Allahabad High Court
Laxmi Shankar Pandey And 2 Others vs State Of U.P. And Another on 17 February, 2023
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 45 Case :- APPLICATION U/S 482 No. - 42957 of 2022 Applicant :- Laxmi Shankar Pandey And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sandeep Pandey Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Sandeep Pandey, learned counsel for the applicants, Mr. K.P. Pathak, learned AGA for the State and perused the records.
This application U/s 482 Cr.P.C. has been filed by the applicant with a prayer to quash the summoning order dated 04.09.2015 as well as the entire proceedings of Old Case No.1118 of 2018 (New Case No.4678 of 2021) (Smt. Rajni Mishra vs. Laxmi Shankar Pandey and others), under Sections 323, 504, 506, 356 IPC, Police Station-Kotwali Katra, District-Mirzapur, pending before the Court of Chief Judicial Magistrate, Mirzapur.
Brief facts of the case are that an NCR was lodged by the opposite party no.2 on 29.09.2014 against the applicants under Sections 323, 504, 506 IPC at Police Station-Kotwali Katra, District-Mirzapur. Subsequently, on 10.10.2014, an application under Section 155(2) CrPC was filed by the opposite party no.2 before the concerned Magistrate requesting that the concerned SHO be directed to conduct the investigation in the above NCR, on which, the aforesaid case was treated as complaint case and after recording the statements under Sections 200 and 202 Cr.P.C., the applicants have been summoned vide order dated 04.09.2015. Pursuant to which, the applicants appeared before this Court and have obtained bail. Therefore, the present application has been filed for quashing of the entire proceedings pursuant to the summoning order.
Learned counsel for the applicants submits that the summoning order has not been passed considering the mandatory provision of Section 204(2) of CrPC wherein it has been mentioned that before issuing summon, the list of prosecution witnesses has to be provided. He further submits that as the said provision is mandatory in nature and the complainant/opposite party no.2 having not furnished the list of witnesses, therefore, the issue of process against the accused-applicant is improper and illegal. He further submits that no offence under the relevant section is made out, therefore, the entire proceedings are nothing but abuse process of law and the same may be quashed by this Court.
Per contra, learned AGA submits that the complainant/opposite party no.2 has named herself as a witness of the incident in the complaint and, therefore it cannot be said that no list of witnesses has been furnished. In this regard, it is submitted that it is not necessary to furnish a separate list of witnesses and the complainant/opposite party no.2 having been named as a witness in the complaint itself, the same is sufficient compliance of the provisions prescribed under Section 204(2) Cr.P.C. It is submitted that as the said provision under Section 204(2) Cr.P.C., regarding furnishing of a list of witnesses before issue of process to the accused is only a matter of procedure, the same is not mandatory and the same can be complied before commencement of the trial, to avoid any prejudice to the accused persons. Even otherwise, the applicants have already given up their claim as the summoning order of the year 2015 is being challenged after a laps of about 7 years and after being released on bail. As regards the other contentions that the offence under the relevant sections has not made out, perusal of the FIR itself goes to show that the applicants after using abusive language entered into the house of the opposite party no.2 and assaulted the opposite party no.2 and her family members with kicks, fists, lathi and danda, due to which they sustained injuries. They also threatened her to leave the house or to face dire consequences. Thus, the allegations are prima facie made out. Therefore, no interference is required by this Court.
I have carefully considered the submissions advanced by learned counsel for the parties and have also gone through the material available on record.
The principal issue which thus arises is with regard to the manner of taking cognizance and issuing process as per the procedure prescribed under the Code and as to whether detailed and elaborate reasons are required to be recorded at the stage of taking cognizance or issuing of process. Complaints to Magistrate are dealt with under Chapter XV of the Code. The provisions relating to examination of complainant and the witness are under Sections 200 and 202 Cr.P.C. Section 202 Cr.P.C. provides for postponement of issue of process, where the Magistrate, thinks fit, to 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 purposes of deciding whether or not there is sufficient ground for proceeding. Section 203 CrPC provides for dismissal of complaint in a situation where after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202 CrPC, the Magistrate is of the opinion that there is no sufficient ground for proceeding. The relevant Sections 200, 202 and 203 CrPC, are being extracted below:-
"200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction 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 to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing."
The procedure for commencement of proceedings before Magistrates is provided under Chapter XVI of the Code. Section 204 CrPC provides that if the Magistrate taking cognizance of an offence considers that there is sufficient ground for proceeding, he shall issue process against the accused person. Section 204 CrPC reads as follows:-
"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. (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."
After the close scrutiny of the aforesaid sections, this Court observed that the jurisdiction of the Magistrate under Section 204(1) Cr.P.C. to issue a summons or a warrant in the first instance, as the case may be, if he is satisfied that there was sufficient ground for proceeding cannot be taken away by the failure on the part of the complainant to file a list of prosecution witnesses. Section 204(2) Cr.P.C. does not override Section 254(1) Cr.P.C., which imposes a duty on the Magistrate to take all such evidence as may be produced in support of the prosecution. Moreover, sub-section (2) of Section 254 of the Code empowers the Magistrate, on the application of the prosecution, to issue summons to any witness. Section 254 Cr.P.C. does not contemplate that the witness to be examined would be only those witnesses who were cited in the list filed by the complainant in terms of Section 204(2) Cr.P.C. Therefore, the provision regarding submission of a list of witnesses in Section 204(2) Cr.P.C. cannot be considered as mandatory in nature so as to control the jurisdiction of the Magistrate to proceed with the trial of the accused and record his plea. Unless clear prejudice is shown to have been caused to the accused by late submission of the list of prosecution witnesses, the order issuing a summons to him cannot be said to be vitiated.
From the discussions made above the legal position that emerges is that the object of requiring the complainant/opposite party no.2 to furnish a list of witnesses before issue of process to the accused, as contemplated under Section 204(2) Cr.P.C., appears to be to enable the accused persons to prepare themselves for their cross-examination. There is nothing in section 204 Cr.P.C., which says or indicates that if no list of prosecution witnesses is filed before the process is issued to the accused, then none can be filed later. Section 204 (2) Cr.P.C. is meant only to safeguard the interest of the accused against undue harassment at the hands of unscrupulous litigants and not to circumscribe the power of the Magistrate to issue summons to any witness, on the application of the prosecution, as provided under Section 254 (2) Cr.P.C. Further, even if it is held that the provisions of Section 204(2) Cr.P.C. are mandatory, that by itself, would not vitiate the issue of process or the jurisdiction of the Court.
In view of the above, this Court is of the opinion that the prayer for quashing the impugned summoning order dated 04.09.2015 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process.
This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 17.2.2023 Jitendra/-