IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.302 of 2008 RAKESH SINGH & ANR Versus STATE OF BIHAR & ORS ----------- For the Petitioners: Mr.S.B.K.Manglam, Advocate For the respondents: M/s Bindhyachal Singh, Raghwendra Kumar, For the State : Mr. Prasant Singh, Sushil Kumar Singh, Abhishek Kumar Malendu O r d e r 4 6.8.2008 Heard counsel for the petitioner and the State as well as learned counsel appearing on behalf of the Informant. In the instant writ petition the petitioners pray for quashing the order dated 28.8.2006 passed by the learned Chief Judicial Magistrate, Saran at Chapra in U.T.Case No.459 of 2008 whereby the learned Magistrate was pleased to take cognizance and summon the accused petitioners to face trial, (b)and further for a declaration that the impugned order dated 28.8.2006 passed by the learned Magistrate, is in violation of the mandatory provisions contained in proviso of sub-section (2) of Section 202 of the Cr.P.C., as all witnesses mentioned in complaint petition have not been examined by the complainant. The facts of the case in short are as - 2 - follows; on the statement of respondent no.5, a F.I.R. was lodged bearing Mashrak P.S.Case No.191 of 1995, under section 307 of the Indian Penal Code, and under the Arms Act, dated 15.8.1995. While the investigation was going on, the informant filed a protest petition on 31.1.1996 alleging therein that investigation is being carried out in a perfunctory manner to protect some of the accused persons. The police after investigation submitted final report on 31.7.1996 in favour of the accused persons. However, case proceeded on protest cum complaint petition, but at a snail‟s pace.The enquiry lingered for nine years. It appears that one Gardanibagh P.S.Case No.339 of 1995 was instituted against the prosecution side in which all the accused persons named in this case are eye witnesses. As the aforesaid case also too proceeded slowly, a bench of this court gave directions for its expeditious disposal. It is the case of the petitioners that when aforesaid direction for expeditious disposal was ordered in Gardanibagh P.S.Case No.339 of 1995, the prosecutrix of the instant case, who had not pursued their protest cum - 3 - complaint petition for eight years all of a sudden seems to have woke up from their slumber and only then got examined three witnesses in course of enquiry under section 202 Cr.P.C. Only two out of four witnesses named in the complaint were examined whereas the third witness examined was not named in complaint. In respect of relief prayed for in Para 1 of writ application, the petitioner has canvassed the following points: a) Prolonged delay of 9 years in completing the enquiry under section 202 Cr.P.C. is in violation of guarantee of speedy trial and offends Article 21 of Constitution. b) It was incumbent upon the complainant to examine all four witnesses named in the complaint petition in view of proviso to sub section (2) of section 202 Cr.P.C. According to him the aforesaid proviso is mandatory in nature, and its contravention will render the proceeding and order dated 28.8.2006 taking cognizance and summoning the accused persons to face trial vitiated, being bad in law. In support of his contention learned counsel for the petitioner relies upon an order passed by a - 4 - learned Single Judge in the case of Nagendra Tiwary & Ors Vs State of Bihar & Ors disposed of by order dated 18.4.2007 passed in Cr.Misc.No.1778 of 2007. c) The impugned order has been passed mechanically, without application of judicial mind to the facts of this case. Learned counsel for the informant submits that petitioners are not entitled to any of reliefs prayed for in this writ and issues raised by him is misconceived inlaw. He submits that admittedly charge has not yet been framed in the instant case. He submits that in a complaint case, a person in effect becomes an accused, only when summons is issued to him to face trial under section 204 Cr.P.C. Only thereafter one is required to appear in the proceeding. Prior to that, though one may be arrayed as an accused by a complainant, he or she does not actually become an accused till cognizance of offence is taken and he is summoned to face trial. The offences of graver nature are triable by court of sessions. The legislature as such has not prescribed any time - 5 - limitation in matter relating to taking cognizance in respect of such offences though it has prescribed period of limitation for taking cognizance in respect of minor offences. Section 468 Cr.P.C. providing bar to taking cognizance, after lapse of period of limitation, is in respect of offences, which at the most carry the maximum punishment upto three years. Learned counsel in support of his contention relies upon decisions in the case of Sanapareddy Maheedhar & anr Vs State of A.P.& anr, 2008 (3) P.L.J.R.305 SC as well as in the case of Meena Devi & Ors Vs State of Bihar & Ors, 2003(3) P.L.J.R.464 at paragraph 6. On this basis he submits that delay in enquiry under section 202 Cr.P.C. does not affect right to speedy trial as same has not yet commenced and accused has not suffered any prejudice. He submits that complainant cannot be compelled under proviso to section 202 (2) Cr.P.C. to produce all his witnesses. After having heard counsel for the parties, this court takes up the first issue raised by counsel for the petitioner that a - 6 - delay of long 9 years in taking cognizance and summoning the accused persons to face trial, is in violation of Article 21 of the Constitution of India. Article 21 of the Constitution of India guarantees right to life and liberty. The Hon‟ble Apex Court has observed that speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution of India. The Apex Court in the case of Hussainara Khatoon Vs Home Secretary, State of Bihar, 1979 SC 1360; Methu Mehta Vs Union of India, 1989 SC 2299; A.R.Antulay Vs R.S.Naik, 1992 SC 1701; Kartar Singh Vs State of Punjab, 1995(3) SCC 569; Common Cause Vs Union of India, 1996(4) SCC 334 and Rajdeo Sharma Vs