IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4369 of 2005 1. MD.MAHBOOB ANSARI S/O MD ALAUDDIN ANSARI 2. MD SHAMIM ANSARI S/O MD AMIRUDDIN ANSARI 3. MD ROSHAN JAMIL ANSARI @ PINKU S/O AMIRRUDDIN ANSARI, ALL RESIDENTS OF MARIYA SIHIPUR, POLICE STATION BALIA BELONE, KATIHAR. Versus 1. STATE OF BIHAR and 2. RABINA KHATOON D/O LATE YUSUF, MARIYA SIHIPUR. ----------- 13 21.12.2009. Heard the petitioners and State. No one appears for opp party no.2. 2. Petitioners have filed instant application for quashing order dated 23.11.2004, in Cr Revision case no. 37 of 2003, passed by Addl Sessions Judge I, Katihar affirming the order dated 18.2.2003, whereby the Magistrate took cognizance of the offence under sections 376/34 I.P.C. and summoned them to face trial. 3. Facts of the case in short is that opposite party number 2, namely, Rabina Khatoon filed a complaint on 7.1.2002 giving rise to Complaint case no. 41 of 2002. In the complaint, she alleged that all the three petitioners committed rape on her, which she narrated to the passers- by. The complainant supported the prosecution case in her examination on Solemn Affirmation (SA) under section 200 Cr.P.C. The learned Chief Judicial Magistrate, Katihar transferred the case to Sri B.B.Yadav, Judicial Magistrate, 1st class, Katihar for enquiry and disposal under section 192 Cr.P.C. 4. Learned Magistrate started enquiry under section 202 Cr.P.C. and by order dated 26.2.2002, 13.3.2002, 5.4.2002, 13.5.2002, 3.6.202, 5.7.2002, 31.7.2002 & 27.8.2002 directed the complainant to produce the witnesses. However on 8.10.2002 complainant filed a petition for examining witnesses other than those named in the complaint, as they - 2 - were not willing to depose. By order dated 8.10.2002 the learned Magistrate directed the complainant to produce other witness on 18.11.2002. Despite similar directions on 11.1.2003, 13.1.2003, 30.1.2003 & 13.2.2003, the complainant was not able to produce any witness for enquiry u/s 202 Cr.P.C. However, on 18.2.2003 the learned Magistrate took cognizance of the offence under sections 376/34 of the I.P.C. and summoned the petitioners to face trial. The Magistrate in his order dated 18.2.2003 observed that though no independent witness could be produced to support the allegation made by the complainant, still on basis of allegations made in complaint petition and SA under section 200 Cr.P.C., there appears sufficient ground to proceed against accused persons. 5. The petitioners had arrayed six more persons as opp party, apart from the State of Bihar. However he subsequently deleted name of opposite party numbers 3, 4,6 and 7. 6. The petitioners challenged the impugned order taking cognizance and summoning them to face trial on the following grounds:- Firstly, Opp party no.2 is a fictitious woman and not a resident of village Mariya Sihpur, Police Station Balia Belone, Katihar as claimed in the complaint petition. Secondly, the instant complaint has been filed as a vengeance to put pressure upon the petitioners to compromise Kadwa Police Station case no. 152 of 2001, lodged by sister of petitioner no.2 under section 376 against opposite party no. 7, one Moinuddin Ansari. Thirdly, the Magistrate erred in law in issuing summons to the petitioners to face trial only on the basis of complaint and her statement on SA and without examining any witness in enquiry required u/s 202 Cr.P.C. - 3 - Fourthly, the learned Magistrate could not have taken cognizance and summoned the petitioner to face trial without disposing of his objection that complainant in an enquiry u/s 202 Cr.P.C. cannot examine witnesses other than those mentioned in complaint petition. 7. Counsel for the opp party no.2 stated that the learned Magistrate can take cognizance of offence and summon accused to face trial also alone on basis of complaint and SA only in exceptional circumstances, even in sessions triable cases, if he is otherwise satisfied that there are sufficient materials to proceed against them as complainant failed to produce a witness in enquiry despite opportunities. 8. The main issue for consideration of this Court is whether a Magistrate has jurisdiction to summon a person to face trial only on basis of complaint and her statement on SA u/s 200 Cr.P.C. in respect of an offence exclusively triable by court of sessions, if complainant fails to produce any witness in spite of being called upon by Magistrate to produce one under proviso to section 202(2) Cr.P.C. 9. Before I deal with this issue, I will take up other points raised by petitioner. So far as the contention that informant is a fake person, cannot be decided at this stage and would depend upon evidence that may come at later stage. The other issue that Magistrate can examine witnesses other than ones mentioned in complaint is no more Res Integra and well settled. Thus the contention raised by petitioners that the Magistrate in enquiry u/s 202 Cr.P.C. cannot examine witness other than those mentioned in complaint petition have no merit and it is rejected. 10. Now I come back to main issue referred in para 8. 10A. Section 190 Cr.P.C. deals with power of the court to take - 4 - cognizance on three different sources specified therein in the provision itself. Taking cognizance of offence involves exercise of deciding whether processes should be issued or not. 11. Chapter XXV of Cr.P.C. contains provisions to be invoked during interregnum between filing of complaint and issuance of summons. 