Skip to content


Musara Narayana Reddy and ors. Vs. Kanakanti Mal Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1473
AppellantMusara Narayana Reddy and ors.
RespondentKanakanti Mal Reddy and anr.
Excerpt:
.....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. it is admitted that the offence complained of is one triable exclusively by the court of session, it is also admitted that the magistrate examined the witnesses produced by the complainant excepting those given up by him. 14. in view of that i am satisfied that there does not involve any infringement or violation of the proviso appended to sub-section (2) of section 202 of the cr......only when the magistrate considers it necessary to postpone the issue of process against the accused and the purpose of the proceedings is just to decide whether or not there is sufficient ground for proceeding against the accused. i agree with the view taken by the learned judge that the purpose was only to decide whether there is sufficient ground for proceeding against the accused. that clothes the accused with a right to cross-examine the witnesses examined only but it does not clothe him with a further right to insist upon the examination of the witnesses given up by the complainant. i, therefore, agree with the contention put forward by sri obulapati chowdary, the learned public prosecutor supported by sri narasimha reddy and hold no case is made out for quashing the.....
Judgment:
ORDER

Lakshmaiah, J.

1. This is a petition filed seeking the quashing of all the proceedings in P. R. C. No. 11 of 1976 on the file of the Judicial Second Class Magistrate, Raichoti.

2. One by name Kanakanti Malreddy laid a complaint before the Sub-Inspector of Police, Chinnamandam, alleging that on 2nd Jan., 1976 the petitioners caused injuries to L. Ws. and took away two bags of groundnut and 4 half bags of paddy. The concerned Sub-Inspector of Police after investigation opined that there was no cognizable case by the Police. Not being satisfied with that, Sri Kanakanti Malreddy laid a private complaint in the Court of the Judicial Second Class Magistrate, Raichoti, against the petitioners on 12-2-1976 Under Sections 147, 148, 448, 395 and 324 read with Section 149 of the Indian Penal Code. As many as 10 witnesses were cited in the complaint filed by Malreddy. The sworn statement of the complainant on oath was recorded on 23-2-1976 and L. Ws. 1 to 6 and 10 were examined by the Judicial 2nd Class Magistrate Under Section 202 of the Cri. P. C. on various dates. Ultimately on 12-5-1976 the case was taken on file as P. R. C. No. 11 of 1976 Under Sections 147, 148, 448, 395 and 324 read with Section 149, I. P. C. and non-bailable warrants were issued by the Magistrate.

3. Sri Harisesha Reddy, the learned Counsel appearing for the petitioner, submitted that the Learned Magistrate's cognizance of the case after examining L. Ws. 1 to 6 and 10 and without examining the other L. Ws. 7 to 9 is contrary to the mandatory provisions of Section 202 of the Cr. P. C. and as such, the proceedings are liable to be quashed.

4. Sri M. N. Narasimha Reddy, the learned Counsel appearing for the complainant, contended that out of the 10 witnesses cited in the complaint, L. Ws. 1 to 6 and 10 were examined and L. Ws. 7 to 9 were given up by the complainant on 28th of April, 1976, as L. Ws. 7 and 8 came to the scene of offence after the occurrence and as they were won over by the accused. L. W. 9, according to the learned Counsel, a Sub-Inspector was cited to speak about the seizures only as he was not the investigating officer. He also denied the sezure of blood stained clothes etc., and as such he was also given up. Sri Malreddy according to the learned Counsel being a complainant has got the option to examine the witnesses of his own choice and he is at liberty to give up whomsoever he chooses and as L. Ws. 7 to 9 were given up, it cannot be said that the proviso to Sub-section (2) of Section 202 is not complied with and therefore the proceedings are not liable to be quashed.

5. The point therefore that arises for determination is whether the proceedings are liable to be quashed on account of the non- examination of some of the witnesses given up by the complainant under the proviso appended to Sub-section (2) of Section 202, Cr. P. C.

6. Sri Harisesha Reddy, the learned Counsel for the petitioner, emphatically contended that the examination of the witnesses is conceived in the interest of the accused as the accused is entitled for being furnished with the statements recorded Under Section 202, Cr. P. C., of all the persons examined by the Magistrate by virtue of which, the accused would effectively exercise his right of defence by cross-examining the witnesses (sic) were not examined, it constitutes non-compliance with Section 202 Sub-section (2) proviso.

