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1996 Supreme(Ori) 214
IN THE HIGH COURT OF ORISSA
D.M. Patnaik, J.
SRIBATSA KUMAR BARA ALIAS SRIBATSA BARA AND OTHERS - APPELLANT
Versus
SABITRI KARAN - RESPONDENT
Criminal Miscellaneous Case No. 2449 of 1994
Decided On : 12-12-1996
S.S. Das, for the Appellant; B.S. Mishra, for the Respondent
In a complaint case where the offence alleged is exclusively triable by the Court of Session, the Magistrate is bound to examine all the material witnesses named in the complaint petition. The choice of examining witnesses is not left to the complainant.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 202(2) PROVISO - EXAMINATION OF WITNESSES - MANDATORY - ALL MATERIAL WITNESSES TO BE EXAMINED - CHOICE OF EXAMINING WITNESSES NOT LEFT TO COMPLAINANT.
Fact of the Case:
Petitioners challenged the order of the Judicial Magistrate issuing processes against them in a complaint case for an offence under Section 395 of the Indian Penal Code (IPC). The Magistrate had examined only five out of six witnesses during the enquiry under Section 202 of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The court held that the Magistrate was bound to examine all the material witnesses named in the complaint petition. The choice of examining witnesses was not left to the complainant. Non-examination of a material witness would be a serious defect and could prejudice the accused.
Issues: 1. Whether the Magistrate was obligated to stay the proceeding in the complaint case until the police submitted a final report. 2. Whether the Magistrate should have examined all the six witnesses named by the complainant as per the mandatory provision of proviso (2) to Section 202 of the CrPC.
Ratio Decidendi: 1. The court held that the Magistrate was not required to stay the proceeding in the complaint case merely because the complainant had lodged an FIR with the police. If the Magistrate was satisfied that there was no progress in the investigation, the question of staying the proceeding did not arise. 2. The court interpreted the language of proviso (2) to Section 202 of the CrPC to mean that the Magistrate was bound to examine all the material witnesses named in the complaint petition. The choice of examining witnesses was not left to the complainant. The complainant could, however, decline to examine any witness for a tenable reason, such as the evidence of that witness being of a formal nature that would not help disclose the occurrence alleged.
Final Decision: The court allowed the revision petition and set aside the impugned order of the Magistrate. The case was remitted back to the Magistrate to ascertain from the complainant if the witness not examined was a material witness and to examine the witness if the complainant did not decline to do so for any reason. The stay granted earlier was vacated.
JUDGMENT :
D.M. Patnaik
1. The petitioners, accused persons in a complaint case for offence u/s 395, IPC, assail the order dated 28-11-1994 of the Judicial Magistrate, First Class, Baramba issuing processes following an enquiry u/s 202 of the Code of Criminal Procedure (for short, 'the Code'). The allegation was that the petitioners on 23-1-1994 in the dead of the night snatched away gold necklace from the person of the opposite party and removed a sum of Rs. 1200/- from her house. During the enquiry u/s 202 of the Code, the Magistrate examined five witnesses out of the six. This is challenged by the petitioners on the ground that it was mandatory on the part of the Magistrate to examine all the six witnesses.
2. Mr. S. S. Das, learned counsel for the petitioner raised two contentions in support of his case. Firstly, it was submitted that since the opposite party had lodged an FIR with the police it was obligatory on the part of the Magistrate to stay the proceeding in the complaint case until police submitted a final report; and secondly the Magistrate should have examined all the six witnesses named by the complainant as per the mandatory provision of proviso (2) to Section 202 of the Code. In support of the second contention Mr. Das relied on two decisions of the Division Bench of this Court in the cases of Goku ananda Mohanty v. Muralidhar Malik 47 (1979) CLT 244, and Dhaneswar Behara v. State of Orissa 1987 (2) OLR 562 and a single Bench decision in the case of Omprakash Saha Vs. Manmohan Mohanty and Another, .
3. So far as the first contention is concerned, the impugned order indicates that the complainant herself stated that the police did not take any action for which she filed the complaint case. I may say that if the Magistrate was satisfied that there was no progress in the investigation question of staying the proceeding in the complaint case did not arise. Therefore, this contention of Mr. Das cannot be accepted.
However, the second point so far it relates to examination of all the witnesses needs consideration.
4. The language employed in Sub-section (2) proviso to Section, 202 of the Code is plain in its meaning. It prescribes that, in a complaint case if the Magistrate is satisfied that the offence alleged is an offence exclusively triable by the Court of Session, the Magistrate is bound to examine all the witnesses for the complainant. The choice of examining any number of witnesses as per the plain reading of the language of the section itself is not left with the complainant.
Mr. B. S. Mishra, learned counsel for the opposite party submitted that the complainant is free to examine his own witnesses and the Magistrate cannot compel him to examine all the witnesses. In support of this connection Mr. Mishra relied on three single Bench decisions in the cases of Dinabandhu Das and Ors. v. Batakrushna Das and Ors. :72 (1991) CLT 518, Brajabandhu Mohapatra and Ors. v. Trinath Rout :(1996) 10 OCR 538 and the decision reported in Rabindra Prasad Singh and Others Vs. Smt. Lila Bala Singh and Another, .
5. In all the three decisions cited by Mr. Mishra it has been held that 'all the witnesses' would mean, the witnesses which the complainant wants to examine. But in my view, at the first instance choice should not be left to the complainant unless the complainant declines to examine any witness for any reason and informs the Court accordingly. To read the language of the Code the way it is submitted by Mr. Mishra would go against the intent and purpose of the section. Secondly this is in direct conflict with the proposition laid down by the two Division Bench cases referred to above. I may point out that in none of these Single Bench decisions of this Court, the two Division Bench cases were brought to the notice on the point. In the case of Gokulananda Mohanty (supra) the Division Bench after elaborate discussion of the scope of Section 202, Sub-section (2) proviso held as follows:
"...But the setting in which the pro iso to S
