Harapal Singh vs State Of U.P. & Another
2012 Latest Caselaw 4380 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 57
 

 
Case :- CRIMINAL REVISION No. - 4959 of 2009
 

 
Petitioner :- Harapal Singh
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Gaurav Kakkar
 
Respondent Counsel :- Govt. Advocate,C.P. Upadhyaya,Vivek Singh
 

 
Hon'ble Aditya Nath Mittal,J.

1. Heard Sri Gaurav Kakkar, learned counsel for the revisionist and learned A.G.A. for the opposite parties. Sri Vivek Singh, Advocate has also put in appearance.

2. This criminal revision has been filed against order dated 5.11.2009, passed by Additional Sessions Judge (Fast Track Court No.2), Bijnor in Session Trial No.644 of 2008 (State Vs. Harpal) and against order dated 26.10.2009.

3. A complaint against the revisionist was lodged by Sri J.K.S. Negi, the then 4th Additional District Judge, Bijnor in continuation to his judgment dated 21.11.2000, for the offences punishable under Section 182/195 I.P.C. The said complaint was registered by the Chief Judicial Magistrate and after taking cognizance the case was committed to the court of Sessions. The prosecution wanted to examine Shiv Kumar as P.W.-1 and Jodha Singh as P.W.-2, regarding which objection was taken by the revisionist and moved an application Kha-19 on 26.10.2009, which was rejected on 5.11.2009.

4. The main contention of learned counsel for the revisionist is that the court has not followed the procedure laid down in Section 208 and 209 Cr.P.C. and could not record the statement of such witnesses, who were not examined under Section 202 Cr.P.C.

5. By this revision, the order dated 26.10.2009 as well as 5.11.2009 have been challenged. As far as the order dated 26.10.2009 is concerned, the revisionist instead of cross examining the witnesses, moved an application Kha-19. The Court invited the objections of A.D.G.C. (Criminal) and fixed 3.11.2009 for disposal. To my opinion, there is no illegality or perversity in the order dated 26.10.2009 because by order dated 26.10.2009, the court has not only entertained the application moved by the revisionist but has also invited objections from the ADGC (Criminal). In any case, if any application is moved and objections are invited, that can be regarded as a final order and no grievance has been caused to the revisionist by the order dated 26.10.2009. Hence the revision against order dated 26.10.2009 is not maintainable.

6. As far as the order dated 5.11.2009 is concerned, it is a detailed order and learned lower court has considered all aspects of the matter. It is relevant to point out that the Session Trial No.587 of 1998 "State Vs. Shiv Kumar and another", under Sections 364 and 307 I.P.C., P.S. Mandavar, District Bijnor was decided by the then 4th Additional Sessions Judge, Bijnor (Sri J.K.S. Negi, H.J.S.), who has acquitted the accused persons and has clearly drawn a conclusion that the complainant of that case Harpal Singh had falsely implicated accused persons Shiv Kumar and Jodha Singh and had given the false information to the police. Accordingly, in judgment itself it was pointed out that necessary action be taken against Harpal Singh for lodging false report to the police.

7. In the said continuation, the Presiding Officer (Sri J.K.S. Negi) discharging his official duties had filed a complaint before the Chief Judicial Magistrate. The Chief Judicial Magistrate after taking cognizance of the matter, summoned the accused persons. In the trial, the prosecution examined Shiv Kumar as P.W.-1 and Jodha Singh as P.W.-2, regarding which an application in the form of objection 19-Kha was submitted before the court concerned.

8. The revisionist had relied upon Ram Adhar and another Vs. State of U.P. another, 1980 (17) ACC 165, in which it has been held that if a witness has not been examined under Section 202 Cr.P.C., then such witness cannot be examined in the course of trial before the sessions court.

9. In complaint cases, after the complaint has been presented, the statement of the complainant is recorded under Section 200 Cr.P.C. and during the course of enquiry the magistrate may, if he thinks fit, take evidence of witnesses on oath. Proviso to section 202(2) also provides that if it appears to the magistrate that the offence complaint is triable exclusively by the court of sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

10. It is also relevant to point out that proviso to Section 200 Cr.P.C. provides that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint.

