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ORISSA HIGH COURT
K.C. Jagadeb Roy. J.
Rabisingh Naik -Petitioner
versus
Arjun Majhi and ors. -Respondents
Criminal Rev. No. 510 of 1988
Decided on 16-9-1989
Counsel for the parties:
M/s. Y.S.N. Murty and Mr. K.T. Rao, Advocates - For the Petitioner.
M/s. P.V. Ramdas & Mr. B.K. Panda, Advocates - For the Respondents.
IMPORTANT POINT
Where the Magistrate postpones the issue of process and decided to hold an enquiry and the case appears to him one exclusively triable by the court of session it will be imperative for him to examine all the complainant's witnesses mentioned in the complaint petition.
Headnote:(i) Criminal Procedure Code, 1973 - Section 202- Indian Penal Code, 1860 -Section 302/149- Complaint before the Magistrate-- Allegation of murder- Magistrate fixed up the enquiry under Section 202- If the case appears to him one triable by the court of session, it will be imperative for him to examine all the witnesses for the complainant mentioned in the complaint Order issuing the process against the accused persons being satisfied after examining the six witnesses only out of ten in the list is unsustainable - It is open to the complainant to amend his list of witnesses by giving up some of them making specific statement in writing- By merely refusing to examine some of the witnesses, who are already in the list, would not amount to giving up the witnesses. (Paras 12 to 14)
(ii) Criminal Procedure Code, 1973-Sections 202 & 397- Private complaint Enquiry under Section 202- Order issuing the process - Accused persons are at liberty to move the revisional court against the order of taking cognizance if according to them the impugned order was passed in violation of the law. (Para 15)
Result: Revision allowed.
JUDGMENT
K.C. Jagadeb Roy, J.- The petitioner had filed a complaint case bearing No.1 C.C. 14 of 1987 in the Court of the Sub-divisional Judicial Magistrate, Nowrangpur against the accused persons, who are the opposite parties in this case. The allegation in the complaint case was that they were responsible for the murder of the brother of the petitioner Kamal Lochan Naik. Since no action was taken by the police on a report filed before them the petitioner had filed this complaint petition before the S.D.J.M., Nowrangpur. In the complaint petition, the petitioner had nan1ed ten witnesses in support of his case.
2. The learned Magistrate after examining the complainant fixed up the enquiry under Section 202 of the Criminal Procedure Code and after examining six witnesses including the complainant as P.W. 6, had taken cognizance of an offence under section 301/149 of the Indian Penal Code by his order dated 22-2-1988.
3. Against the order dated 22-2-1988, the opposite parties preferred a Criminal Revision bearing No. 39 of 1988 in the court of the Sessions Judge, Joypore which was ultimately heard by the learned Additional Sessions Judge, Joypore who remanded the case to the S.D.J.M. directing the Magistrate to cause production of all the witnesses by the complainant named in the complaint petition and after exhausting their examination on oath to pass necessary orders in accordance with law.
4. After the case was remanded to the court of the S.D.J.M., the present petitioner (complainant) filed a Memorandum before him stating that he did not want to produce or examine the rest of the four witnesses named in the complaint petition and the complainant had thus closed his evidence. This is borne out in paragraph 5 of this revision petition filed by the complainant. The said memorandum is, however, not found in the L.C.R. The L.C.R. was called for an en perusal it is seen that on 31-5-88 the Sub-divisional Judicial Magistrate passed the following order:
"Complainant filed a memo that he has closed his evidence and does not want to examine any more witnesses given in the complaint petition and relies on the evidence of witnesses who were already examined. Heard put up later for orders. Later (31-5-1988). As per the observation of the Revisional Court in Criminal Revision No. 39/88 a direction has been given to the complainant to preduce all his witnesses named in the complaint petition for examination on oath in this enquiry. In the complaint petition names of 10 witnesses finds place, out of them six witnesses were already examined. On behalf of the complainant a memo has been filed today stating therein that the complainant does not want to produce and examine the rest of the witnesses named in the complaint petition as they are only formal witnesses---".
5. The S.D.J.M. finding a prima facie case against all the accused persons under Section 302/149, of the Indian Penal Code after examining those six witnesses out of the, list of
ten given in the complaint petition including the complainant as P.W. 6 directed issuance of non-bailable warrant against all the accused persons by order dated 31-5-1988.
6. Against the said order date 31-5-1988 passed in I.C.C. case No. 14 of 1987 by the S.D.J.M. Nowrangpur the accused person, namely, the present opposite parties again preferred another Criminal Revision numbered as Criminal Revision No. 43 of 1988 in the court of the Additional Sessions Judge, Jaypore urging that in spite of direction of the revisional court in the earlier order, the S.D.J.M. did not examine the remaining witnesses named in the complaint petition.
7. The Revisional Court again held that there was no discretion given to the complainant under Section 202 (2) of the Criminal Procedure Code; who was obliged to produce all his witnesses as the list given by him and further held that after exhausting the witnesses named in the complaint petition the Magistrate might proceed according to law. With those observations, the Addi
