produced by the complainant in the committing Court

It appears that Baboo Lal opposite party No. 2 filed a complaint against the applicants under Sections 302 and 395 Indian Penal Code in the court of the committing Magistrate. After opposite party No. 2 was examined u/s 200 Code of Criminal Procedure and Beni Lal was examined u/s 202 Code of Criminal Procedure the learned Magistrate by his order dated 30-6-1976 called upon the complainant to adduce oral and documentary evidence u/s 202 Code of Criminal Procedure by 7-7-1976. On 7-7- 1976 opposite party No. 2 filed an application before the learned Magistrate mentioning the names of the witnesses present for giving evidence on that day and also requested the. learned Magistrate to issue summons. The learned Magistrate passed the under mentioned order on the aforesaid application on the same day:

At this stage it is too early to summon SSP, DIG, Head Quarters, Doctors in the prima facie evidence u/s 202 Code of Criminal Procedure . Application is rejected for the present.

The learned Magistrate, however, did not examine any of the witnesses of opposite party No. 2, who were present on 7-7-1976, and also did not pass any order with respect to them, On 8-7-1976 the learned Magistrate summoned the applicants. On 9-7- 1976 opposite party No. 2 filed process rise etc. for issuing summons to the accused and also filed a list of witnesses who were to be examined during the trial. The learned Magistrate, however, did not examine any other witness on behalf of opposite party No: 2, who were mentioned in the list submitted Aider Section 204 Code of Criminal Procedure, and instead committed the case to the court of Sessions.

During the trial, after opposite party No. 2 and Beni Lal had been examined as witnesses and Bhagauti (sic) who was also, a witness on behalf (sic) was being examined, (sic) was filed on behalf of (sic) that witnesses (sic) examined on behalf of opposite party No. 2 in the committing Court be not examined. The learned Judge rejected the aforesaid application by his order dated 9-5-1979 and directed the prosecution to examine all the witnesses, who were mentioned in the list of witnesses submitted by opposite party No. 2 u/s 204 Code of Criminal Procedure in the court of the committing Magistrate.

Sub-sections (1) and (2) of Section 202 Code of Criminal Procedure are as follows:

202 (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 an inquiry under Sub-section (1), the Magistrate may, if be 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.

It is clear from a plain reading of the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure that the Magistrate is bound to examine all the witnesses, who are to be produced on behalf of the complainant, before (sic) the accused in cases (sic) mentioned that u/s 202 Code of Criminal Procedure the Magistrate is required to furnish the statements recorded under Sections 200 and 202 Code of Criminal Procedure to the accused free of cost without any delay. It is obvious that the statements of the complainant and other witnesses produced on his behalf are required to be recorded by the Magistrate under the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure so that these statements may be available to the accused for cross-examining them during the trial. It, therefore, follows that no witness can be examined during the trial on behalf of the prosecution in a case exclusively triable by the Court of Session whoso statement has not been recorded by the committing Magistrate under the proviso to Sub-section of Section 202 Code of Criminal Procedure and the copy of whose statement has not been, furnished to the accused u/s 208 Code of Criminal Procedure after his appearance in court. In the present case, the witnesses, who'' were to be examined on behalf of the complainant (opposite party No. 2), were in fact present in the committing court on -7-7 1976 before the applicants were summoned and the list of. witnesses who were to be examined on behalf of opposite party No, 2 was also supplied as required u/s 204 Code of Criminal Procedure . The learned Magistrate'' clearly erred in no examining all the witnesses of opposite party No. 2 u/s 202 Code of Criminal Procedure before summoning the applicants . The order summoning the applicants was, therefore, illegal. It follows that the subsequent proceedings, namely, the committal of the applicants to the Court of Session and the trial of the applicants to the Court of Session, and the order of the VI Additional District and Sessions Judge, Allahabad dated 9-5-1979 aw also illegal.

This application is accordingly allowed and, the order of V! Additional district and Sessions Judge, Allahabad dated 9-5-1979 is quashed and the Proceeding against applicants under Sections 302 and 395 IPC in S. Ts. No. 122 of 1978 and 122-A of 1978 in the Court of VI Additional District and Sessions Judge, Allahabad''. are also quashed. The case is remanded to court of the committing Magistrate and the learned Magistrate is directed to record all the evidence that is to be adduced on behalf of opposite party No-2 u/s 202 Code of Criminal Procedure and proceed in the case in accordance with law