State of Bihar, 1998 SC 3281 has observed that speedy trial is an essential facet and important feature of Article 21 of the Constitution. It is an admitted position that protest- cum-complaint petition was filed by the informant in the year 1996 and the enquiry under section 202 Cr.P.C. was completed in 2006. The accused persons namely the petitioner - 7 - after completion of enquiry have been summoned to face trial under section 204 Cr.P.C. by the impugned order dated 28.8.2006. The relevant consideration is whether the accused have in any way been affected by the prolonged delay in completion of the enquiry, and whether the delay has infringed their right to speedy trial. The answer to the aforesaid question in my view is to be in the negative, as till time summons under section 204 Cr.P.C. is not issued to the accused persons to face trial; one does not have any locus standi in the case. One is not required either to attend the court, or to file his appearance, or move for bail. Thus, the accused petitioners are not really prejudiced by the delay occurring in enquiry under section 202 Cr.P.C. Such delay, though deplorable and totally unwarranted,has to be checked. The Hon‟ble Supreme Court in the case of Rosy Vs State of Kerala, A.I.R. 2000 SC 637 in paragraph 38 has observed as follows: “At the stage of inquiry under section 202 Cr.P.C. accused has no right to intervene and it is the duty of the Magistrate while making an enquiry to elicit all facts not - 8 - merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made”. The trial in a warrant case essentially refers to a stage after completion of judicial enquiry under section 202 Cr.P.C. Though technically it start with the framing of charge, it is definitely desirable that an enquiry under section 202 Cr.P.C. also be completed as quickly as possible as the delay in such proceeding delays justice itself. This court finds that the accused has figured in the picture of this case only after 28.8.2006, on which date a direction for issuance of summons to appear in this case was issued to them. In such circumstances, this court is of the view that the delay in completing enquiry and issuing summons to face trial has not infringed their fundamental right to speedy trial as they have been summoned to face trial in only August, 2006. The delay nevertheless has not adversely prejudiced any right, much less right to speedy trial of the petitioners. - 9 - There is basic difference regarding locus standi of a person who is arrayed as an accused in a complaint case vis-à-vis one who is an accused in a police case. In a police case if accusation made against a person, discloses a cognizable offence he immediately becomes an accused and is liable to be arrested also. Thus in a police case right to speedy trial accrues with apprehension of actual restraint imposed by arrest and consequent incarceration at the stage of investigation, enquiry, trial, appeal and revision. In such circumstances a person is subjected to all possible prejudice that may result from impermissible and unavoidable delay from the time of commission of offence till it consummates in finality. In complaint case a person becomes, subject to aforesaid restrains only after issuance of summons under section 204 Cr.P.C. It is also well settled that mere registration, or continuance of a complaint case under enquiry under section 202 Cr.P.C., does not give any locus standi to an accused to challenge the proceeding till cognizance is - 10 - taken and he is summoned to face trial after enquiry under section 202 Cr.P.C. In view of the aforesaid discussions, this court finds that the prolonged delay in completing enquiry under section 202 Cr.P.C. though unwarranted and deprecated, would not offend Article 21 of the Constitution of India. However, this court does not approve of any practice of keeping a complaint case pending for a long period, awaiting the complainant to produce his witnesses. The court cannot be turned into a storage for those who would wish to pursue their case at their will only. Such cases where a complainant is not vigilant or interested in producing his witnesses burdens on an already over burdened court. The process of a court cannot be permitted to be misused. The court is conscious of the fact that the legislature under section 468 Cr.P.C. has not provided any limitation of time for taking cognizance in respect of offences exclusively triable by court of Sessions or one which carries a punishment of more than 3 years. Non prescription of any time limit under section - 11 - 468 Cr.P.C. in no way allows liverage to investigating agencies or the prosecuting authority or even the courts to perform at leisure. In these back drops, this court is of the view that even in respect of offence which is exclusively triable by a court of sessions, a Magistrate subject to some exception ought to pass an appropriate order if a complainant does not produce all the witnesses in an enquiry under section 202 cr.P.C. within a reasonable perod which could be stretched up to seven years. The period indicated above does not mean that a Magistrate necessarily will have to wait till expiration of aforesaid period. In appropriate case, where the Magistrate finds that complainant does not seem interested in producing his witnesses or he ought not to wait any further, the Magistrate may wind the enquiry and pass appropriate order on basis of materials already on record. Contrarily there may be cases, where even after due efforts the complainant is not able to produce his witness, which would be very essential for coming to a right decision in enquiry on account of such - 12 - persons having gone abroad, or missing or under going incarceration in a case or being unable to come and depose on account of physical disability. In such exceptional cases, the period indicated above can be relaxed on recording such satisfaction. Now I come to the second issue raised by learned counsel for the petitioners that non- examination of all the witnesses mentioned in