12. Section 200 Cr.P.C. states that a Magistrate taking cognizance of offence on complaint would examine the complainant upon oath and the witnesses present, save and except as provided in the proviso thereof. Section 202 Cr.P.C. deals with postponement of the process. As the issue relates to appreciation of section 202 Cr.P.C., the same is quoted herein below:- 202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized 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: 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 Session: 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. 202(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. Sub section(1) of section 202 Cr.P.C. states that if a Magistrate thinks it fit, he may postpone issuance of process and may exercise any of two - 5 - options:- (a) he may either inquire into the matter himself or (b) direct investigation to be made by police officer or such other person as he thinks fit for deciding whether there is sufficient ground for proceeding further in the matter or not, subject to exception made in proviso thereof. 13. Sub section (2) of section 202 Cr.P.C. states that a Magistrate in an enquiry under section 202(1) Cr.P.C. if he thinks fit can take evidence on oath, subject to restriction in proviso that the offence complained of is not exclusively triable by court of sessions. 14. Thus, a Magistrate taking cognizance of an offence not exclusively triable by court of Sessions, can adopt either of the three courses in non sessions triable cases:- (i) he can straightway issue process, (ii) postpone issuance of process and hold enquiry or i (iii) can direct for investigation in respect of it. 15. In this context, I may refer to relevant extract of para 12 of judgment of Rozy Vs The State of Kerala which is quoted herein below:- So the Magistrate taking cognizance of offence upon a complaint, when such offence is not triable by the Sessions court, can adopt either of the three courses: (i) straightway issue the process or (ii) he can postpone the issue of process for holding an inquiry or (iii) he can direct an investigation to be made. 16. The issue remains whether the Magistrate can straightway issue summons to accused without holding enquiry in respect of offences exclusively triable by court of Sessions. The answer has been provided in proviso to Sub section (2) of section 202 Cr.P.C. itself. The proviso to - 6 - section 202(2) Cr.P.C. casts an obligation upon the court to call upon the complainant to produce all his witnesses and examine them on oath. In other words, unlike non-sessions triable cases, a Magistrate in respect of an offence exclusively triable by sessions court cannot straightway issue process without directing the complainant to produce all his witnesses. If a Magistrate does not follow the aforesaid procedure in respect of offence exclusively triable by court of sessions, the order would generally stand vitiated. In this context I would like to refer to para 25 of the judgment of Apex court in case of Rozy Vs The State of Kerala which is quoted herein below:- Thus I have no doubt that, the proviso incorporated in sub- section (2) of section 202 of the Code is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in such cases. I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the Magistrate to issue such summons, for there is nothing in the Code which prevents the magistrate from issuing such summons to the witnesses. 17. The apex court further observed in para 26 and 47(c) of the judgment that irregularity or non compliance of mandatory provision would not vitiate the proceeding in all cases. 18. From bare perusal of proviso, it is apparent that duty is cast upon the court to call upon the complainant to produce all his witnesses and examine them on oath. Thus it would be evident that the Magistrate in case of offence exclusively triable by court of Sessions, can not issue process to the persons to face trial without directing the complainant to produce all the witnesses. 19. Now the issue is will the Magistrate (a) wait for eternity for the - 7 - complainant to produce witness, (b) or whether he would proceed further to decide whether there is sufficient material to issue summons/process. There cannot be dispute that a situation can be visualized, when complainant is the only eye witness or the eye witnesses are gained over and not willing to depose. 20. In such exceptional circumstances, in my view, the Magistrate would be within his right to proceed to decide whether process should be issued under section 204 Cr.P.C. or the complaint be dismissed under section 203 of the Cr.P.C., if despite of being called upon the complainant does not produce any witness in course of enquiry u/s 202 Cr.P.C. A Magistrate cannot wait beyond a reasonable point for the complainant to produce witnesses. 21. It is common knowledge that there could be hardly any witness in case of rape, molestation or highway robbery cases. If a complainant does not produce any witness at the stage of enquiry, the risk would be entirely his. It may be another issue whether such materials would be sufficient for framing charge or for passing a judgment of conviction, with which I am not concerned at this stage. 