Satyadeo Pandey and Others vs State of U.P. and Another

B.L. Yadav, J.—This is a criminal revision under Sections 397/401 of the Code of Criminal Procedure 1973 (for short the Code) filed against the order dated 5th January, 1987 passed by the I Additional Munsif-Magistrate, Mirzapur to quash the order summoning the accused for the offences under Sections 147, 148, 436, 323, 429, 504 and 506(2) IPC by issuing a non-bailable warrant.

The facts of the case lie in a narrow compass and they are these. Against the applicants a first information report was lodged disclosing the offence under the aforesaid sections. But according to the complainant, the opposite party No. 2, the police did not record the first information report and at the instance of the Superintendent of Police, Mirzapur in the Police Station Kotwali Dehat, the report was entered and the injured persons were examined. But the local police did not take interest and ultimately final report was submitted. Consequently the complaint was filed by opposite party No. 2 against the applicants making allegations about the offence under the aforesaid sections. As many as eleven prosecution witnesses were examined in accordance with the list of the witnesses given by the complainant and the applicants have been summoned by the impugned order dated 5th January, 1987 .passed by the I Additional Munsif Magistrate, Mirzapur in view of the procedure provided u/s 204, of the Code as there appeared to be sufficient grounds for proceeding against the applicants. It is against this order that the present revision has been filed.

I have heard Sri. N.K. Roy, the learned Counsel for the applicants, who strenuously urged that as the police investigation was proceeding, hence the learned Magistrate must have stayed the proceedings of inquiry in view of Section 210(1) of the Code and further that as offence u/s 436 IPC was exclusively triable by the Court of Session, hence all the witnesses must have been examined in view of the second proviso to Sub-section (2) of Section 202 of the Code. As the same was not done, the procedure adopted was illegal and the order deserves to be quashed. Reliance was placed on 1984 ACC 359, Ram Adhar v. State 1980 ACR 153 : 1980 AWC 214 and Babu Ram v. State of Uttar Pradesh 1978 AWC 217 : 1978 ACR 126.

Having heard the submission made by the learned Counsel for the applicants I am of the view that there are no merits in this revision. As regards the first point that the learned Magistrate must have stayed the proceedings of such inquiry as the police investigation was also pending as envisaged by Section 210 of the Code suffice it to say that the learned Magistrate appeared to be conscious about the provisions aforesaid and he has recorded a finding that the police has submitted a final report in the matter. Consequently there was no sense in staying the proceedings before the learned Magistrate. Adverting to the second point much emphasis was laid on the second proviso to Section 202 of the Code which is set out below:

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath".

It is well known principle that the statutory provisions must be construed reasonably and rationally to give effect the intention of the legislature. See M. Satyanarayana Vs. State of Karnataka and Another, . Similarly in the American Jurisprudence. Vol. I, pages 831-839 (Paras 36 and 37) it has been stated that the prime object of construction of laws is to ascertain and carry out the intent of the legislature.

In the instant case under the second proviso to Section 202 of the Code the words used are " if 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 ". A bare reading of this provision indicates the wisdom of the legislature inasmuch as the provision is not that the Magistrate shall examine all the witnesses so as to make it obligatory on the part of the Magistrate to examine all the witnesses. The provision, on the other hand is that the Magistrate shall call upon the complainant to produce " all his witnesses ". Again the words are not " all witnesses ", but " all h s witnesses ". The word '' his '' is adjective according to Grammar qualifying word '' witnesses ''. ''His'' means of himself, or belonging to him, Or associated with him. According to the Webster''s Third New International Dictionary, the word '' his '' connotes, associated or connected with him, or relating to him, that he is capable of. In the present context the words " all his witnesses " connote that all the witnesses of the complainant associated or connected with his interest and those witnesses who are material and relevant to prove prosecution case.

The words " all his witnesses " under the Proviso to Section 202(2) of the Code do not refer literally to all the prosecution witnesses in number, rather to all his witnesses (i. e. of the complainant) and to whom he considers material to prove his case. A document was produced by the learned Counsel for the applicants in Criminal Case No. 868/86 ; Pancham v. Satyadeo indicating the list of witnesses, showing fifteen witnesses. But of them eleven witnesses have been examined and their names have been given in the second paragraph of the impugned order, namely, Debi PW 1, Kishore PW 2, Chhatham PW 3, Laudhar PW 4, Teju PW 5, Jagai PW 6, Ram Nihore alias Phutakkan, PW 7, Lal Bahadur PW 8, Mangal PW 9, Asha PW l0 and the complainant Pancham (Opposite party No. 2) was also examined as a witness. In this eleven witnesses were examined whereas in the list there were fifteen names given.

The offence u/s 436 IPC i. e. mischief by fire or explosive substance with intent to destroy house ete. was the offence triable by the Court of Session. The remaining four witnesses were No. 12 was Record Keeper, Police Papers Office, Mirzapur and PW13 was Naval Kishore Constable, but as the police has submitted final report, hence the statements of Record Keeper and Constable were besides the point. Similarly PW 14 was Dr. M.N. Singh and PW 15 was Dr. B.J. Khanna, their statements were also irrelevant to prove an offence u/s 436 IPC. In this view of the matter the remaining witnesses were irrelevant and were correctly not examined u/s 202(2) of the Code. This is the reason why legislature used the words " all his witnesses " and not " all witnesses ". As eleven witnesses were only material to prove the case of the complainant for an offence u/s 436 IPC hence correctly the remaining four witnesses were not examined. There could be no irregularity or illegality by non-examining remaining four witnesses.

The provisions of Section 208 of the Code provide that when process has been issued in view of procedure u/s 204 of the Code in a case triable exclusively by the Court of Session, the Magistrate should furnish without delay, to the accused, free of costs, a copy of the statement recorded u/s 202 of the Code so that the same may be used by the accused to prepare his defence and to contradict that witness in the witness box. The object appears to be that the witnesses who have been examined u/s 202 of the Code in a case triable by the Court of Session, only they can be examined before the Court of Session.

The matter may be viewed from another angle. In the complaint case before issuing the processes u/s 204 of the Code the Magistrate substantially does the same thing as provided u/s 161 of the Code where the police examines orally any person supposed to be acquainted with the facts and circumstances of the case. In that statement also there is no obligation on the part of the police to examine all the witnesses. The police records the statements of those witnesses whose statements appear to be relevant and are sufficient to support the prosecution case. Similarly under the proviso to Section 202(2) of the Code I am of the view that in the present case if out of a list of fifteen witnesses eleven were examined, that was sufficient to prove the offence u/s 436 IPC triable by the Court of Session. For this offence the statements of the doctor and police constable or Record Keeper were irrelevant.

Adverting to the cases relied upon by the learned Counsel for the applicants Babu Ram v. State of Uttar Pradesh (supra) Ram Adhar and Anr. (supra) and 1984 ACC 395 were cases on different facts and not like present case where offence triable by the Court of Session was u/s 436 IPC and witnesses who have not been examined were two witnesses of police (i. e. one Record Keeper and one Constable) and two doctors whose statements were irrelevant to prove prosecution case u/s 436 IPC. The cases cited on behalf of the applicants are the cases on the facts of those particular cases. They are the cases what they actually decided.

In this connection it is better to quote an observation in Quinn v. Leathern (1890) AC 495:

Now before discussing the case of Allah v. Flood (1889) AC 1 and what was decided therein there are two observations of a general character, which I wish to make and one is to repeat what I have very often said before, that every judgment must be read applicable to the particular facts proved or assured to be proved, since the generality of the expressions which may be found they are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expositions are to be found. The other is that a case is only an authority for which it actually decided. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.

In Gasket Radiators Pvt. Ltd. Vs. Employees'' State Insurance Corpn. and Another, their Lordships of Supreme Court has observed as follows:

Judgments of Courts are not to be construed as Acts of Parliament nor can we read a judgment on a particular aspect of a question as a Holy Book covering all aspects of every question whether such questions or facts of such question arose for consideration or not in that case.

In view of the aforesaid observation I am of the view that the intention of the Legislature as contained in the second proviso to Section 202 of the Code has not been considered in the cases relied upon by the learned Counsel for the applicants. Further those cases are distinguishable on facts. Consequently I do not consider them to be relevant for the purpose of this case.

Before the order could be signed the learned Counsel for the applicants stated that subsequent to the filing of the present revision, an application u/s 482 of the Code has been filed by the applicants against the same impugned order and the same has been admitted, hence the present revision may be admitted. But as this revision was filed earlier, arguments in the revision were concluded earlier, but the order could not be signed, hence I consider it proper to decide this revision and sign the judgment and order.

In view of the discussions made hereinbefore, I do not find any merits in the revision and the same is accordingly dismissed in limine.