Ghan Shyam Singh & Others vs State & Arun Kumar
2014 Latest Caselaw 3877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										      A.F.R.
 
										  RESERVED
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 521 of 1990
 
Revisionist :- Ghan Shyam Singh & Others
 
Opposite Party :- State & Arun Kumar
 
Counsel for Revisionist :- U.K. Saxena
 
Counsel for Opposite Party :- A.G.A.,V.P. Srivastava
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. This revision has been preferred against order dated 23.03.1990 passed by Additional Chief Judicial Magistrate, Bijnor in Case No. 912 of 1990 summoning the revisionists as accused under Sections 452, 307 and 323 I.P.C.

2. Brief facts are that the opposite party no. 2 lodged a first information report dated 02.05.1988 implicating the revisionists as accused which was registered as case crime no. 100 of 1988, under Sections 452, 307 and 504 I.P.C. and after investigating into the matter the police of police station Mandawal submitted a final report in the said case. During the pendency of the said final report, the opposite party no. 2 filed his own affidavit and also filed filed affidavits of three persons namely Lakhan Singh, Deo Raj Singh and Vijai Pal Singh corroborating the allegations made in the first information report.

3. I have heard Sri U.K. Saxena, learned counsel for the revisionists. None appears on behalf of opposite party no. 2. Learned A.G.A. is present.

4. Perusal of the impugned order shown that the impugned order was passed on 23.03.1990 by Additional Chief Judicial Magistrate, Bijnor, which is as follows:-

"Case called out. Applicant appeared. Perused the C.D. and affidavit filed by the witnesses. Prima facie case is made out against the accused Ghan Shyam, Magan Singh, Patia and Mahendra.

Let the accused be summoned u/s 452/307/323 I.P.C. fixing 26.04.1990 for appearance."

5. Before proceeding further, the provisions under which, this cognizance was taken, has to be looked into. Section 190 Cr.P.C. is related to the cognizance of offence by Magistrate which runs as follows:-

"190. Cognizance of offences by Magistrates-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence -

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try."

6. The order under revision shows that the cognizance was not taken by the Magistrate under Section 90(1)(a) or under Section 90(1)(b). Infact cognizance was taken upon information received from any other person other than police officer under Section 90(1)(c).

7. Meaning thereby that cognizance was taken after perusal of the C.D. and affidavits filed by the witnesses.

8. Learned counsel for the revisionists Sri U.K. Saxena has argued that the Magistrate ought to have complied with the provisions of Section 202 Cr.P.C. in its entity which has not been done by the Magistrate.

9. Section 202 Cr.P.C. runs as follows:-

"202. Postponement of issue of process-(1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made, -

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness 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.

(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant."

Thus according to the provisions of Section 202 Cr.P.C., if the offence of complaint was exclusively triable by the court of session, he should have called upon the complainant to produce all witnesses and should have examined them.

10. Learned counsel for the revisionist has placed reliance upon LAWS (ALL)-1981-3-3 (Dinesh Chand Sinha vs. Rahmatallah) in which it has been held that:-

"It is clear from a plain reading of the proviso to sub-section (2) of section 202 Cr.P.C. that the Magistrate is bound to examine all the witnesses who are to be produced on behalf of the complainant before summoning the accused in cases which are exclusively triable by the Court of Session. If, therefore, a Magistrate summons an accused in a case triable exclusively by the Court of Session without examining all the witnesses who are to be produced by the complainant the order summoning the accused would be illegal. Any other interpretation would do violence to the mandatory provision contained in the proviso referred to above. We, however, want to make it absolutely clear that before summoning the accused it is not open to the Magistrate to insist upon the production of all the witnesses cited by the complainant in his complaint. He can summon the accused even after some of the witnesses cited in the complaint have been examined by the complainant by this he can do only in the event when the complainant makes it clear that the witnesses examined by him were the only witnesses on whom he intended to rely upon. If the names of some persons to be examined as witnesses are not specifically mentioned in the complaint the magistrate will call upon the complainant to disclose their names and examine them also if he so wished or give them up if he does not want to examine them. In 1977 ACrR 314 Supra) brother Sinha J. took the view that it is legally open to the magistrate to summon the accused even when all the witnesses mentioned in the list accompanying the complaint have not been examined. We think this view of brother Sinha J. is not in accordance with law. With respect, it appears to us that brother Gupta, J. has incorrectly mentioned in the referring order that in Musara Narayana Reddy v. Kanakanti Mai Reddy, 1977 CrlJ 1473 Andhra Pradesh High Court; has also taken the view that it is open to the Magistrate to summon the accused even when the complainant has not examined all the witnesses cited by him in the complaint. On the other hand, we find that Andhra Pradesh High Court has taken the same view which we are going to take in this case. In Andhra Pradesh case ten witnesses had been cited in the complaint out of whom only seven were examined by the complainant in the Court of Magistrate. The remaining three were given up by the complainant. On the basis of the statement of the complainant and his seven witnesses the Magistrate summoned the accused. The Court found the order summoning the accused to be correct and in accordance with the proviso to sub-section (2) of Sec. 202 Cr.P.C. It observed that it is open to the complainant to give up some of the witnesses and those witnesses that were so given up can no more answer the description of "his witnesses" within the meaning of the expression as occurring in the proviso. With respect we fully subscribe to this view of the learned Judge who decided this case. Therefore, as this things stand, it is now clear that the Magistrate can certainly summon the accused even after examining some of the witnesses mentioned in the complaint but) the complainant has to make it clear that the witnesses examined on his behalf were the only witnesses on whom he intended to rely upon. If the complainant does not make this position clear then it is not open to the Magistrate to summon the accused without examining all the witnesses either mentioned in the complaint or in the list accompanying the complaint. In our view the ration laid down in the rulings reported in Haribans Tewari v. Hari Shanker, 1977 ACrR 187, Babu Ram v. State of U.P., 1978 ACrR 126 and Mohan Singh v. Uttam Singh, 1980 Prayag Nirnal Prakashika 246, is in accordance with law and, therefore, correct."

11. Further, learned counsel for the revisionist has placed reliance on LAWS (ALL)-1982-9-29 (Ahibaran Singh vs. State of Uttar Pradesh), in which, it has been held that in case protest petition is presented against the final report, the Magistrate could adopt the procedure of the complaint case. If there is a protest against the final report, the Magistrate should treat the respective protest petition as a complaint and take further proceedings and when the protest petition is treated as a complaint, the entire procedure of complaint case has to be observed. Before passing the summoning order, if it appears that a case of sessions trial is made out, consequently the application of Section 204 Cr.P.C. would also be attracted and as provided under Section 202(2) Cr.P.C., all the witnesses, which the person making the protest petition desires to produce, shall be examined. In fact, when the protest petition is to be treated as a complaint case under Section 204(2) Cr.P.C., the person concerned has to be called upon to furnish a list of prosecution witnesses and they all then have to be examined under Section 202(2) Cr.P.C. and only then any order summoning accused persons could be passed.

12. In the result, I find that the aforesaid impugned order of the Additional Chief Judicial Magistrate could not be sustained and is liable to be set aside.

13. Accordingly the revision is allowed.

14. The order of Additional Chief Judicial Magistrate, Bijnore in Case No. 912 of 1990, under Sections 452, 307 and 323 I.P.C., Police Station Mandawal, District Bijnor is set aside. The lower court shall pass fresh orders as per direction given in this revision.

Order Date :- 01.08.2014

sailesh