Punjab-Haryana High Court
M/S Raghbir Singh & Sons vs State Of Haryana And Another on 30 May, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No. M-15461 of 2012
Date of decision: May 30, 2012
M/s Raghbir Singh & Sons
.. Petitioners
Vs.
State of Haryana and another
.. Respondents
Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. G.C. Shahpuri, Advocate for the petitioners. A.N. Jindal, J
The petitioners have sought quashing of the complaint (Annexure P/1) under Section 138 of the Negotiable Instruments Act (herein referred as, 'the Act') and the summoning order dated 27.4.2009 (Annexure P/2) and all the subsequent proceedings arising out of the said complaint.
The sole question to be determined in this case is, "whether non compliance of Section 204 (2) of Cr. P.C. renders the summoning order as invalid and deserves quashing?"
In this regard, before proceeding to decide the question into controversy, we need to reproduce Section 204 of Cr.P.C. which reads as under :-
204. Issue of process :- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be :-
(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.Crl. Misc. No. M-15461 of 2012 -2-
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
The complainant while filing the complaint placed reliance on his own statement as well as six documents Ex.C-1 to Ex.C-6, which are referred to in the complaint and later on tendered by him besides himself as a witness. Annexure P/3 also reveals that the complainant filed the following list of witnesses :-
1. Complainant New Arvind Timbers Raghbir Singh and sons
2. Complaint under Section 138 of the Negotiable Instruments Act,, Police Station City, Jagadhri.
3. Nandita Kaushik, Judicial Magistrate Ist Class, Jagadhri.
From the aforesaid, it appears that it is a complaint case and no complete list of witnesses has been filed.
Now coming to the legal question, it may be observed that the purpose of introduction of Section 204 (1) (A) in the old Code and 204 (2) in the Amended Code of 1973, was to inform the accused at the earliest point of time of the persons, who are likely to give evidence against him. Section 204 (2) of the Code only envisages that no summons or warrants shall be issued against the accused unless list of witnesses has been filed by the prosecution, but this does not mean that the complaint could be quashed for non filing of the list of witnesses. If the case is at the last stage and the accused has already examined the witnesses and no prejudice has been caused to him, as also in case when the case is at the initial stage, the accused is not rendered as prejudiced for non filing of the list of witnesses. At the most, the court could direct the accused to file list of witnesses before issuance of process. However, in case the process is issued, even then, the same is not rendered void for non compliance of Section 204 (2) of the Code, if the complaint itself speaks about the witnesses to be examined and the documents to be proved at the time of evidence. In those cases also, Crl. Misc. No. M-15461 of 2012 -3- the non compliance of this procedural provisions of law, being not mandatory, do not vitiate the trial. Earlier while interpreting Section 204 (1) (A) of the Code, the Calcutta High Court in case Ali Khan v. Amir Khan, AIR 1957 Calcutta 332 observed as under :-
"It is argued on behalf of the petitioners that a person whose name is not included in the list filed under S. 204 (1-A) cannot be examined during the trial of the case, and the Magistrate in this instance erred in allowing the examination of a witness who had not been named in the list. I think this represents an extreme point of view which I am not prepared to accept. All that S. 204 (1-A) is designed to serve is that the accused should be apprised at the earliest point of time of the persons who are likely to give evidence against him. As a matter of fact no summons or warrant shall issue against an accused unless a list of prosecution witnesses has been filed; but that does not mean and imply that in no circumstances can a person who is not included in the list be permitted to be examined in the course of the trial. If that was the real intention then one would expect a clearer and firmer expression of the view by the Legislature than what is to be found in S. 204 (1-A) of the Code. Moreover, if this extreme contention prevailed, that would have the effect of abolishing S. 244 (1) of the Code of Criminal Procedure. That section provides as I have seen that the Magistrate will take all such evidence as may be produced in support of the prosecution. The section does not say that the evidence must be evidence of only those persons whose names appear in the list of witnesses filed under S. 204 (1-A). As regards the value to be attached to the evidence of a person whose name was not included in the list, it has to be left to the criticism of the party affected that such evidence should not be believed; but that is a matter affecting the credibility of evidence. The question here is different and that concerns the right and duty of the Court to allow examination of a person as a witness whose name has not been included in the list."
Similarly, Kerala High Court in case Madhavan Nambiar and others v. Govindan and another 1982 Crl. L. J. 683 while interpreting Section 204 (2) of the Code clearly laid down that failure to submit list of witnesses does not necessarily vitiate the subsequent proceedings when there is mention of names of the witnesses in the complaint itself. Her Lordship in Madhavan Nambiar's case (supra) observed as under :-
Crl. Misc. No. M-15461 of 2012 -4-"Mention in the complaint itself of the names of witnesses, would be sufficient compliance of S. 204 (2) and that non compliance of the provision does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in prejudice to the accused. The purpose of S. 204 (2) is to convince the court that there are proper materials to support the case and to enable the accused to know in advance what are the materials that the complainant is likely to produce against him. If this purpose is served otherwise, the omission to file a list of witnesses will not vitiate the proceedings."