protest cum complaint is in contravention of proviso to section 202 (2) Cr.P.C. Before examining this provision, it would be useful to quote sections 200 and 202 Cr.P.C. in its entirety which runs as under : “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 - 13 - (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 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 and 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. - 14 - (2) If 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 Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) xx xx xx The submission of learned counsel for the petitioners is that the word ‟shall‟ used in the proviso of section 202(2) Cr.P.C. mandates the complainant to produce all the witnesses that has been mentioned in the complaint. He submits that the proviso is mandatory in character and non-observance of same would render the proceeding and enquiry invalid. Before I deal with the proviso to section 202 Cr.P.C. it would be relevant to have a look at section 200 Cr.P.C. quoted above. Section 200 Cr.P.C. permits a Magistrate taking cognizance of an offence on complaint to examine the complainant and the witnesses present, if any. Section 200 Cr.P.C. does not - 15 - make a distinction between a case to be tried by a Magistrate or the ones exclusively triable by a court of sessions. A case can be visualized where the complainant is the only eye witness or in which all the eye witnesses which the complainant propose to examine were also present when the complaint was filed and they were all examined as required under section 200 Cr.P.C. In such a case the complainant when asked to produce all his witnesses under section 202 of the Code would be at liberty to submit to the Magistrate that he has no other witness than those who were already examined under section 200 Cr.P.C. In such cases the complainant under proviso to section 202(2) Cr.P.C. cannot be compelled to produce all his witnesses in enquiry as he has examined them all under section 200 Cr.P.C. The Magistrate on the basis of the materials produced before it in course of examination under section 200 Cr.P.C. can either dismiss the complaint under section 203 Cr.P.C. or can issue process under section 204 Cr.P.C. if he finds that there is sufficient grounds for proceeding it can issue summons or warrant for - 16 - appearance of the accused. The provisions governing enquiry in respect of offences exclusively traiable by court of sessions is engrafted in proviso to sub section (2) of Section 202 Cr.P.C. Section 202 Cr.P.C. provides the manner in which a Magistrate will proceed 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 Cr.P.C. The Magistrate taking cognizance of offence upon a complaint, which does not disclose an offence exclusively triable by a court of sessions, can adopt any of the three courses: i) He can straight away issue the process or ii) He can postpone the issue of process for holding an enquiry or iii) He can direct an investigation to be made. 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 - 17 - 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 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 - 18 - aforesaid context. 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 - 19 - 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.” The aforesaid issue can be examined from another angle. Chapter XVIII deals with trial before a court of Sessions. Section 231 provides that the Judge trying a sessions case shall proceed to take all such evidence as may be produced in support of the prosecution. A corollary can be drawn vis-à-vis proviso to sub - 20 - section (2) of Section 202 Cr.P.C. vis-à-vis section 231 Cr.P.C. The proviso to section 202(2) Cr.P.C. deals with enquiry in respect of a complaint exclusively triable by a court of sessions. Section 231 Cr.P.C. deals with evidence for prosecution post charge stage. Section 231 Cr.P.C. does not confine the prosecution to examine only those witnesses which are mentioned in the charge sheet, nor can the court necessarily compel the prosecution to examine all the witnesses mentioned in the charge sheet. The Code also does not bar a court from examining any witness as court witness in interest of justice under section 311 Cr.P.C. Learned counsel for the petitioners has referred to an order of this court in case of Nagendra Tiwary & Ors Vs State of Bihar, in support of his contention. For the discussions made in foregoing paragraphs I am in respectful disagreement with the view expressed by learned Single Judge in his order dated 18.4.2007 passed in Cr.Misc.No.1778 of 2007 in the case of Nagendra Tiwary & Ors Vs State of Bihar & Ors. It appears that learned counsel for the - 21 - parties have not brought to the notice of the learned Judge, the judgment rendered in the case of Naresh Singh (Supra) and Rosy Vs State of Kerala, A.I.R. 2000 SC 637. In the case of Rosy Vs State of Kerala, A.I.R. 2000 SC 637, the interpretation of section 202 Cr.P.C. fell for consideration before the Hon‟ble Apex Court. In the aforesaid case on a complaint of public servant, the learned Magistrate took cognizance of offence under section 200 Cr.P.C.and committed the case to the court of sessions for trial, as the offence was exclusively triable by it. The Apex Court observed that such committal of cases to the court of sessions without examining any witness either under section 200 or 202 Cr.P.C. is not desirable as Public Prosecutor under section 226 Cr.P.C. would be helpless to state “by what evidence he proposes to prove the guilt of the accused”. The Apex Court while interpreting the proviso to sub section (2) of section 202 Cr.P.C. though in aforesaid circumstances, observed that if a Magistrate omit to comply with the above requirement of examining all the witnesses mentioned in the - 22 - complaint, the same would not by itself vitiate the proceeding. It would be useful to reproduce paragraph 25 of the judgment which runs as under: “25. 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