Orissa High Court
Govinda Acharya vs State Of Orissa And Another on 11 September, 2017
Equivalent citations: 2018 CRI. L. J. 1197, (2017) 179 ALLINDCAS 758 (ORI) (2018) 69 OCR 447, (2018) 69 OCR 447
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 2270 Of 2004
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with I.C.C. Case No.26 of 2004
pending on the file of J.M.F.C., Khallikote.
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Govinda Acharya ........ Petitioner
-Versus-
State of Orissa
& Another ........ Opposite parties
For Petitioner: - Mr. Jugal Kishore Panda
For State: - Mr. Prem Kumar Patnaik
Addl. Govt. Advocate
For Opp. Party No.2 - None
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 11.09.2017
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S. K. SAHOO, J.Heard Mr. Jugal Kishore Panda, learned counsel for the petitioner and Mr. Prem Kumar Patnaik, learned counsel for the State. None appears on behalf of the opposite party no.2.
The petitioner Govinda Acharya has filed this application under section 482 of the Criminal Procedure Code 2 challenging the impugned order dated 20.07.2004 passed by the learned J.M.F.C., Khallikote in I.C.C. case No. 26 of 2004 in taking cognizance of the offences under sections 323, 294, 354, 506 of the Indian Penal Code read with section 3(1)(iii)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter '1989 Act') and issuance of process against him.
The sole ground that has been taken by the learned counsel for the petitioner in challenging the impugned order is that, though the complainant-opposite party no.2 Rebati Nayak has named three witnesses in the complaint petition but during inquiry contemplated under section 202 of Cr.P.C., she has only examined two witnesses and since it is a case triable exclusively by the Court of Session and the mandates of the proviso to section 202(2) of Cr.P.C. have been flouted, therefore, the impugned order is not sustainable in the eye of law and it should be quashed and the matter be remanded to the learned Magistrate giving an opportunity to the complainant to examine the left out witness .
Learned counsel has relied upon the decision of this Court in case of Prafulla Kumar Samal -Vrs.- State of Orissa 3 reported in (2004) 27 Orissa Criminal Reports 304, wherein it is held as follows:-
"7. Now the question that raised in this case is whether the complainant is required to examine those witnesses again who had earlier been examined under Section 200, Cr.P.C. or not. A bare perusal of both the sections clearly indicate that when the complainant and his witnesses are examined under section 200, Cr.P.C., the substance of such examination shall be reduced to writing whereas in an inquiry under section 202, Cr.P.C. the evidence of the witnesses has to be recorded in full. In view of such difference in both the sections, in my considered view, even if the complainant and the witnesses are examined under section 200, Cr.P.C., if an inquiry under section 202, Cr.P.C. is taken up, the complainant and witnesses of his choice are again required to be examined and, their statements on oath are required to be recorded.
8. The learned Magistrate undisputedly has not followed this procedure. I, therefore, have no other option except to quash the order and direct the learned Magistrate to take up the inquiry under section 202, Cr.P.C. afresh calling upon the complainant to examine all witnesses of her choice, even if such witnesses had been examined earlier under section 200, Cr.P.C. and 4 shall thereafter proceed with the case in accordance with law."
Learned counsel for the petitioner further placed reliance upon the decision of the Hon'ble Supreme Court in case of Rosy -Vrs.- State of Kerala reported in (2000) 18 Orissa Criminal Reports (SC) 490 wherein it is held as follows:-
"45...............................................................
Hence, what emerges from the above discussion is:
I. (a) Under Section 200 Magistrate has jurisdiction to take cognizance of an offence on the complaint after examining upon oath the complainant and the witnesses present;
(b) When the complaint is made in writing by a public servant acting or purporting to act in discharge of his official duties, the Magistrate need not examine the complainant and the witnesses;
(c) In such case Court may issue process or dismiss the complaint.
II. (a) The Magistrate instead of following the procedure stated above may, if he thinks fit, postpone the issue of process and hold inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding against the person accused. Such inquiry can be held by him or by the police officer or by other person authorised by him.
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(b) However, where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. At that stage, proviso further gives mandatory directions that he shall call upon the complainant to produce all his witnesses and examine them on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complainant under Section 204(2) before issuance of the process.
(c) The irregularity or non-compliance thereof would not vitiate the further proceeding in all cases. A person complaining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later."
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To adjudicate the issue involved in the case, it is to be first seen whether the offence section 3(1)(iii)(xi) of the 1989 Act is triable exclusively by the Court of Session for following the procedure laid down under the proviso to section 202(2) of Cr.P.C. In the case of Gangula Ashok -Vrs.- State of A.P. reported in (2008) 18 Orissa Criminal Reports 364, it is held as follows:-
"9. Thus the Court of Session is specified to conduct a trial and no other Court can conduct the trial of offences under the Act. Why the Parliament provided that only a Court of Session can be specified as a Special Court? Evidently the legislature wanted the Special Court to be Court of Session. Hence the particular Court of Session, even after being specified as a Special Court, would continue to be essentially a Court of Session and designation of it as a Special Court would not denude it of its character or even powers as a Court of Session. The trial in such a Court can be conducted only in the manner provided in Chapter XVIII of the Code which contains a fasciculus of provisions for 'Trial before a Court of Session."
Therefore, section 3(1)(iii)(xi) of the 1989 Act is triable exclusively by the Court of Session. The Court of Session empowered specially under section 14 of the 1989 Act cannot try 7 the cases committed to it as per the warrant procedure though some offences under Indian Penal Code are otherwise triable according to warrant procedure as laid down under chapter XIX of Cr.P.C. The procedure prescribed for trying the sessions cases under chapter XVIII of Cr.P.C. has to be followed.
