Ved Prakash vs Sri Om
2011 Latest Caselaw 5228 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL.M.C. No. 2258/2011



%           Judgment reserved on: 13th October,2011
            Judgment delivered on: 31st October,2011


VED PRAKASH                                ..... Petitioner
                        Through: Mr. T.L. Garg, Adv.
                   versus

SRI OM                                        ..... Respondent
                         Through: Ms. R.P. Kaushik, Adv.



CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

    1. Whether the Reporters of local papers may be allowed
       to see the judgment?                     Yes
    2. To be referred to Reporter or not?       Yes
    3. Whether the judgment should be reported Yes
       in the Digest?

SURESH KAIT, J.

1 Vide this petition, learned counsel for the petitioner has assailed the summoning order dated 20.01.2005 passed by learned MM in CCNo. 22/03.

2 He has submitted that as per the list of witnesses submitted by the complainant, following were made witnesses in the complaint:-

1. Complainant.

2. Sh. Jagdish Singh

3. Sh. Inderjit.

4. Sh. Dharambir Singh.

5. Sh. Daya Nand.

6. Clerk, from M/s Motor General Finance company.

7. Any other or further witness with the prior permission of the Hon'ble Court.

3 He has further submitted that CW 2 Mr. Raj Singh s/o

Late Sh. Subey Singh R/o H.No. 377, Kanjawala, Delhi 81;

was examined on 28.09.2004 without being in list of

witnesses and on his deposition the aforesaid impugned

summoning order was passed.

4 Learned counsel for the petitioner had taken a legal

plea that as per the list of witnesses, the complainant in

Caluse7 has stated "any other or further witness with the

prior permission of the Hon'ble Court" whereas CW 2 Raj

Singh was examined without the prior permission of the

court, which is bad in law.

5 Learned counsel for the petitioner based on the aforesaid submissions has relied upon the judgment State of Bombay v. Janardhan and others AIR 1960 Bom 513, wherein it was observed as under:-

           ".........Witnesses       mean    only   those


      mentioned        in       list    under    S.204(IA)    by

complainant. Complainant is restricted to the examination of witnesses whose names are given in the list under section 204(IA).....".

"......The object of giving a list of witnesses, as provided in S.204(1A), is to give notice to the accused of the names of the witnesses for the complainant so that accused can prepare for their cross- examination. If witnesses not named in the list referred to in S.2049(IA) are allowed to be examined by the complainant the object of the Legislature in adding the new S. 204(IA) would be defeated. After the insertion of S.204(IA), S 256 has to be read along with S. 252 also with S. 204(IA). Therefore, in my opinion, in cases instituted otherwise on a police report the complainant is restricted to the examination of witnesses whose name are given in the list under S. 204(IA)......"

6 Admittedly, the complaint was filed under Section

402/406/506 IPC on 18.11.2000. CW1 Sh. Om was examined

in pre-summoning evidence on 06.04.2004.

7 Thereafter, vide order dated 20.01.2005, learned MM

passed the impugned summoning order. Thereafter, the case

was listed for pre-summoning evidence on 24.10.2010.

8 Facts stated in the complaint relating to offence under

Section 506 IPC are mentioned in para 7 of the impugned

order, which reads as under:-

"The complaint met with accused 2 and 3 in order to show the letter received from the finance company. These directors declined to pay the instalments as agreed earlier initially and also to pay anything to the complainant in lieu of plying of the vehicle. When the complainant further insisted and stated to approach the authorities and the court for getting justice and money which he invested on the promise and inducement of the accused persons. These aforesaid directors threatened the complainant on 12.12.1998 at the gun point to kill the complainant in case he dared to take any such action stated above. The complainant return back his house and contacted 7 other persons who also invested their money on their promise and inducement by the accused persons like that of the complainant."

9 Respondent has filed his reply which states that

Chapter XV of the Code deals with the complaint made to

the Magistrate. It starts with Section 200 which provides that

Magistrate taking cognizance of an offence on complaint

shall examine upon oath the complainant and the witnesses

present, if any, and the substance of such examination shall

be reduced to writing and shall be signed by the complainant

and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the

Magistrate need not examine the complainant and the

witnesses-

(a) If a public servant acting or purporting to act in the

discharge of his official duties or a court has made the

complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial

to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case

to another Magistrate under section 192 after examining the

complainant and the witnesses, the latter Magistrate need

not re-examine them.