7. Sri Obulapati Choudary, the learned Public Prosecutor after having drawn my attention to the relevant provisions contained in the Cr. P. C. and particularly those in Section 202 emphasized the fact that the requirement of examining all the witnesses Under Section 202, Sub-section (2) proviso does not bring within its ambit witnesses given up by the complainant and the intention of the framers of the enactment would not have been to place an embargo on the right of the complainant to choose to examine or not to choose to examine any of the witnesses and in any event such of those persons that were given up by the complainant cannot answer the description of 'his witnesses' within the meaning of that expression as occurring in the particular proviso and as such the proviso cannot be said to have been contravened at all. Sri Narasimha Reddy also reiterates the view contended for by the learned Public Prosecutor.

8. As the controversy in this case is centered around the non-compliance with the provisions contained in the proviso appended to Sub-section (2) of Section 202, we shall read that section in so far as it is material.

Section 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, 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.

(The proviso appended thereto is not relevant).

(2) In an inquiry Under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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.

In the instant case as many as 10 witnesses were cited in the complaint filed and the swam statement of the complainant on oath was recorded on 23-2-1978 and L. Ws. 1 to 6 and 10 were examined by the Judicial Second Class Magistrate Under Section 202 of the Cr. P. C, and L. Ws. 7, 8 and 9 were given up by the complainant on 28-4-1976 and the point that is now sought to be made out is that the non-examination of L. Ws. 7 to 9, who were given up by the complainant, vitiates the proceedings and as such the proceedings are liable to be quashed. The proviso to Section 202(2) obliges the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. To start with the Magistrate has no power to prescribe the number of witnesses for the purposes for which they have got to be examined. It is for the complainant to choose and to append a list of witnesses to the complaint. Therefore the right of the complainant with regard to the witnesses mentioned in the list cannot be interfered with by the Court nor his right to give up some of them can be interfered with by the Court. It is not the intention of the framers of the enactment to place any embargo on the right of the complainant in the matter of choosing the witnesses to be examined. It is open to the complainant to give up some of the witnesses and those witnesses that were so given up can no more answer the description of 'his witnesses' within the meaning of that expression as occurring in the proviso. Non-examination of the given up witnesses cannot be construed as a non-examination of his witnesses. Therefore, I am of the opinion that the non-examination of the witnesses given up by the complainant cannot vitiate the proceedings.

9. Sri Harisesha Reddy emphatically contended that the examination of these witnesses is intended with a view to enabling the accused to exercise the right of cross-examining the witnesses and that object of the Code is likely to be defeated by the non-examination of the witnesses. The learned Counsel is not in a position to place before me any authority in support of the contention that the given up witnesses by the complainant also can be considered as witnesses, the non-examination of whom, according to him, vitiates the proceedings.

10. Apart from that, I am satisfied that the purpose of the enquiry under Sub-section (1) of Section 202 is to enable the Magistrate to decide whether or not there is sufficient ground for proceeding further in the matter.

11. Under Section 200 of the Cr. P. C. Magistrate taking cognizance of an offence on complaint shall examine upon oath, the complainent 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.

12. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) Under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he has been given the power Under Section 203 Cr. P. C. to dismiss the complaint and in every such case he is required to record briefly his reasons for so doing. The result therefore of an enquiry Under Section 202(1) is either to enable the Magistrate to exercise the power conferred upon him Under Section 203 to dismiss the complaint or if not, to proceed Under Section 204, Cr. P. C. as per which 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.

Sub-section (2) provides that no summons or warrant shall be issued against .the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. My attention has been drawn to Section 208 of the Code of Criminal Procedure also as per which where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process Under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:--

(i) the statements recorded Under Section 200 or Section 202, of all persons examined by the Magistrate;

(ii) the statements and confessions if any, recorded Under Section 161 or Section 164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely.

