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Jagannath Sahu Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 91 of 1965
Judge
Reported inAIR1966Ori9; 1966CriLJ40
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 247; Indian Penal Code (IPC) - Sections 186, 204(1B) and 244
AppellantJagannath Sahu
RespondentState and anr.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateStanding Counsel
DispositionRevision dismissed
Cases ReferredAhmed Noor Karimbhai v. State
Excerpt:
.....that the compliance with this provision is mandatory and when the complainant failed to attach a copy of the complaint to summons, it invalidates the entire proceeding, and in any case the magistrate should have given a copy of the complaint-petition to the accused before he proceeded with the trial. nahar khan, air 1958 madh pra 28. in that case the magistrate proceeded to examine the complainant without complying with the provisions of sub-sections (1-a) and (1-b). the learned judge was of the opinion that the provisions of section 204(1-a) and (1b) are mandatory and he directed the magistrate to comply with the said provision and then proceed with the trial in accordance with the law there are, however, a number of authorities who have held a contrary view and were of the opinion..........case the prosecution was launched against the accused under the bombay prohibition act and the magistrate examined the seizure witness first before any other witness was examined. it was contended that the magistrate should have examined the complainant first before evidence was taken in the case. it was held that under section 244 the complainant has to be examined first only if there is a complainant in the case. it was on this observation, much stress was laid by learned counsel for the petitioner. in that case it was also observed that once it is found that the cognizance was taken on a police report, the question of applicability of section 244 does not arise. in the same judgment, the learned judge also further observed that when cognizance was taken on a police report, there.....
Judgment:
ORDER

R.K. Das, J.

1. The petitioner has been prosecuted for an offence under Section 186, Indian Penal Code on the basis of a report filed by the A. S. I., Parjang Police Station. The case against him being that in course of the investigation of a case under Section 380, I. P. C., he obstructed the A. S. 1.--to conduct a search and behaved in a threatening manner On a complaint filed by the A. S. I. the accused was summoned for an offence under Section 186 and the case was posted to 9-1-1965 The Sub Inspector who filed the complaint was however absent on that day The accused filed a petition contending that the summons issued to him did not accompany a copy of the petition of complaint as required under Section 204(1B) that this being a summons case the complainant should under Section 244 be examined first before any other witness present in court are examined and that the complainant himself being absent on that day and the Court not having dispensed with his personal appearance, the accused should be acquitted under Section 247, Cr. P. C. The learned Magistrate rejected the aforesaid contentions of the accused-petitioner and it is against the said order of rejection, the petitioner has come with this revision.

2. Mr. S C. Mohapatra, learned counsel for the petitioner raised the following contentions:

(i) That this being a complaint case, in the absence of the complainant the Magistrate should have acquitted the accused under Section 247, Cr. P. C.

(ii) That a copy of the complaint-petition not having accompanied the summons to the accused as required under Sub-section (1-B) of Section 204, further proceeding in the trial is vitiated; and

(iii) That the complainant was bound to be examined first under Sub-section 244(1) Cr. P. C. before any of the witnesses were examined

3. There is no dispute about the fact that a case under Section 186. I. P. C. is covered within the ambit of Section 195(1) (a) of the Cr. P. C. and has to be treated as a complaint case and not as a case based upon police report, though the complainant in this case is himself a police officer Coming to the first contention of Mr. Mohapatra Section 247, Cr. P. C. authorises a Magistrate to dispense with the personal attendance of the complainant where he is of opinion that such attendance is no! necessary and in such cases, the Magistrate can proceed with the case in spite of the absence of the complainant. It appears from the impugned order that the complainant A. S. I. made an application to the Court stating that on account of a sprain on his foot he was unable to attend the Court as there was no conveyance from his office to the Court The Magistrate considered the ground given by the complainant to be reasonable and condoned his absence Learned Counsel for the petitioner, however, contended that there is a difference between ''dispensing with personal attendance' and condoning the absence, and that on 9-1-1965 the absence of the complainant was merely condoned, but his personal attendance was not dispensed with as required under Section 247 To my mind, this contention has no force The condonation of the absence of the complainant on the date of hearing amounts to a 'dispensing with his attendance' on that day Moreover, nothing has been made out to show that the accused was in any way prejudiced by such absence of the complainant In a case reported in Prem Kumar v. State. AIR 1968 Raj 77, a similar contention was raised and it was held that in a summons case merely because some proceedings were taken by the Magistrate in the absence of the complainant without dispensing with his personal attendance, the proceedings will not be vitiated unless some prejudice is shown to have been caused to the accused. No doubt the accused filed a petition on that date objecting that as the complainant was absent, he should be acquitted in accordance with the provisions of Section 247 Cr. P. C. But that objection cannot be sustained in view of the very order of the Court where he found that the complainant's absence of that day was justified as on account of his illness he could not attend the Court. This contention of Mr. Mohapatra is therefore rejected.

4. The next contention that the summonsissued to the accused did not accompany acopy of the complaint petition as requiredunder Section 204(1-B) : Sub-section (1-B) saysthat:

'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.'