11. In view of proviso to Section 200 Cr.P.C., it was not incumbent upon the Chief Judicial Magistrate to examine the complainant and the witnesses.

12. Learned lower court has relied upon Laxmi Narain Singh Vs. State of U.P. and others, 1999 (38) ACC 679, in which it has been held that if a complaint has been filed by the Judicial Officer, in discharge of his official duties then provisions of Section 202 and 203 Cr.P.C. shall not be attracted and the case will proceed like a police challani case.

13. Learned lower court has also relied upon Rozi and others Vs. State of Kerala and others, 2000 (1) JIC 815 (SC), in which Hon'ble Supreme Court has held that if any private person has submitted a complaint for an offence exclusively triable by the court of sessions then the objection must be raised at the first stage.

14. The proviso to Section 200 Cr.P.C. is very much clear which provides that when the complaint is in writing, the magistrate need not to examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint.

15. In these circumstances, the magistrate has not committed any error in not recording the evidence of witnesses under Section 202 Cr.P.C. Certainly the complaint under Section 182/195 IPC has been filed by the Additional Sessions Judge in discharge of his official duties and after recording the findings in the judgment dated 21.11.2000, hence it was not necessary for the Chief Judicial Magistrate to record the evidence of witnesses under Section 202 Cr.P.C. and those witnesses can very well be examined during the course of trial.

16. Learned counsel for the revisionist has submitted that provisions of Section 208 and 209 Cr.P.C. have been violated. Section 208 deals with the supply of copy of the statements and documents to accused in other cases triable by the court of sessions. Admittedly, the statements of witnesses were not recorded in view of proviso to Section 200 Cr.P.C., hence the question of supply a copy of statements under Section 208 Cr.P.C. does not arise.

17. Section 209 deals with the commitment of the case to the court of sessions when offence is triable exclusively by the court of sessions.

18. In this case the complaint was lodged by an Additional Sessions Judge and looking into the facts and circumstances that the offence punishable under Section 195 IPC is exclusively triable by the court of Sessions, the case was committed to the court of Sessions. In these circumstances, I do not find any violation of the provisions of Section 209 of Cr.P.C. Moreover, offence punishable under Section 195 IPC is exclusively triable by the court of sessions hence there was no illegality in committing the case to the court of sessions. No doubt Section 209 provides that the case shall be committed to the court of sessions after complying with the provisions of Sections 207 and 208 Cr.P.C. but as mentioned above, the statements of the witnesses were not recorded in view of the fact that the complaint was lodged by an Additional Sessions Judge in discharge of his official duties and there was no need to examine the complainant as well as witnesses in view of the provisions of proviso to Section 200 Cr.P.C., the question of compliance of provisions of Section 208 Cr.P.C. do not arise.

19. Learned A.G.A. has also drawn my attention towards the fact that present revisionist Harpal Singh had moved a petition under Section 482 Cr.P.C. before this Court which was registered as Criminal Misc. Application No.3883 of 2001 and was dismissed vide order dated 30.8.2007.

20. Another Criminal Revision No.136 of 2001 "Harpal Vs. State of U.P." was also filed by the present revisionist which was also dismissed vide order dated 18.2.2008.

21. The above conduct of the present revisionist shows that he simply intended to delay the proceedings against him for one reason or the other.

22. My attention has also been drawn towards Laxmi Narain Singh Vs. State of U.P., 1999-JIC-2-554, in which this Court has held that if the complaint has been filed by a judicial authority under Section 195 Cr.P.C. then provisions of Section 202 and 203 Cr.P.C. are not applicable and the complaint has to be proceeded with as if it was instituted on a police report.

23. In view of the above discussion, I do not find any illegality in the impugned order dated 5.11.2009. The revision is dismissed and the revisionist is directed to appear before the court concerned on the date fixed.

Order Date :- 21.9.2012

Kpy