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ALLAHABAD HIGH COURT
V. D. CHATURVEDI, J.
Kallu Pal and Ors.
Versus
State of U.P. and Anr.
Crl. M. Appln. No. 450 of 2008
Decided On : 24-1-2008.
Section 202 - Examination of complainant - The court held that the formal witnesses such as doctor, Investigation Officer, Executive Magistrate, Police constable, etc. are not 'his witnesses' as mentioned in the proviso to sub-section(2) of Section 202, Cr. P. C. The complainant is bound to produce only those witnesses of facts whom he intends to produce in the Court of Session.
Fact of the Case:
The petitioners were alleged to have entered the house of the complainant, fired at her, and beaten her. However, the complainant escaped narrowly and did not sustain any firearm injury.
Finding of the Court:
The court found no illegality in the impugned order and dismissed the petition. It also provided that if the petitioners appear before the Court below within 14 days and apply for bail, their bail application may be considered and disposed of expeditiously.
Issues: The issue revolved around the interpretation of the proviso to sub-section(2) of Section 202, Cr. P. C. and the obligation of the complainant to produce witnesses in the Court of Session.
Ratio Decidendi: The formal witnesses, such as doctor, Investigation Officer, Executive Magistrate, Police constable, etc. are not 'his witnesses' as mentioned in the proviso to sub-section(2) of Section 202, Cr. P. C. The complainant is bound to produce only those witnesses of facts whom he intends to produce in the Court of Session.
Final Decision: The petition was dismissed, and the court provided an opportunity for the petitioners to apply for bail if they appear before the Court below within 14 days.
2. Learned counsel for the applicants contends that under the proviso to sub-section(2) of Section 202, Cr. P. C. it was incumbent upon the magistrate to call upon the complainant to produce all of his witnesses and to examine them on oath; that the magistrate, contrary to the said provisions of law, summoned the petitioners under Section 204, Cr. P. C. for the offence u/S. 307, IPC without examining the doctor and other witnesses.
3. The word "his witness" occurring in the proviso to sub-section(2) of Section 202, Cr. P. C. is of material
significance. The formal witnesses, such as doctor. Investigation Officer, Executive Magistrate, Police constable
etc. are not under the command of the complainant. They are not the witnesses of the complainants confidence.
Hence they are not "his witnesses". Thus the formal witnesses are not covered by the proviso to Section 202 (2),
Cr. P. C.
4. The complainant is bound to produce only those witnesses of facts whom he intends to produce in the Court of Session. The witnesses of fact who are not produced under Sections 200 or 202, Cr. P. C. cannot be produced by him, in the Court of Session. The complainant is not bound to produce those witnesses of fact, whose names are, though mentioned in the complaint but who are not intended to be produced by him in the Court of Session.
5. In view of what has been discussed above, I find no illegality in the impugned order. The petition is devoid of merit. It is therefore dismissed in limine.
6. Looking to the facts and circumstances of the case and that proceedings were initiated on a complaint and that no fire arm injury was sustained; by any person, it is provided that if the petitioners appear before the Court below within 14 days and apply for bail, their bail application may be considered and disposed of expeditiously by the Courts below.
Petition dismissed.
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