It was contended that the compliance with this provision is mandatory and when the complainant failed to attach a copy of the complaint to summons, it invalidates the entire proceeding, and in any case the Magistrate should have given a copy of the complaint-petition to the accused before he proceeded with the trial. In support of this contention, reliance was placed on a decision of the Madhya Pradesh High Court, reported in Chaturbhuj v. Nahar Khan, AIR 1958 Madh Pra 28. In that case the Magistrate proceeded to examine the complainant without complying with the provisions of Sub-sections (1-A) and (1-B). The learned Judge was of the opinion that the provisions of Section 204(1-A) and (1B) are mandatory and he directed the Magistrate to comply with the said provision and then proceed with the trial in accordance with the law There are, however, a number of authorities who have held a contrary view and were of the opinion that the said provisions are merely directory and the failure to attach copy of the complaint petition to the summons would not vitiate the trial. The Punjab High Court in a case reported in Ramnarain v. Bishamber Nath, AIR 1961 Punj 171 also took the same view. A Division Bench of the Calcutta High Court in a case reported in Brahma Panda v. Chairman of Howrah Municipality, AIR 1961 Cal 648, held that a summons does not cease to a summons simply because it was not accompanied by a copy of the complaint. The Magistrate's jurisdiction is not affected simply because the summons was not issued with a copy of the complaint In that case the accused did not attend the Court on the ground that the summons did not accompany the petition of complaint Their Lordships held that the petitioner should have attended the court in obedience to the summons and then brought to the notice of the Magistrate that the summons was not accompanied by copy of the complaint petition as required under Section 204(1-6), provisions of Section 173(4) are to a limited extent similar to the provisions in Section 204(l-B). Cr. P. C. in relation to the furnishing necessary information to the accused. In a decision of the Supreme Court reported in Narayan Rao v. Slate of Andhra Pradesh. (S) AIR 1957 SC 737, their Lordships held that the word 'shall' occurring in Sub-section (4) of Section 178 is not mandatory but only directory and the omission to furnish the necessary documents to the accused will not have such a far-reaching effect as to render the proceedings wholly ineffective. Thus the provisions of Section 204(1-B) are merely directory but that does not mean that the Magistrate can with impunity disregard the statutory directions contained in Sub-section (1-B) as it is his duty to see that a copy of the complaint petition is supplied to the accused before he proceeds with the case. The learned Magistrate was however of the view that when the particulars of the offence were explained to the accused, and thereafter the case was posted, for hearing, it was not necessary that he should be supplied with a copy of the complaint petition. This, however, is not correct. In view of the provisions of Section 204(1-B) the accused must be supplied with a copy of the complaint petition so that he may be aware of the allegations against him, the Magistrate no doubt was of the opinion that no prejudice was caused to the accused. This however, cannot be taken to be correct. Since I have held above that the provisions of Section 204 (1B) are only directory and cannot vitiate the present proceedings, the Magistrate will now direct the furnishing of a copy of the complaint petition to the accused and proceed with the trial.

5. Coming to the last contention of Mr. Mohapatra, that the complainant was first to be examined as required under Section 244 Cr. P. C. Section 244 provides that if the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. It was contended that the Magistrate must examine the complainant first before he examines any other witness. This contention, however, is erroneous. In the trial of a summons case, after appearance of the accused the court has to explain the substance of the accusations to the accused and the accused has to be asked if he has any cause to show why he should not be convicted and it shall not be necessary to frame a formal charge. If the accused admits that he has committed the offence, his admission is to be recorded and if he shows no sufficient cause the Magistrate may convict him. But when the accused does not admit the offence, the Magistrate has to proceed under Section 244. Thus even without the examination of the complainant, the accused under some circumstances can be convicted on his mere admissions. Reliance was placed on a single Judge decision of the Gujarat High Court reported in Ahmed Noor Karimbhai v. State, AIR 1963 Guj 221. In that case the prosecution was launched against the accused under the Bombay Prohibition Act and the Magistrate examined the seizure witness first before any other witness was examined. It was contended that the Magistrate should have examined the complainant first before evidence was taken in the case. It was held that under Section 244 the complainant has to be examined first only if there is a complainant in the case. It was on this observation, much stress was laid by learned counsel for the petitioner. In that case it was also observed that once it is found that the cognizance was taken on a police report, the question of applicability of Section 244 does not arise. In the same judgment, the learned Judge also further observed that when cognizance was taken on a police report, there is no complaint and no complainant. That is why the Legislature has used the words 'if any' in Section 244. Cr. P. C. This however, is not the authority for the proposition put forward by the learned counsel for the petitioner, that in every case to which Section 244 has application, the complainant must necessarily be examined as the first witness in the case. This contention must accordingly be rejected. It is unnecessary to refer to the series of decisions of this High Court as to the effect of the absence of the complainant when the complainant, as in this case, happened to be a public servant and the scope of the applicability of Section 247 to all such cases.

There is no merit in this revision. The petition is accordingly dismissed, but the learned Magistrate before he proceeds further with the case, shall see that a copy of the complaint is supplied to the petitioner.


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