22. This court in case of Rakesh Singh Vs. State of Bihar & ors, reported in 2008(4) PLJR 786 while considering the scope and ambit of section 202(2) Cr.P.C. and its proviso observed as follows in paragraphs 24 & 25. 24. An enquiry in respect of offence, which is exclusively triable by a court of sessions in case made over to the Magistrate under section 192 Cr.P.C., or of which he is authorized to take cognizance is governed by the proviso to sub section (2) of section 202 Cr.P.C. The proviso mandatorily requires of a Magistrate to call upon the complainant to produce all his witnesses. The word „shall‟ engrafted in the proviso (2) of section 202 Cr.P.C. essentially speaks of two requirements; the first requirement casts - 8 - an obligation on court making an enquiry to call upon the complainant to produce all his witnesses and examine them. In other words, the court is mandatorily to give an opportunity to complainant to produce all his witnesses. Secondly the provision assures of no fetter or limitation on right of complainant to examine as many witnesses it would like to examine in respect of offence exclusively triable by court of sessions. The import of the word „shall‟ used therein is that there would be no limitation or restriction on the complainant to produce all the witnesses, he proposes to examine. This entitles the complainant to examine even such witnesses which are not specifically named in the complaint as witness. The word „shall‟ mention therein in proviso to section 202 (2) Cr.P.C. couched in mandatory language is used in aforesaid context. 25. The proviso does not mandate that the complainant in all circumstances will have to produce all witnesses named in the complaint petition. It is a common knowledge that a witness may have been gained over by the other side and would not be willing to depose in the case any more. In such situation the complainant cannot be compelled to examine all such witnesses named earlier in the complaint. The spirit of the word „shall‟ used in the proviso would mean that the court would be bound to examine all such witnesses that the complainant would propose to examine. Further more, the expression “all his witnesses” occurring in the proviso is equivalent to all the complainant‟s witnesses. The expression complainant‟s witness in ordinary parlance in the absence of anything to the contrary would mean such witnesses as the complainant chooses or desires to examine on his behalf. If the court considers that an examination of a particular witness is necessary in the enquiry it will be open to him to exercise such jurisdiction under section 311 Cr.P.C. in ends of justice. A similar view as of mine has more or less been taken by a Division Bench of this court in case of Naresh Singh & Ors Vs State of Bihar, 1988 P.L.J.R.216. It would be expedient to quote the relevant extract of Para-9 of the aforesaid judgment: “9. In my view the requirement of proviso to sub-section (2) of section 202 is that the Inquiring Magistrate should call upon the complainant to produce all his witnesses. If for one reason or the other, the complainant fails to produce all the witnesses, the Magistrate shall be perfectly to consider the question as to whether the petition of complaint be dismissed or the accused persons should be summoned on basis of the materials on record.” 23. A Division bench of this Court in case of Naresh Singh Vs The State of Bihar, reported in 1988 PLJR 216 also observed that a Magistrate can summon an accused in respect of offence exclusively triable by court of Sessions on perusal of allegation made in petition of complaint and - 9 - statement of complainant made on SA under section 200 Cr.P.C. Para 8 of the judgment is quoted herein below:- It cannot be disputed that a Magistrate merely on perusing the allegation made in the petition of complaint along with the statement on SA, can summon the accused in respect of an offence exclusively triable by a court of sessions if he is satisfied on those materials that a prima facie case is disclosed against such accused. 24. Thus I am of the view that the Magistrate has not committed any illegality in summoning the accused persons on perusal of complaint and the SA of the complainant. The Magistrate has complied with the mandatory provisions of section 202 Cr.P.C. by having directed the complainant more than time and number to produce his witnesses in enquiry under section 202 Cr.P.C. Only when, even after such repeated directions, the complainant failed to produce any witness, the Magistrate rightly proceeded to examine whether there was sufficient materials for proceeding against the accused or not. The Magistrate would not wait for months and months in the hope that complainant will produce her witnesses in enquiry u/s 202 Cr.P.C. Finding that there is sufficient material to proceed, he has rightly passed the impugned order taking cognizance and issuing process against the accused persons to face trial under section 302/34 I.P.C. 25. In the instant case, the complainant has supported complaint case on SA in statement under section 200 Cr.P.C. I also find that the complaint and statement on oath contain sufficient materials for proceeding u/s 204 Cr.P.C. against accused persons u/s 376/34 I.P.C. 26. I do not find any merit in the application and the same is dismissed. Shashi/AFR. (Samarendra Pratap Singh,J.)