10 Section 202 of Cr.P.C. provides postponement of issue

of process, whereas Section 203 provides dismissal of

complaint. Section 204 provides issue of process, whereas

sub-clause (2) provides no summons or warrants shall be

issued against accused under Section (1) Sub-section (1)

until a list of prosecution witnesses have been filed.

11 The Petitioner's main emphasis is that one Raj Singh

has been examined in pre-summoning stage, though his

name did found place in the list of witnesses. Thus, so far as

the respondent has caused injustice to the petitioner and as

such the summoning is bad in law.

12 The second ground taken by the petitioner is that the

complainant has not stated anywhere about the petitioner

Ved Prakash even though he has been summoned under

Section 506 IPC.

13 Further, it is stated, the scheme of Chapter XV of

Cr.P.C. is very clear and provides for examination of the

complainant and his witnesses after taking cognizance of

complaint on oath before the summons are issued to

accused persons. It is stated that in the present case, the

complainant was examined along with another witness

present in the court at the time of examination.

14 Learned Magistrate examined the witness namely Raj

Singh as per provision of Section 200 and thereafter, order

for summoning of accused persons.

15 Further, it is stated that the list of witnesses as

required under Section 204 (2) Cr.P.C. has also been filed

before summons were issued, as such there is no illegality or

non compliance of any of the requirement contemplated

under Section 204 of Cr.P.C.

16 It is further stated that the purpose of filing of list of

witnesses is to make aware the accused persons about the

nature of the evidence which may be adduced against them

during the proceedings. In the instant case, the witness Raj

Singh was also examined in pre-summoning stage, which

followed the summoning of the accused. So question of

accused persons not knowing the name of the witness

namely Raj Singh is not sustainable and as such no prejudice

has been caused to accused persons. Moreover, the purpose

of the filing of list of witnesses has been served.

17 Learned counsel for the respondent has relied upon a

case of Abdul Hafiz V. GHulam Mohi-ud-din 1997 Cri LJ

591 and Kanhu Ram V. Durga Ram 1980 Cri LJ 518, it

has been held that omission to file list of witnesses does not

vitiate the proceedings if the purpose otherwise is served.

The omission is regularly curable under Section 465 Cr.P.C.

18 Further, he has relied upon another Judgment in a case

of Ali Jan V. Amir Khan 1957 Cri LJ 630, wherein, it has

been held that the complainant can file second or even three

list of witnesses and non-incorporating any name does not

vitiate the proceedings.

19 As relied upon by the learned counsel for the petitioner

in the case of Janardan (supra) decided by Bombay High

Court, wherein it is clearly observed that the object of giving

a list of witness as provided in Section 204 (1 A) is to give

notice to the accused of the names of the witnesses for the

complainant so that the accused can prepare for their cross-

examination. If witnesses not named in the list referred to in

S. 204 (1A) are allowed to be examined by the complainant

the object of the Legislature in adding the new S. 204 (1A)

would be defeated. After the insertion of S. 204 (1A), S. 256

has to be read along with S. 252 also with S. 204 (1A),

Therefore, the cases instituted otherwise on a police report

the complainant is restricted to the examination of witnesses

whose names are given in the list under S. 204 (1A).

20 In the present case, the complainant has been

examined and one witness CW2, Sh. Raj Singh has also been

examined and thereafter, learned Magistrate has issued

summons against the petitioner.

