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2017 Supreme(Ori) 860
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Govinda Acharya - Petitioner
Versus
State of Orissa & Another - Opposite parties
CRLMC No. 2270 Of 2004
Decided On : 11-09-2017
For the Petitioner: Mr. Jugal Kishore Panda
For the State : Mr. Prem Kumar Patnaik
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 202 - Postponement of issue of process against the accused - Postponement is deferment or to suspend - What is deferred or suspended by the Magistrate for the time being is the issue of process and not the order of taking cognizance - Proviso to Sub-Section (2) of Sec. 202, Cr.P.C. mandates for a Magistrate to call upon the complainant of an exclusively sessions triable case to produce all his witnesses and examine them on oath.
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 202 - In a complaint case the complainant is not bound to examine himself during inquiry u/s.202 of Cr.P.C. after recording of his initial statement u/s.200, Cr.P.C.- If the substance of his examination is recorded u/s.200, Cr.P.C. as required in the said Section and the complainant feels necessity to give a detail account of the incident to prove his case, he may choose to examine himself in the inquiry u/s.202, Cr.P.C. and narrate the incident in detail - Further stated.
In a complaint case where the offence complained of is triable exclusively by the Court of Session, the complainant is also not bound to examine all the witnesses named in the complaint petition and he is at liberty to examine any of them and decline the rest by filing a memo. The Magistrate cannot compel the complainant to examine himself or all or any of his witnesses named in the complaint petition. The provision is mandatory in the sense that only the witnesses whose statements are recorded either under Section 200 of Cr.P.C. or Section 202 of Cr.P.C. will be permitted to be examined before the Court of Session during trial otherwise it will surprise the accused and he will be seriously prejudiced during trial in absence of the previous statements of such witnesses. The statements so recorded will be utilized as previous statements during trial like 161 statements in police cases and the same can be confronted to prove contradictions or omissions in view of the provision under Section 145 of the Evidence Act. However, even though the witnesses are not examined during inquiry under Section 202 of Cr.P.C. by the complainant, the trial Court has got ample power to examine them invoking its power under Section 311 of Cr.P.C. as Court witnesses in the interest of justice even on the petition filed by the complainant, if the evidence of such witnesses appear to the Court to be essential to the just decision of the case.
JUDGMENT :
S.K. SAHOO, J.
1. The petitioner Govinda Acharya has filed this application under section 482 of the Criminal Procedure Code challenging the impugned order dated 20.07.2004 passed by the learned J.M.F.C., Khallikote in I.C.C. case No. 26 of 2004 in taking cognizance of the offences under sections 323, 294, 354, 506 of the Indian Penal Code read with section 3(1)(iii)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter ‘1989 Act’) and issuance of process against him.
2. The sole ground that has been taken by the learned counsel for the petitioner in challenging the impugned order is that, though the complainant-opposite party no.2 Rebati Nayak has named three witnesses in the complaint petition but during inquiry contemplated under section 202 of Cr.P.C., she has only examined two witnesses and since it is a case triable exclusively by the Court of Session and the mandates of the proviso to section 202(2) of Cr.P.C. have been flouted, therefore, the impugned order is not sustainable in the eye of law and it should be quashed and the matter be remanded to the learned Magistrate giving an opportunity to the complainant to examine the left out witness.
3. Learned counsel has relied upon the decision of this Court in case of Prafulla Kumar Samal Vrs. State of Orissa reported in (2004) 27 Orissa Criminal Reports 304, wherein it is held as follows:-
“7. Now the question that raised in this case is whether the complainant is required to examine those witnesses again who had earlier been examined under Section 200, Cr.P.C. or not. A bare perusal of both the sections clearly indicate that when the complainant and his witnesses are examined under section 200, Cr.P.C., the substance of such examination shall be reduced to writing whereas in an inquiry under section 202, Cr.P.C. the evidence of the witnesses has to be recorded in full. In view of such difference in both the sections, in my considered view, even if the complainant and the witnesses are examined under section 200, Cr.P.C., if an inquiry under section 202, Cr.P.C. is taken up, the complainant and witnesses of his choice are again required to be examined and, their statements on oath are required to be recorded.
8. The learned Magistrate undisputedly has not followed this procedure. I, therefore, have no other option except to quash the order and direct the learned Magistrate to take up the inquiry under section 202, Cr.P.C. afresh calling upon the complainant to examine all witnesses of her choice, even if such witnesses had been examined earlier under section 200, Cr.P.C. and shall thereafter proceed with the case in accordance with law.”
4. Learned counsel for the petitioner further placed reliance upon the decision of the Hon’ble Supreme Court in case of Rosy Vrs. State of Kerala reported in (2000) 18 Orissa Criminal Reports (SC) 490 wherein it is held as follows:-
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Hence, what emerges from the above discussion is:
I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present;
(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses;
(c) In such case Court may issue process or dismiss the complaint.
II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him.
(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, the direction of investigation by the police officer is not
