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1981 Supreme(All) 152
High Court of Allahabad
Yashoda Nandan, V.N. Verma, JJ.
Dinesh Chand Sinha – Appellant
Versus
Rahmatallah – Respondent
Criminal Misc. Application No. 2018 of 1980
Decided On : Mar 02, 1981
R.B. Sahai, M.B. Saxena
The proviso to section 202(2) Cr. P.C. is mandatory and requires the Magistrate to examine all witnesses who are to be produced on behalf of the complainant before summoning the accused in cases exclusively triable by the Court of Session.
Headnote:
CRIMINAL PROCEDURE CODE, 1973 - SECTION 202(2) - SUMMONING OF ACCUSED IN CASES EXCLUSIVELY TRIABLE BY COURT OF SESSION - SCOPE OF PROVISO - MANDATORY REQUIREMENT TO EXAMINE ALL WITNESSES - INTERPRETATION.
Fact of the Case:
The applicant, Dinesh Chand Sinha, was summoned by the Magistrate under sections 147, 323, 325, and 307 IPC, despite the fact that the offense under section 307 IPC was exclusively triable by the Court of Session. The applicant challenged the Magistrate's order, arguing that the proviso to section 202(2) Cr. P.C. required the Magistrate to examine all witnesses before summoning the accused in such cases.
Finding of the Court:
The Court held that the proviso to section 202(2) Cr. P.C. is mandatory and requires the Magistrate to examine all witnesses who are to be produced on behalf of the complainant before summoning the accused in cases exclusively triable by the Court of Session. The Court further clarified that the Magistrate cannot insist upon the production of all witnesses cited by the complainant in the complaint before summoning the accused, but can summon the accused after examining some of the witnesses if the complainant makes it clear that the witnesses examined were the only ones on whom he intended to rely.
Issues: 1. Whether the proviso to section 202(2) Cr. P.C. is mandatory and requires the Magistrate to examine all witnesses before summoning the accused in cases exclusively triable by the Court of Session? 2. Whether the Magistrate can insist upon the production of all witnesses cited by the complainant in the complaint before summoning the accused?
Ratio Decidendi: The Court interpreted the proviso to section 202(2) Cr. P.C. strictly and held that it is mandatory for the Magistrate to examine all witnesses who are to be produced on behalf of the complainant before summoning the accused in cases exclusively triable by the Court of Session. The Court reasoned that any other interpretation would do violence to the mandatory provision contained in the proviso. However, the Court also clarified that the Magistrate cannot insist upon the production of all witnesses cited by the complainant in the complaint before summoning the accused, but can summon the accused after examining some of the witnesses if the complainant makes it clear that the witnesses examined were the only ones on whom he intended to rely.
Final Decision: The Court allowed the application under Section 482 Cr. P.C. and quashed the order passed by the Magistrate summoning the applicant and his co-accused under Sections 147, 323, 325, and 307 IPC. The Magistrate was directed to proceed with the case in light of the Court's observations.
V.N. Varma, J.
1. THIS case has come up before us for decision in the following circumstances.
2. OPPOSITE party no. 1 (Rahmatullah) filed a complaint against the applicant (Dinesh Chand Sinha) and five others under sections 147, 148, 323, 325 and 307 IPC in the Court of Special Judicial Magistrate, Jaunpur. In the complaint filed by him he gave out the names; of twelve witnesses whom he intended to examine in support of his case. The learned Magistrate examined opposite party no. 1 under section 200 Cr. P.C. and four persons, more, namely, Sheo Murat, Ambika, Aman Khan and Lala under section 202 Cr. P.C.. The learned Magistrate went through the evidence of these persons and summoned the applicant and his co-accused under sections 147, 323, 325 and 307 IPC. Admittedly, the offence under section 307 IPC is triable exclusively by the Court of Session. The applicant's case is that the Magistrate's order summoning him in the case was illegal and not in accordance with law and he, therefore, filed an application under section 482 Cr. P.C. for quashing the complaint filed against him. According to him, as the case against him was triable exclusively by the court of session, the Magistrate, in view of the proviso to section 202 (2) Cr. P.C., could not have summoned him unless he had called upon the complainant to produce all his witnesses and those witnesses had been examined by him. The application under section 482 Cr. P.C. came up for hearing before brother P. S. Gupta, J. The learned counsel for the applicant cited three cases of this Court before him in support of his contention that the proviso to sub-section (2) of section 202 Cr. P.C. was mandatory and, therefore, any non-complaince of this proviso would render the order passed by the Magistrate summoning the applicant illegal. These three rulings are (1) Hari Bans Tewari v. Hari Shanker, 1977 ACrR 187, Babu Ram v. State of U.P., 1978 ACrR 126, Mohan Singh v. Uttam Singh, 1980 Prayag Nirnai Prakashika page 246 (wrongly mentioned in the referring order as Mahabir v. State, 1980 Prayag Nirnai Prakashika page 248).
On the other hand, the learned counsel for opposite party so. 1 cited one case of this Court and another of Andhra Pradesh High Court in support of his contention that even if all the witnesses mentioned in the complaint have not been examined by the Magistrate, the order passed by the Magistrate summoning the accused in a case exclusively triable by a court of session would not be illegal. These two rulings are-Sheo Prasad v. State, 1977 ACrR 314, Musara Narayana Reddy v. Kanakanti Mal Reddy, 1977 CrLJ 1473.
3. ALL the cases relied upon either by the learned counsel for the applicant or by the learned counsel for opposite party no. 1 are single judge decisions. As there was difference of opinion between the Judges who decided the cases relied upon by the learned counsel for the applicant and the Judges who decided the cases relied upon by the learned counsel for opposite party no. 1 in regard to the scope of the provisions contained in the proviso to sub-section (2) of section 202 Cr. P.C., brother Gupta, J. referred the matter to a larger Bench for interpreting the scope of the proviso to sub-section (2) of section 202 Cr. P.C.. He further wanted that thereafter we should also decide the application under section 482 Cr. P.C. filed by the applicant.
4. SUB-sections (1) and (2) of section 202 Cr. P.C. read as follows : 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance ?r which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made- (a) Where it appears
