Madhya Pradesh High Court
Dr. Waseem Siddique vs State Of Madhya Pradesh on 2 December, 2005
Equivalent citations: 2006(2)MPHT230
Author: A.K. Saxena
Bench: A.K. Saxena
JUDGMENT A.K. Saxena, J.
1. The applicant has preferred this revision under Section 379/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code") against the order passed on 29-7-2004 by Additional Sessions Judge, Nasrullaganj District Sehore in Sessions Trial No. 2/04 for quashing the order of framing of the charges against the applicant.
2. The prosecutrix lodged one complaint on 12-8-2001 in Police Station Budhni and the crime was registered under Sections 376, 342 read with Section 34 of IPC and also under Section 3(1)(vii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. Even after recording of statements of witnesses, charge-sheet was not filed. Thereafter, a criminal complaint was filed by the prosecutrix but the same was dismissed by Judicial Magistrate, I Class, Budhni vide order dated 17-12-2002. Feeling aggrieved by this order, the prosecutrix preferred a criminal revision under Section 397 of the Code, which is still pending for final hearing. In the meanwhile, the non-applicant (Police Authority) registered a criminal case against applicant and other co-accused persons under Sections 182, 211 and 109 of IPC and filed a criminal complaint. This complaint case was committed to the Sessions Court vide order dated 10-12-2003 and the Sessions Court framed the charge under Section 109 of IPC against the petitioner.
3. Against the order of framing of charges, this revision has been preferred on the grounds that the revision petition filed by the prosecutrix is still pending in the Sessions Court and admitted for final hearing, therefore, the registration of the criminal case by the police authorities was not within their powers. The Magistrate had not jurisdiction to dismiss the complaint as the case was triable by the Court of Session. The order passed by the Court below suffers with material irregularity and is liable to be quashed.
4. On perusal of this revision petition, I found that some of the grounds raised with regard to the dismissal of earlier complaint, can not be a subject-matter of this revision. This revision has been filed only on this ground that the revision is pending in the Court and it has already been admitted for final hearing, therefore, the police had no authority to register this criminal case. In my opinion, this can not be a subject-matter of this revision. It is for the party to pray before the Revisional Court to issue stay order and that Court is at liberty to pass suitable orders and if there is no stay order, the police is at liberty to register a case or to file the complaint case before the Competent Court.
5. This revision petition has been filed against the order dated 29-7-2004 passed by Additional Sessions Judge, Nasrullaganj challenging the order of framing of charges but it has not been challenged that the Sessions Court has wrongly proceeded with the case even after taking this fact into consideration that the Committal Court has wrongly committed the case without recording statements of all the witnesses. In this revision petition, at least I am unable to find out such ground. This is a legal point on which the revision should have been filed. Though, the revision is not filed on abovementioned ground even then this Court can examine the record for the purpose of satisfying as to the correctness, legality or propriety of the finding of the order passed by learned Additional Sessions Judge.
6. The petitioner and other accused raised an objection before Sessions Court that the Committal Court failed to record the statements of all the witnesses as provided under the proviso of Sub-section (2) of Section 202 of the Code, therefore, the Sessions Trial can not be continued and for this the learned Counsel for the accused persons referred the cases of Bajji Kunjilal v. State of M.P. 1981 MPLJ 657 and Prayag Singh v. State of M.P. 1990 (II) MP Weekly Notes 96, but the learned Additional Sessions Judge found that the police has filed the private complaint, therefore, there was no need to record the statements of all the witnesses.
