Allahabad High Court
Molvi Habibur Rahman Faizi And Ors. vs State Of U.P. And Anr. on 21 May, 1997
Equivalent citations: 1998CRILJ2345
Author: O.P. Garg
Bench: O.P. Garg
ORDER O.P. Garg, J.
1. This is an application under Section 482 of the Code of Criminal Procedure with the prayer that the order dated 6-7-1996 passed by Chief Judicial Magistrate, Mau in complaint case No. 252 of 1995 be quashed and further proceedings in the case be stayed.
2. Counter and rejoinder affidavits have been exchanged. Heard Sri V. P. Srivastava, learned Counsel for the applicants, Sri Viresh Misra, learned Counsel for the opposite party No. 2 as well as learned A.G.A.
3. Briefly stated, the facts of the case are that the opposite party No. 2, namely, Sri Mushtaq Ahmad filed a complaint in the court of Chief Judicial Magistrate, Mau against the present applicants for summoning them under Sections 409/420/467/468, I.P.C. The complainant was a teacher in a School known as Madarsa Faize-Aam in Mohalla Maunath Bhanjan PS. Kotwali, district Mau. The applicants were the Manager, Head Master, Teacher and Accountant in the said School, the complainant-opposite party had gone to Saudi Arbia in the year 1985 for higher studies. On his return in the year 1988, he came to know that the applicants had fraudulently withdrawn a sum of Rs. 6368/- on account of salary and a sum of Rs. 28,000/- as Dearness Allowance payable to the complainant by making his forged signatures. On the complaint dated 20-3-1991 filed: by the opposite party No. 2, the Chief Judicial Magistrate, Mau, after taking into consideration the evidence recorded under Sections 200 and 202 Cr.P.C., summoned the applicants in the aforesaid complaint case under Sections 406/409/420/467/468, I.P.C. Against the summoning order, the applicants filed a Criminal Misc. Petition No. 14761 of 1995 under Section 482, Cr.P.C. The summoning order was set aside by order dated 15-3-1995 in proceeding u/S. 482, Cr.P.C. The opposite party complainant went before Hon'ble Supreme Court by filing a Special Leave Petition No. 2058 of 1995 (Appeal No. 122 of 1996), which was allowed on 31-1-96. The order passed by this Court was set aside and it was directed that the concerned Magistrate shall proceed with the complaint in accordance with law. Thereafter, learned Chief Judicial Magistrate Mau issued processes against the applicants to procure their attendance in the complaint case. The applicants again filed another Criminal Misc. application No. 953 of 1996, u/S. 482, Cr.P.C. against the order passed by learned Chief Judicial Magistrate, whereby prayer of the applicants that they be released on personal bonds in accordance with the provisions of Section 88, Cr.P.C. was rejected. This application was dismissed on 26-3-1996. It appears that the applicants appeared before the court below and moved a number of applications, which were rejected.
4. In the present application, the learned Counsel for the applicants canvassed only one point that the case cannot proceed against the applicants as the compliance of the provision of Section 204(2), Cr.P.C. had not been made, as the list of the prosecution witnesses had not been filed before issue of summons to the applicants. This submission of the learned Counsel for the applicants has been seriously repelled on behalf of the learned Counsel for the opposite party No. 2.
5. Sub-section (2) of Section 204, Cr.P.C. provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of prosecution witnesses has been filed. Learned Counsel for the applicants pointed out that this provision is mandatory in nature and since the complainant-opposite party had not filed the list of the prosecution witness, issuance of summons/processes against the applicants was illegal. On behalf of opposite party No. 2 it is maintained that he did file a list of the prosecution witnesses but on account of certain manipulations at the instance of the applicants, the list has been taken off the record and is, therefore not treaceable. The opposite party-complainant filed another list of the prosecution witnesses.
6. It is true that Sub-section (2) of Section 204 forbids the issue of summons or warrant against the accused until a list of prosecution witnesses has been filed. The object of this provision appears to be to enable the accused to prepare himself for their cross examination. It would really mean filing of such a list at the time of lodging the complaint as there will be no suitable opportunity afterwards, for if the Magistrate decides to issue process, the service will be delayed for want of list, but it cannot mean mat in no case shall process be issued against the accused without the list of witnesses. Sub-section (2) does not disentitle the complainant from giving additional list of witnesses and the court in issuing summons and examining them. This provision cannot be construed to mean that in no circumstances can a person, not included in the list, be examined as a witness at the trial. If the contention of the learned Counsel for the applicants is accepted that would make Section 254(1), Cr.P.C. otiose and useless. Sub-section (2) only imposes a condition for issue of summons against the accused arid once he is summoned, the power to issue summons to the witnesses is regulated by Section 254. The complainant cannot be tied inexorably to the list of witnesses under Sub-section (2) of Section 204. Even if it is construed that the pro-visions of Section 204(2), Cr.P.C. are mandatory in nature, taking into consideration Section 465, issuing processes cannot be set aside unless it has resulted in failure of justice. In Madhvan Nambiar v. Govindan 1982 Cri LJ 683 it was held by Kerala High Court that omission to file list of witnesses does not vitiate the proceedings if the process is otherwise served. It was further held in Abdullah Bhai v. Gulam Mohd. 1972 Cri LJ 277 (J. and K.) (FB) and Kanhu v. Durga 1980 Cri LJ 518 (HP) that omission to file a list of witnesses is an irregularity curable under Section 465, Cr.P.C.
7. In the back-drop of the above legal position, even if it be taken that the complainant-opposite party failed to file the list of witnesses, the summoning order passed against the applicants shall not stand vitiated. The defect has been cured by filing a list of witnesses subsequently.
8. It appears that in order to thwart the legal proceedings pursuant to the summoning order, the applicants are resorting to flimsy excuses and taking unwarranted recourse to successive proceedings under Section 482, Cr.P.C. The summoning order has become final as it has been upheld by the Supreme Court. The learned Magistrate has to proceed with the complaint case according to law.
9. Before parting with, it would not be out of place to mention that in the instant application under Section 482, Cr.P.C., the applicants have not disclosed the material fact that they have previously on two occasions taken the recourse to the proceedings under Section 482, Cr.P.C. This fact ought to have been disclosed in the affidavit lest there may be suggestion that the applicants have concealed the material facts and have not come to this court with clean hands.
10. In the result, I find that the present application under Section 482, Cr.P.C. is misconceived. The points raised in the application are wholly untenable. The application is accordingly dismissed.
11. The complaint case is pending for the last more than 6 years. The court below, i.e. learned Chief Judicial Magistrate, Mau shall make all possible endeavour to dispose of the case as expeditiously as possible.