Section 202 of Cr.P.C. deals with postponement of issue of process against the accused. Postponement is deferment or to suspend. What is deferred or suspended by the Magistrate for the time being is the issue of process and not the order of taking cognizance. Proviso to sub-section (2) of section 202 Cr.P.C. mandates for a Magistrate to call upon the complainant of an exclusively sessions triable case to produce all his witnesses and examine them on oath.
In case of Adimul Hossain Khan -Vrs.- State of Orissa reported in (2007) 38 Orissa Criminal Reports 716, it is held that during enquiry under section 202 Cr.P.C., the choice being that of the complainant, he may or may not examine himself, the consequence of which shall be considered by the Court during trial. The effect of non-examination of a particular witness is a matter, which comes for scrutiny during trial. Similar would be the situation in case of non-examination of the complainant. The proviso to this sub-section makes it 8 mandatory for a Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The Magistrate cannot compel the complainant to produce a particular witness including himself for his examination under section 202 Cr.P.C.
In case of Jaladhar Das -Vrs.- Sridhar Das reported in (1988) 1 Orissa Criminal Reports 466, it is held that there is no warrant in the language of the proviso to identify the words "all his witnesses" with that of "all the witnesses in the complaint petition". "His witnesses" would necessarily imply the choice in the complainant to choose his witnesses. It would not stand to reason to hold the proviso as restricting the complainant choice only to examine the witnesses named in the complaint petition since nothing would prevent him to even examine some more and so also there is no compulsion in the proviso that he must examine all the witnesses named in the complainant. It may so happen that he does not want to examine some of the persons named as witnesses or that the presence of some named as witnesses cannot be obtained due to irremediable reasons. It would be a travesty of justice to yet compel the complainant to examine all such witnesses on the threat of his complaint being otherwise dismissed.
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In case of Charan Rout -Vrs.- Prafulla reported in (1996) 11 Orissa Criminal Reports 322, a Division Bench of this Court was called upon to decide as to whether the expression "all his witnesses" includes the complainant, it was answered in the negative and it was held that the Magistrate has no statutory obligation to call the complainant to examine himself as a witness. He is only required to call upon the complainant to produce all his witnesses and examine them on oath. He cannot force the complainant to examine himself. The expression "all his witnesses" appearing in the proviso to sub- section (2) of section 202 has to be construed to mean "all witnesses which he chooses to examine". Any other construction would lead to absurd results and go against the spirit of the enactment. If the complainant comes to know that one of the named witnesses has been gained over and is likely to give is a different version that what is reality, it would be hazardous and suicidal for him to produce the concerned person for tendering evidence, knowing full well the consequences. If the complainant chooses to exclude any person named as a witness, he should file a memorandum in the Court clearly indicating that he does not want to examine any particular person as a witness though named in the complaint petition.
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In case of Shivjee Singh -Vrs.- Nagendra Tiwary reported in (2010) 46 Orissa Criminal Reports (SC) 798, it is held that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issuance of process. The word "all" appearing in proviso to section 202(2) is qualified by the word "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issuance of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process. It is further held that examination of all the witnesses cited in the complaint or whose names were disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint.
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Thus, in a complaint case, the complainant is not bound to examine himself during inquiry under section 202 of Cr.P.C. after recording of his initial statement under section 200 of Cr.P.C. However, if the substance of his examination is recorded under section 200 of Cr.P.C. as required in the said section and the complainant feels necessity to give a detail account of the incident to prove his case, he may choose to examine himself in the inquiry under section 202 of Cr.P.C. and narrate the incident in detail. Similarly in a complaint case where the offence complained of is triable exclusively by the Court of Session, the complainant is also not bound to examine all the witnesses named in the complaint petition and he is at liberty to examine any of them and decline the rest by filing a memo. The Magistrate cannot compel the complainant to examine himself or all or any of his witnesses named in the complaint petition. The provision is mandatory in the sense that only the witnesses whose statements are recorded either under section 200 of Cr.P.C. or section 202 of Cr.P.C. will be permitted to be examined before the Court of Session during trial otherwise it will surprise the accused and he will be seriously prejudiced during trial in absence of the previous statements of such witnesses. The statements so recorded will be utilized as 12 previous statements during trial like 161 statements in police cases and the same can be confronted to prove contradictions or omissions in view of the provision under section 145 of the Evidence Act. However, even though the witnesses are not examined during inquiry under section 202 of Cr.P.C. by the complainant, the trial Court has got ample power to examine them invoking its power under section 311 of Cr.P.C. as Court witnesses in the interest of justice even on the petition filed by the complainant, if the evidence of such witnesses appear to the Court to be essential to the just decision of the case.
The observation of the learned Single Judge of this Court in the case of Prafulla Kumar Samal (supra) that even if the complainant is examined under section 200 of Cr.P.C., if an inquiry under section 202 of Cr.P.C. is taken up, he is required to be examined again, is per incuriam having been rendered without noticing the precedent set up by the Division Bench of this Court in the case of Charan Rout (supra).
The learned counsel for the petitioner has failed to point out how prejudice is caused to the petitioner for non- examination of one witness named in the complaint petition. Therefore, merely because the complainant has named three witnesses in the complaint petition, out of which he has 13 examined only two, that cannot be said to be a non-compliance of the proviso to sub-section (2) of section 202 of the Code which would render the impugned order illegal. The choice is that of the complainant-opposite party no.2 and since she has preferred not to examine one of the witnesses named in the complaint petition, the issuance of process against the petitioner cannot be quashed on that ground. Therefore, I am not inclined to interfere with the impugned order.
Accordingly, the CRLMC application being devoid of merits, stands dismissed.
The petitioner is at liberty to raise all other available points at the time of framing of charge or during trial.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 11th September, 2017/Sisir