7. The proviso of Sub-section (2) of Section 202 of the Code provides that--- 'if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. In Bajji Kunjilal's case (supra), it has been laid down as follows:
In the instant case though the police had filed this Istagassa in the Court of Magistrate, the latter obviously had treated it as a "challan", i.e., police report, as is evident from the Magistrate's order-sheet, dated 10-5-1976 and treating the same as "challan" and accordingly ordered the issue of process immediately for appearance of the accused and on the appearance of the accused and after hearing the parties, had passed the orders of commitment on 13-3-1976. Thus, procedure followed by him clearly indicates that the Magistrate, treating the Istagassa as the "police report" and following the particular procedure for commitment of the case to the Court of Sessions only under Section 209(a) of the Code of Criminal Procedure, 1973, had actually committing the case to the Court of Sessions, the offence being in his opinion triable exclusively by the Court of Sessions. Naturally, therefore, he had not followed the procedure enjoined by Sections 202 and 208 of the Code which was necessary in this case of a "complaint". The Magistrate obviously was wrong in committing the case to the Court of Sessions by following the procedure meant for "police report" and by not following the procedure meant for "complaint" which alone should have been done. The commitment proceedings having been challenged in the Court of Sessions, the learned Additional Sessions Judge was, wrong in holding, vide his order dated 4-11-1976, that this Istagassa, filed by the police, before the Magistrate, would be deemed to be a "police report"-- entitling the Magistrate, therefore, to take the cognizance thereof under Section 190(1)(b) of the Code; and as such, this erroneous finding, being contrary to the Explanation of Section 2(d) of the Code, can not be sustained.
8. In another case Rampyare and Ors. v. Rampyari 2005(1) M.P.H.T. 89 = 2004(4) MPLJ 54, it was observed in Paras 14 and 15- as follows:
14. A perusal of proviso to Sub-section (2) of Section 202, Criminal Procedure Code reveals that Magistrate is required to call upon the complainant to produce his witnesses and examine them on oath. The duty of Magistrate in complaints about offences triable by Sessions Judge becomes onerous. The legislative intent behind the said proviso must be carried to its logical end. A person facing trial of a serious offence should not be taken by surprise.
15. But where complainant is satisfied with examination of only certain witnesses before committal of case it is not incumbent on committing Magistrate to record evidence of remaining witnesses. It is evident from the language of the proviso that it does not require all the prosecution witnesses to be examined. Only witnesses of the choice of complainant can be examined. The words "all his witnesses" under proviso to Section 202(2) do not refer literally to all prosecution witnesses in number rather to all complainant's witnesses to whom he considers material to prove his case.
9. Taking into consideration both the pronouncements of this Court, it would become clear that it is not at all necessary for the complainant to examine all the witnesses to prove his case. If he thinks that examination of certain number of witnesses would be sufficient, he can not be compelled to examine remaining witnesses. Now, considering both the pronouncements, I am of this view that although the complainant can not be forced to examine all the witnesses whose names have been referred in the list of witnesses and he can examine as many as witnesses to whom he considers material to prove his case but, at this juncture, I am of this opinion that if a complainant does not examine a particular set of witnesses under Section 200 or 202 of the Code, then those witnesses can not be examined during the course of trial in the Sessions Court as the accused can not be deprived of the earlier statements of the witnesses and he should not be taken by surprise. Therefore, the position emerges that the complainant is at liberty to examine any number of witnesses in the Court of Magistrate but he will be deprived of examining other witnesses during the trial in the Sessions Court if they were not examined under Section 200 or 202 of the Code.
10. In the instant case, the learned Additional Sessions Judge observed that since the complaint was filed by the police, therefore, there was no need to examine all the witnesses. This conclusion is totally erroneous in light of principles laid down in BajjiKunjilal's and Rampyare's cases (supra) and in these circumstances, though the revision has not been filed on this point, I am of the opinion that the order passed by the learned Additional Sessions Judge is not in accordance with legal position and deserves to be quashed.
11. Consequently, the revision petition is allowed and the order passed on 29-7-2004 by Additional Sessions Judge, Nasrullaganj is set aside and the proceedings of Sessions Trial is quashed and it is directed that the complaint case be remanded back to the committing Magistrate to adopt the proper procedure as provided under Section 200 (if not allowed) and 202 of the Code and thereafter, to pass the necessary orders in accordance with law. Petition is allowed accordingly.