Chattisgarh High Court
Satyendra Pradhan vs Akshat Agrawal on 10 February, 2023
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr.M.P No.209 of 2023
Satyendra Pradhan S/o Shri Sitaram Pradhan Arpita Hospital R/o
Near Late Raja Virendra Bahadur Singh Govt. College, Main Road,
Saraipali, District Mahasamund Chhattisgarh. ----Petitioner
Versus
Akshat Agrawal S/o Sunil Agrawal Aged About 25 Years R/o
Padampur Road, Post Saraipali, District : Mahasamund,
Chhattisgarh ----Respondent
For Petitioner: Shri Akash Sahu, Advocate.
Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 10.02.2023
1. This Petition has been filed under Section 482 of Cr.P.C. against the order dated 16.12.2022 passed by the 1 st Additional Sessions Judge, Saraipali, District Mahasamund upholding the order dated 17.10.2022 passed by the JMFC, Saraipali in Criminal Complaint Case No.528/2022 whereby, the application filed by the Respondent/Complainant to adduce the witness, which is not named in the list of witnesses, has been allowed.
2. Brief facts of the case are that the Respondent/Complainant has filed a complaint under Section 138 of the Negotiable Instruments Act with an averment that he was running a medical shop in the hospital of the Petitioner named as Arpita Hospial and later on, the same was closed and with negotiation, the Petitioner has handed 2 over a cheque of Rs.14,51,000/- to the Complainant which was dishonoured, therefore, a complaint has been filed. After registering the case, notice was issued to the Petitioner and the Complainant was examined. The Complainant has cited only 3 witnesses including himself and has moved an application on 24.10.2018 for examining his father in the mid trial, which has been allowed by the order impugned and affirmed by the revisional Court. Hence this Petition.
3. Shri Sahu submits that the order impugned is bad in law and not sustainable as in the complaint, there is no mention regarding the role played by the proposed witness i.e. the father of the Complainant namely Sunil Agrawal, who has also not been mentioned in the list of witnesses, therefore, he prays to quash the impugned order and allow the Petition.
4. I have heard learned counsel for the Petitioner and perused the documents annexed herewith carefully.
5. In the matter of Sayeeda Farhana Shamim v. State of Bihar & Another reported in (2008) 8 SCC 218, while dealing with the question whether a Magistrate dealing with a complaint relating to a warrant case has power to allow certain witnesses to be examined at the instance of the complainant whose names are not found in the list which the complainant may have furnished with the complaint or which he was called upon to furnish under Sub-section (1-A) of Section 204 of the Criminal Procedure Code, the following was 3 observed :
"11. Before we refer to decisions of various High Courts, it may be mentioned here that the discretion of the Magistrate is nowhere fettered by any of the provisions contained in CrPC. Section 244 CrPC reads as under:
"244. Evidence for prosecution.--(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
The expression used is, "the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution". Similarly, sub-section (6) of Section 246 CrPC reads as under:
"(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged."
The expression used is, "the evidence of any remaining witnesses for the prosecution shall next be taken". Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the cause of justice. Here we want to say a word of caution that the discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6) CrPC should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case.
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19. In view of the consensus of the opinion which has emerged from various decisions of the High Courts, it appears that the power of the Magistrate should not be fettered either under Section 244 or under sub- 4
section (6) of Section 246 CrPC and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But as we have already added a word of caution that while accepting the supplementary list, the Magistrate shall exercise his discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused."
6. Having considered the aforesaid principles, it is evident that in the instant case, the trial Court has observed in the impugned order that the proposed witness namely Sunil Agrawal, being father of the Complainant and also having assisted the business of the Complainant, is well aware of the important transactions dealt with by the Petitioner, therefore, there is no bar to allow this witness to the list of earlier witnesses and the Complainant has a right to adduce supplementary list of witnesses.
7. In view of above, this Court is of the considered opinion that no prejudice is caused to the Petitioner in the course adopted by the trial Court, therefore, the order impugned is well merited and does not call for any interference invoking the powers under Section 482 Cr.P.C.
8. Accordingly, the Petition being bereft of any merits is hereby dismissed.
Sd/-
(Deepak Kumar Tiwari) Judge Priya