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1989 Supreme(Ori) 338
IN THE HIGH COURT OF ORISSA
K.C. Jagadeb Roy, J.
RABISINGH NAIK - APPELLANT
Versus
ARJUN MAJHI AND OTHERS - RESPONDENT
Criminal Revision No. 510 of 1988
Decided On : 16-09-1989
Y.S.N. Murty and K.T. Rao, for the Appellant; P.V. Ramdas and B.K. Panda, for the Respondent
The Magistrate is bound to examine all the witnesses mentioned in the complaint petition before taking cognizance of the offence.
Headnote:
CRIMINAL PROCEDURE - SECTION 202 - ENQUIRY - WITNESSES - EXAMINATION - DISCRETION OF MAGISTRATE - SCOPE - SECTION 202(2) - PROVISO - MANDATORY - ALL WITNESSES TO BE EXAMINED - COMPLAINANT CANNOT GIVE UP WITNESSES WITHOUT AMENDING LIST - MAGISTRATE BOUND TO CALL UPON COMPLAINANT TO EXAMINE ALL WITNESSES MENTIONED IN COMPLAINT PETITION - REVISION BY ACCUSED MAINTAINABLE IF ORDER PASSED IN VIOLATION OF LAW.
Fact of the Case:
The Petitioner filed a complaint case against the accused persons for the murder of his brother. The Magistrate, after examining six witnesses, took cognizance of the offence u/s 301/149, I.P.C. The accused persons filed a revision petition challenging the order of cognizance. The revisional court remanded the case to the Magistrate directing him to examine all the witnesses named in the complaint petition. The Magistrate, however, closed the evidence after examining only six witnesses. The accused persons again filed a revision petition. The revisional court again remanded the case to the Magistrate for fresh disposal.
Finding of the Court:
The Magistrate was bound by the order of remand and had no option but to examine all the witnesses of the complainant mentioned in the complaint petition. The Magistrate's order closing the evidence after examining only six witnesses was, therefore, illegal.
Issues: Whether the Magistrate was required to examine all the witnesses mentioned in the complaint petition or could in law direct the issue of the process against the accused persons being satisfied after examining the six witnesses only out of ten in the list.
Ratio Decidendi: The proviso to Section 202(2) of the Code of Criminal Procedure is mandatory and requires the Magistrate to examine all the witnesses for the complainant on oath. Any other interpretation would be violative to the mandatory provision contained in the proviso referred to above.
Final Decision: The revision petition was dismissed, but the order of the revisional court remanding the case to the Magistrate was modified to the extent that it would not be necessary to re-examine the witnesses already examined in course of the enquiry.
JUDGMENT :
K.C. Jagadeb Roy, J. - The Petitioner had filed a complaint case bearing No. ICC 14 of 1987 in the court of the Subdivisional 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 named ten- witnesses in support of his case.
2. The learned Magistrate after examining the complainant fixed up the enquiry u/s 202, Code of Criminal Procedure and after examining six witnesses including the complainant as p. w. 6, had taken cognizance of an offence u/s 301/149, I.P.C. 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, Jeypore which was ultimately heard by the learned Additional Sessions Judge, Jeypore 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 for 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 and on perusal it is seen that on 31-5-1988 the Subdivisional Judicial Magistrate passed the following order:
Complainant filed a memo that he has dosed 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 produce all his witnesses named in the complaint petition for examination on oath in this enquiry. In the complaint petition names of 10 witnesses find place, out of them six witnesses were already examined. On behalf of the complainant a memo has been filed to-day 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 u/s 302/149, I.P.C. after examining these 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 dated 31-5-1988 passed in ICC case No. 14 of 1987 by the S. D. J. M., Nowrangpur the accused persons, 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, Jeypore 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 u/s 202(2) of the Code of Criminal Procedure, 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 Additional Sessions Judge again remanded the case back to the S. D. J.
