Satyapal and Another vs State of U.P. and Another

K.L. Sharma, J.—This is a criminal revision directed against the order dated 17.6.1994 passed by the First Additional Munsif Magistrate, Bijnor in Criminal Complaint Case No. 23 of 1994 Laxman v. Satyapal and Ors. u/s 302/34, I.P.C, P.S. Chandpur, District Bijnor, whereby the revisionists have been summoned u/s 204, Code of Criminal Procedure.

I have heard Sri Veer Singh learned Counsel for the revisionists, and the learned Additional Public Prosecutor for the State, and Sri K.M. Garg Counsel for opposite party No. 2.

Learned Counsel for the revisionists has contended that the learned Magistrate has committed an illegality by not examining all the witnesses in the inquiry u/s 202, Code of Criminal Procedure. Learned Additional Public Prosecutor replied that the learned Magistrate called upon the complainant to produce all his witnesses for inquiry u/s 202, Code of Criminal Procedure and the complainant produced five witnesses who have been examined by the learned Magistrate and thereupon the learned Magistrate after perusal of the testimony of the five witnesses and other documents came to the conclusion that there is a reasonable ground for proceeding further against the accused persons. I have also perused the impugned order of the learned Magistrate and find that the Magistrate has called upon the complainant to produce all his witnesses, but the complainant has produced only five witnesses and other documents. Learned Magistrate has after perusal of the evidence come to the conclusion that there is reasonable ground to proceed further and consequently he has summoned the accused revisionists. The requirement of Section 202, Code of Criminal Procedure has been fulfilled by the learned Magistrate and there does not appear to be any illegality in the impugned order of summoning the revisionists to answer the charge u/s 302/34, I.P.C.

Learned Counsel for the revisionist as well as learned Additional Public Prosecutor have invited my attention to several judgments in support of respective contentions:

Cases referred on behalf of opposite party Respondent No. 2 are as under:

(i) 1990 ACR Page 545, Para-4;

(ii) 1990 ACR 1. Para 10;

(iii) 1989 ACR 359, Paras 13 and 16;

(iv) 1988 CriLJ 298, (Raj);

(v) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, ;

(vi) 1991 ACC 372 .

Cases referred on behalf of revisionists are as under:

(i)1984 CriLJ 359 (sic);

(ii) Dharmvir and Others Vs. State of U.P. and Others, ;

(iii) AIR 1987 Kar 183;

(iv) Kamal Krishna De Vs. State and Another, .

After going through the judgments referred to above, I do not consider necessary to reproduce the facts of those cases and to highlight the points involved in those cases. The legal position has however been made clear from the very language of the provisions of Section 202, Code of Criminal Procedure. It is mandatory that the Magistrate before issuing processes to the accused of a complaint disclosing an offence exclusively triable by a Court of Session shall call upon the complainant to produce all his witnesses and examine them on oath. In the present case, the Magistrate has complied with this mandate of law by calling upon the complainant to produce all his witnesses. The complainant has in his wisdom examined five witnesses only which implies that the other witnesses, if any, cited in the complaint will not be produced by him before the Sessions Court. The Magistrate while holding an inquiry u/s 202, Code of Criminal Procedure is bound to call upon the complainant to produce all his witnesses and on production of all the witnesses the Magistrate is also bound to record their evidence because he cannot refuse to record the evidence of any of the witnesses. But if the complainant decides to produce only some of the witnesses named in the complaint the Magistrate cannot force the complainant to produce the remaining witnesses. However, it is open for the Magistrate to form his own opinion on the available evidence of the witnesses and material on record whether he finds a reasonable ground for proceeding to summon the accused persons for the offences alleged or for the offences prima facie made but by the available evidence. This is a judicial discretion to be exercised by the Court of Magistrate on the basis of the available evidence which he has properly exercised in the present case. Therefore, there is no illegality in the impugned order of summoning the revisionists as accused persons for the alleged offence u/s 302 read with Section 34, I.P.C.

Learned Counsel for the revisionists has further contended that in view of the affidavits filed by some of the witnesses produced by the complainant, a case is not prima facie made out and this Court should interfere in the matter by quashing the impugned order of summoning passed u/s 203, Code of Criminal Procedure The revisionists have of course filed affidavits, supplementary affidavit enclosing copies of some affidavits and other documents in order to substantiate the contention raised by the learned Counsel. I have gone through these affidavits, but, I am affraid that I cannot record any finding on the basis of these documents because it is the discretion of the Magistrate summoning accused persons u/s 204, Code of Criminal Procedure. The Hon''ble Supreme Court has emphatically laid down the correct law in this regard in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, in the following words:

...That at the state of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its revisional jurisdiction. The scope of the enquiry u/s 202 is extremely limited. It is true that in coming to a decision as to whether process should be issued, the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant, but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of prima facie case against him. Once the Magistrate has exercised his discretion it is not for the High Court or even to the Supreme Court, to substitute its own discretion for that of the Magistrate to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of an inquiry u/s 202 which culminates into an order u/s 204.

This Court cannot therefore make its own assessment on the basis of the material produced by the revisionists against the impugned order of their summoning u/s 204, Code of Criminal Procedure. and cannot substitute its finding of the finding recorded by the learned Magistrate in exercise of his judicial discretion vested in him u/s 204, Code of Criminal Procedure. The contention raised by the learned Counsel for the revisionists is therefore rejected.

There is no merit in this revision and the impugned order is perfectly legal and proper. Therefore the revision is hereby dismissed at the admission stage.