21 It has been decided in Ram Sarup Gupta V. Bishun

Narain Inter College and others 1987 2 SCC 555 that in

the absence of pleading, evidence if any, produced by the

parties cannot be considered. It is also equally settled that

no party should be permitted to travel beyond its pleading

and that all necessary and material facts should be pleaded

by the party in support of the case set up by it. The object

and purpose of pleading is to enable the adversary party to

know the case it has to meet. In order to have a fair trial it is

imperative that the party should settle the essential material

facts so that other party may not be taken by surprise. The

pleadings however should receive a liberal construction;

pedantic approach should be adopted to defeat justice on

hair -splitting technicalities. Sometimes, pleadings are

expressed in words which may not expressly make out a

case in accordance with strict interpretation of law. In such a

case it is the duty of the court to ascertain the substance of

the pleadings to determine the question. It is not desirable to

place undue emphasis on form, instead the substance of the

pleadings should be considered. Whenever the question

about lack of pleading is raised the enquiry should not be so

much about the form of the pleadings; instead the court

must find out whether in substance the parties knew the

case and the issues upon which they went to trial. Once it is

found that in spite of deficiency in the pleadings parties

knew the case and they proceeded to trial on those issues by

producing evidence in that event it would not be open to a

party to raise the question of absence of pleadings in appeal.

22 As decided by Constitution Bench of Supreme Court in

a case of Bhagwati Prasad V. Chandramaul 1996 2 SCR

286 while considering this question observed as under :-

If a pleas is not specifically ade and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was

not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadins made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was nto expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection s : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to another."

23 As enumerated in Section 204(2) of Cr.P.C. that no

summons or warrants shall be issued against the accused

under Sub-section (1) until a list of prosecution of witness

has been filed.

24 In clause (3), it is enumerated that in a proceeding

instituted upon a complaint in writing every summons or

warrants issued in Sub section (1) shall be accompanied by a

copy of such complaint.

25 In the instant case, learned MM has passed an order on

summoning, further summons are to be issued to the

accused. It is mandatory that along with the summons, the

copy of the complaint of relevant documents and the list of

witnesses is required.

26 The petitioner has challenged the order of summoning

passed by the learned trial court. The summons are issued

to the accused, if the procedure enumerated under Section

204 of Cr.P.C. is not complied with, then it is a defect in

issuing the summons against the accused because accused

must know what is the complaint and evidence against him.

27 In the instant case, the learned MM has examined

complainant and also examined one of the witness namely

Raj Singh, therefore, it in the very much knowledge of the

petitioner/accused that what is the complaint and evidence

against him.

28 View taken in a case of Ghulam Mohd. Vani

reported in MANU/JK/004/1971 (citation to be checked)

that non compliance of Section 204(1A) is not an illegality

which renders subsequent proceedings null and void but is a

curable irregularity.

29 It is further observed that under Section 204(1A), it is

statutory proceedings is made in a public interest for the

protection and benefit of the accused and has to be

complied with normally; however, it is not mandatory in the

sense that even if no prejudice is caused to the accused, it

will vitiate the trail.

30 The single Judge of Calcutta High Court has also

observed in Sunil Akhya Chaudhary V. H.M. Zadwet

reported in MANU/WB/00050/1968 (Citation and parties

name to be checked) as held over the intention of

Legislature in indicating Section 204(1A) is quite clear. It is

that before issuing of summons or warrants against the

accused persons, the list of witnesses should be filed before

that point of Charge and need not be when

petition/complaint is filed.

31 I am of the opinion that even if filing of the list of

witnesses is contemplated by sub-Section (2) of Section 204

and is considered to be mandatory, the provisions contained

in Section 465 of Code have to be taken into consideration

before declaring the issue of process as illegal. This Section

465 of the new Code is equivalent to Section 537 of the old

code and it provides that no finding, sentence or order

passed by a court of competent jurisdiction shall be reversed

or altered by a Court of appeal or Revision on any error or

omission or irregularity in the complaint, summons,

warrants, proclamation, order, judgment or every

proceedings before or during the trial unless in the opinion of

appellant or the revision court if failure of justice is in fact

opened occasioned thereby.

32 The issue which is raised by the learned counsel for the

petitioner cannot be considered even an error in passing the

summoning order. Even in a case where an error in issuing

the process is there, even on that basis the complaint cannot

be rejected and cannot be set aside the summoning order

passed by the learned MM.

33 Therefore, I am not inclined to interfere in the order, as

no infirmity found in the impugned order. It will not result in

failure of justice and no prejudice has been caused to the

petitioner/accused.

34 Criminal M.C. 2258/2011 is accordingly dismissed.

35 No order as to costs.

SURESH KAIT, J

October 31, 2011 j