Similar observations were made by the Bombay High Court in case Pramila Mahesh Shah v. Employee State Insurance and another, 2002 Crl. L. J. 2454, wherein it was observed as under :-
"The procedural laws are hand maid (sic) of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions. Therefore, even if it was to be held that the provisions of Section 204 (2) are mandatory, that, by itself would not vitiate the issue of process or the jurisdiction of the Court and where the matter is at the initial stage, directions can be given to furnish the copy of list of witnesses, if any before the proceedings actually commenced. The stage of the proceedings is relevant to determine the prejudice if any, caused to the accused. In the present case, complaint was filed against petitioner for failing to pay the contribution in respect of employee of factory/ establishment and the substantive proceedings had not yet started. Therefore, in the circumstances, directions to the complainant to supply copy of witnesses, if any within a period of four weeks from the receipt of the copy of the order by the trial Court would be considered as sufficient compliance of Section 204 (2) of Cr.P.C."
The learned counsel for the petitioners has placed reliance on the judgment delivered by the Karnataka High Court in case Fakirappa vs. Shiddalingappa 2002 (1) RCR (Criminal) 735 which also does not help the petitioners and provide the court a ground for quashing the order of summoning. Actually, violation of Section 204 (2) does not render the order of summoning void, but it only prohibits the court not to issue summon or warrant against the accused under sub-section (1) of Section 204 until the Crl. Misc. No. M-15461 of 2012 -5- list of prosecution witnesses had been filed. As such, the judgment over which the petitioner has placed reliance does not in any way make out a case for the petitioner that any non compliance of the provisions could be a ground to quash the complaint.
To buttress the view point as recorded by this Court, the reliance could be placed upon the judgment delivered in case Sunil Vassudev Pednekar v. Bicholim Urban Co-operative Bank Ltd. 2006 Crl. L. J. 3114 wherein it was observed that Section 204 (2) is meant to safeguard the interest of the accused person to save him against unscrupulous litigants. The insistence of filing a list prosecution witnesses before the issue of process to the accused is mainly for that purpose. In other words, the intention is to assure that no person is summoned to stand his trial without the Court first satisfying itself that there is sufficient ground to issue a summons or a warrant, as the case may be, against the accused persons and about the witnesses to be produced in support of the case of the complainant. However, the law went to the extent that the accused could also file an additional list of witnesses and Section 204 of the Code also does not debar the Court to issue a direction in case no list has been filed and so also does not debar the complainant to file list of witnesses or second list of witnesses, if he had not so filed or if he wanted to file second list. The Court further provided that sub-section (2) of Section 204 of the Code does not override Section 254 (1) of the Code and imposes a duty on a Magistrate to take evidence as may be produced in support of the prosecution.
While interpreting provisions of Section 204 (2) of the Code, this Court in case Isham Singh vs. Tara Devi 2007 (4) RCR (Criminal) 79, took the view against the petitioner while observing as under :-
".... It was then argued by the learned counsel for the petitioner that the impugned summoning is invalid for want of compliance with the provision of Section 204 (2) of the Code of Criminal Procedure.
The plea is devoid of merit. All that Section 204 (2) provides is that the issuance of process is barred if the list of witnesses is not filed. It is not the consideration of preliminary evidence and summoning on the basis thereof which is barred. The plea shall stand repelled accordingly."Crl. Misc. No. M-15461 of 2012 -6-
While taking the case from another angle, Section 204 of the Code is divided into three parts. The first part relates to the application of mind by the court before issuing the process; second part elaborates the procedure of issuing process in summon cases filed otherwise then on a complaint. Sub-section (3) of this section deals with the complaint case wherein it is mentioned that every summon or warrant issued under sub- section (1) shall be accompanied by a complaint. Sub-sections (2) and (3) of this Section are quite independent of each other. As such, it could be safely stated that issuance of process in a complaint case do not mandate the furnishing of list of witnesses.
Thus, while summing up the law regarding Section 204 (2) and (3) of the Code of Criminal Procedure, I observe as under :-
1. The purpose behind sub-section (2) of Section 204 of Cr.P.C. is to apprise the accused about the allegations against him and what evidence the complainant wanted to lead in support of his case.
2. Said section neither bars the court to direct the complainant to furnish list of witnesses before process is issued nor at any later stage i.e. after examination of the witnesses as he had already cross examined them without any protest or objection and the element of prejudice could not be detected because he had full opportunity to confront and cross-examine them. Non compliance of Section 204 (2) of the Code may render the process ineffective and invalid but it does not invalidate the order of summoning.
3. The provisions of sub-section (2) of Section 204 of the Code does not override the provisions of Section 254 of the Code, which imposes a duty on a Magistrate to take all evidence as may be produced in support of the prosecution.
4. The stage of the proceedings is relevant to determine the prejudice, if any, caused to the accused.
Notwithstanding the fact that provisions of Section 204 Crl. Misc. No. M-15461 of 2012 -7- (2) of the Code are mandatory, that by itself would not vitiate the issue of process or the jurisdiction and authority of the court to issue directions to furnish copy of the list of witnesses when the matter is at the initial stage.
5. The procedural laws are hand maid of administration of justice and question of prejudice is of paramount consideration in respect of the breach of procedural provisions.
6. When the complaint contains the names of the witnesses and the entire evidence over which reliance has been placed, then in that case, furnishing of list of witnesses becomes insignificant as the issuance of process in a complaint case is governed by sub-section (3) of Section 204 of Cr.P.C. which requires that summon or warrant as issued, as the case may be, would be accompanied by the complaint.
For the aforesaid reasons, the present petition is dismissed in limine.
In order to enlighten the subordinate courts about the whole law relating to sub-sections (2) and (3) of Section 204 of the Code of Criminal Procedure, this judgment may be circulated to all the Officers in the States of Punjab, Haryana and U.T. Chandigarh.
(A.N. Jindal) Judge May 30, 2012 deepak