Shankar Roul vs Ramakanta Swain and Another

A. Pasayat, J.—The only point involved in this revision application is whether the requirements of proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973 (in short ''the Code ) were complied with.

Petitioner as complainant filed a complaint petition in the Court of the learned Subdivisional Judicial Magistrate, Athgarh (in short ''SDJM'') on 4-7-1987. Initial statement was recorded on 7-8-1987, and the matter was directed to be placed on 4-9-1987 for enquiry u/s 202 of the Code. Complainant was directed to produce his witnesses on the date fixed. The matter was adjourned from time to time and ultimately on /-11-1987 two witnesses were produced. The matter was again adjourned to 20-11-1987. On that date the enquiry was closed and the matter was directed to be placed on 25-11-1987 for orders. By the impugned order of even date the complaint petition was dismissed for non-complaince of proviso to Sub-section (2) of Section 202, for non-examination of the complainant himself. According to the learned SDJM, complainant is the principal witness and on account of his non-examination, there was non-complaince with the statutory requirement. Reliance was placed on a decision of this Court in Kartikeswar Nayak Vs. Karadi Jagannath and Others, .

Question posed in this revision application is whether complainant is a witness at all, and, whether his non-examination rendered the proceeding otiose. Statutory mandate of proviso to Sub-section (2) of Section 202 is that where it appears to the Magistrate that offence complained of is triable exclusively by Court of Session he shall call upon the complainant to produce all witnesses and examine all of them Controversy primarily centres round the expression "all witnesses" and what her it includes complainant himself "All witness" does not necessarily mean all witnesses named in the complaint petition. It means all witnesses he chooses to examine. Otherwise the legislative intent would be defeated, Supposing a party finds that a witness named in the complaint petition does not want to be involved in the trial and wants to opt out or that he has been gained over by the other side, can it be said non-examination of witness named in the complaint petition is fatal. Taking an extreme case, supposing a named witnesses is dead, can the complaint be dismissed because of his non-examination ? If a witness has been gained over and the complainant has knowledge of it, he would run the risk of causing damage to his own case, if there is insistence that all witnesses named in the complaint petition must be examined, It would be a travesty of justice. A narrow interpretation of the expression "all witnesses" would frustrate the very purpose for which the provision has been inserted. All that the section requires is that each witness which the complainant chooses to examine to further its case must appear before the Migistrata so that the latter can be satisfied about existence of a prima facie case, A somewhat similar view has been taken by this Court in 1988 (II) OLR 288 : Jaladhar Das and Ors. v. Sridhar Das.

Further question that requires resolution is whether the complainant himself is to be examined. This position has been settled by a series of decisions reference to one of which has been made by the learned Magistrate, Kartikeswar Nayak''s case (supra). There can be no dispute over the proposition that complainant himself is the principal witness. The scope of an inquiry u/s 202 of the Code is extremely limited only to ascertainment of truth or falsehood of the allegations made in the complaint on the materials placed by complainant before the Court for the limited purpose of finding out whether a prima facie case for issue of process has been made out and for deciding the question purely from the point of view of the complainant without at alt adverting to any defence that the accused may have, (See Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, . In a Division Bench decision of this Court in 47 (1979) CLT 244 : Gokulananda Mohanty and Ors. v. Muralidhar Mallik, It was held that complainant is bound to examine himself in addition to other witnesses because ultimately during, trial after commitment he will be required to be examined as a witness for the prosecution. The view expressed in Gokulananda Mohanty''s case {supra) was followed by this Court in 1988 (II) OLR 494 : Magi Nayak and Ors. v. State of Orissa and Baikunthanath Das. Therefore, the order of the learned SDJM is irreversible. However, as observed by this Court in Magi Nayak''s case (supra) an opportunity to complainant to examine himself should be given. The allegations made are grave and serious in nature and in that background such course would be proper. After examination of the complainant, if he chooses to appear, the learned SDJM shall proceed in accordance with law.

The revision application is accordingly disposed of.