It is proposed to consider as to what would have possibly been the object or the intention of the framers of the enactment in providing, for the examination of the witness cited by the complainant. If the intention or the abject is, as sought to be contended for by Sri Harisesha Reddy, to provide an opportunity to the accused to cross-examine, then we find in a case where the Magistrate chooses to proceed without postponing the issue of process after examining the complainant and some of the witnesses and to issue the process against the accused, there is no question of any obligation being placed on the Magistrate to examine all the witnesses cited by the complainant, in which case there is no question of the accused being deprived of the right of cross-examining those witnesses who were not examined. The framers of the enactment could not have intended that in a case where the Magistrate is satisfied to proceed straightway to the issuance of the process against the accused the accused shall be deprived of the right of cross-examining the witnesses to which they would be entitled only when the Magistrate chooses to postpone Under Section 202 Cr. P. C., the issue of process against the accused. A reference in this context to Section 208 also does not lend support to the contention of Sri Harisesha Reddy as it does not speak any thing about the obligation on the part of the Magistrate to examine any of the witnesses. The purpose of Section 208 Cr. P. C. is only to furnish to the accused free of cost among other things statements recorded of all persons examined by the Magistrate. It does not provide for a situation as to what happens when some of the witnesses were not examined but only provides for the furnishing of the statements of the persons examined, Therefore, reference to Section 208 does not solve the problem raised in this case.

13. Under Section 202 any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, postpone the issue of process against the accused. Therefore the power to postpone the issue of process against the accused is conferred on the Magistrate Under Section 202 of the Code of Criminal Procedure. If he exercises that power Under Section 202that way he can enquire into the case himself for the purpose of deciding whether or not there is sufficient ground for proceeding. In that enquiry under Sub-section (1) the Magistrate may, if he thinks fit, take evidence of witnesses 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. It is admitted that the offence complained of is one triable exclusively by the Court of Session, It is also admitted that the Magistrate examined the witnesses produced by the complainant excepting those given up by him. The complainant has got the right to cite any number of witnesses, when he considers it to be necessary. He was also given the right to give up some of those witnesses and that right to give up the witnesses is included within his right to cite those witnesses in the list that shall have to be submitted by him while laying the complaint. The Magistrate has not been given any power to control the exercise of the right of the complainant in the matter of giving up the witnesses. Therefore, the Magistrate is competent to examine only those witnesses that were produced by the complainant and he does not have any power to compel the complainant to produce witnesses given up by him, In that context the expression of 'his witnesses' as occured in the proviso shall have to be understood only as such of those witnesses that were produced by the complainant but not those that were given up by him.

14. In view of that I am satisfied that there does not involve any infringement or violation of the proviso appended to Sub-section (2) of Section 202 of the Cr. P. C. in the non-examination by the Magistrate of certain witnesses given up by the complainant. In the view I have taken it is not necessary for me to refer to the cases cited by the Counsel on either side where there did not arise any question of the witnesses given up by the complainant being required to be examined.

15. The decision of my learned brother Muktadar, J., in Crl. M. P. No. 2622 of 1975 D/- 23-1-1976 (Andh Pra) deals only with a case where some of the witnesses mentioned by the complainant were not examined by the Magistrate as required Under Section 202, Sub-section (2) proviso. That was not a case where some of the witnesses were given up by the complainant.

16. My learned brother Madhusudhana Rao, J., while disposing of Crl. R. C. 829/74, DA 18-4-1975: reported in 1976 Cri LJ 127 (Andh Pra) was of the view that Sub-section (1) Section 202 makes it clear that the proceedings under that section are to be instituted only when the Magistrate considers it necessary to postpone the issue of process against the accused and the purpose of the proceedings is just to decide whether or not there is sufficient ground for proceeding against the accused. I agree with the view taken by the learned Judge that the purpose was only to decide whether there is sufficient ground for proceeding against the accused. That clothes the accused with a right to cross-examine the witnesses examined only but it does not clothe him with a further right to insist upon the examination of the witnesses given up by the complainant. I, therefore, agree with the contention put forward by Sri Obulapati Chowdary, the learned Public Prosecutor supported by Sri Narasimha Reddy and hold no case is made out for quashing the proceedings. The proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure cannot be said to have been infringed by the non-examination of witnesses given up by the complainant. There are no merits in this petition. The petition is therefore dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //