HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In the High Court of Judicature at Allahabad Lucknow Bench, Lucknow A.F.R. Court No. - 19 Case :- MISC. SINGLE No. - 4785 of 2011 Petitioner :- Sudheer Kumar Respondent :- State Of U.P. Through Principal Secy. Home Dept. And Another Petitioner Counsel :- Arjun Singh Somvanshi Respondent Counsel :- G.A. Hon'ble S.C. Chaurasia,J.
1. Heard Sri Arjun Singh Somvanshi, learned counsel for the petitioner, Sri P.K. Shukla, learned A.G.A. and perused the record.
2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner with the prayer that the order dated 23.07.2011 passed by Additional Sessions Judge, Court No. 9, Hardoi, in Criminal Revision No. 3 of 2011 and the order dated 23.02.2010 passed by the Additional Chief Judicial Magistrate, Court No. 5, Hardoi, in Complaint Case No. 209 of 2009 as well as the proceedings of said Complaint Case No. 209 of 2009, Ram Shankar Vs. Sudheer Kumar and others, may be quashed.
3. Learned counsel for the petitioner has submitted that, prima facie, no case has been made out against the petitioner, but, the Learned Magistrate without applying its judicial mind, has summoned him illegally and the revision preferred against the summoning order has also been dismissed illegally, and hence, the impugned orders deserve to be quashed. He has also drawn my attention towards the proviso appended to sub-section (2) of Section 202 Cr.P.C. and has submitted that the case is triable exclusively by the court of Sessions and the complainant ought to have been directed to examine all his witnesses, but, neither such direction was issued by the Magistrate nor he examined all his witnesses and on account of it also, the impugned orders deserve to be quashed.
4. Learned A.G.A. has submitted that the proviso appended to sub-section (2) of Section 202 Cr.P.C. is not mandatory. He has further submitted that on the basis of evidence produced by the complainant, the learned Magistrate found that there are sufficient grounds for proceeding against the accused and, consequently, he ordered to summon the accused, accordingly. He has further submitted that the impugned orders are perfectly valid and call for no interference.
5. The sub-section (2) of Section 202 Cr.P.C. may be quoted as under:-
"(2) In an inquiry under sub-section (1), the Magistrate may, if he 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."
6. From the perusal of record, it transpires that the complaint was filed with the allegations that on 25.10.2009, at about 7.30 P.M., the complainant, Ram Shankar alongwith Sri Chandra had gone to Shahabad. The petitioner Sudheer Kumar and Guddu had opened fire by country-made pistols on them near Mahua Tola Chungi, Shahabad. Consequently, the complainant and Sri Chandra sustained fire arm injuries. In support of the allegations made in the complaint, the complainant examined himself under Section 200 Cr.P.C. and examined Sri Chandra under Section 202 Cr.P.C. in support of his case and also filed Medical reports.
7. After considering the evidence produced by the complainant, the learned Additional Chief Judicial Magistrate opined that there are sufficient grounds for summoning the accused and, consequently, he has ordered to summon the accused, Sudheer Kumar and Guddu, under Sections 307 and 504 I.P.C. vide order dated 23.02.2010. Feeling aggrieved by the said order, the accused, Sudheer Kumar preferred revision in the court of Sessions Judge, Hardoi, which was ultimately dismissed by the learned Additional Sessions Judge, Court No. 9, Hardoi, vide judgment and order dated 23.07.2011.
8. Feeling aggrieved by the said impugned orders, the accused, Sudheer Kumar has filed this writ petition.
9. The Hon'ble Apex Court, in the case reported in (2010) 7 SCC 578, Shivjee Singh Vs. Nagendra Tiwary and others, has held that the proviso appended to Sub-section (2) of Section 202 Cr.P.C. is not mandatory and if the Magistrate, on the basis of evidence available on record, is satisfied that there are sufficient grounds for proceeding against the accused, he can summon him. The paragraphs no. 22, 23 and 32 of the judgment may be reproduced as under:-
"22. The use of the word "shall" in the proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate concerned of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word "all" appearing in the proviso to Section 202(2) is qualified by the word "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process.
23. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say, whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.
32. As a sequel to the above discussions, we hold that examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of the proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint and the High Court committed serious error in directing the Chief Judicial Magistrate to conduct further inquiry and pass fresh order in the light of the proviso to Section 202(2)."
10. From the proposition of law laid down by the Hon'ble Apex Court, it is clear that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. The summoning order, passed in a case triable exclusively by the court of Sessions, cannot be quashed on the ground that the complainant has failed to examine all the witnesses in support of his case.
11. Learned Magistrate, after considering the evidence produced by the complainant, was of the view that there are sufficient grounds for proceeding against the accused, and consequently, the summoning order was passed. The revision preferred against the said order was also dismissed on merits.
12. After considering the record and submissions made on behalf of the parties, I am of the view that there is no manifest error of law in the said impugned orders, so as to call for interference by this Court in exercise of its powers under Article 226 of the Constitution of India.
13. In view of the foregoing discussions, I am of the view that this writ petition lacks merit and it is dismissed, accordingly.
Order Date :- 11.8.2011 kkm