IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.MC.No. 3548 of 2010(A) -------------------------- CMP.478/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... PETITIONER(S): COMPLAINANT: ------------------------------------------------ ANIL KUMAR, S/O.JANARDHANAN NAIR, THANNIYARTHAI VEEDU MOTTAMOODU, NARUVAMOODU, THIRUVANANTHAPURAM. BY ADV. SRI.V.S.BABU GIREESAN RESPONDENT(S): RESPONDENTS: ----------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR ,HIGH COURT OF KERALA. 2. SAHIR, CIRCLE INSPECTOR OF POLICE, THAMPANOOR POLICE STATION. 3. SHARAFUDEEN, ASSISTANT COMMISSIONER, DCRB, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3548 of 2010 -------------------------- ORDER Petitioner filed Annexure-1 complaint before Chief Judicial Magistrate, Thiruvananthapuram against respondents 2 and 3 alleging that they committed offences under Sections 342, 323, 506 (ii), 203 and 307 read with Section 34 of Indian Penal Code. Learned Magistrate, after recording the sworn statements of the petitioner and the witnesses, dismissed the complaint holding that no sanction under Section 197 of Code of Criminal Procedure was obtained to prosecute the accused. Petitioner challenged that order before this Court in Crl.R.P.No.2707/2009. By Annexure-4 order, this Court set aside the order and remitted the case for fresh consideration holding that the order taking cognizance is not a speaking order. Subsequent to the remand, by order dated 28.7.2010, learned Magistrate directed the petitioner to produce all CRMC 3548/10 2 his witnesses to examine on oath as provided under sub-section (2) of Section 202 of Code of Criminal Procedure. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order contending that it is not for the court to insist the complainant to examine all his witnesses and it is for the complainant to choose which all witnesses are to be examined. 2. Learned counsel appearing for the petitioner was heard. 3. Argument of the learned counsel is that complaint was originally dismissed on the ground that sanction under Section 197 of Code of Criminal Procedure was not obtained to prosecute respondents 2 and 3 and subsequent to the remand, learned Magistrate was not justified in passing an order directing the petitioner to produce all the witnesses under sub-section (2) of Section 202 of Code of Criminal Procedure. Argument is that as the complaint was originally dismissed for want of CRMC 3548/10 3 sanction under Section 197 of Code of Criminal Procedure, question of sanction should have been considered and for that purpose, witnesses need not be examined and in any case, option to examine the witnesses is that of the petitioner and the court cannot compel the petitioner to examine all the witnesses. 4. Proviso to sub-section (2) of Section 202 of Code of Criminal Procedure mandates 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. 5. Therefore, though it is the option of the complainant to examine the witnesses in a private complaint at the stage of conducting an inquiry under Section 200 or Section 202 of Code of Criminal Procedure, when the offence alleged is exclusively triable by the Court of Session, sub- section (2) mandates that all the witnesses to be CRMC 3548/10 4 examined before the Court of Session, shall be examined by the complainant before the committal court. 6. Though learned counsel appearing for the petitioner relied on the decision of the Apex Court in Shivjee Singh v. Nagendra Tiwary (AIR 2010 SC 2261) and argued that in view of the latest decision of the Apex Court, it is not mandatory to examine all the witnesses at the committal stage, I cannot agree with the submission that Magistrate is not competent to call upon the complainant to produce all the witnesses, to be examined at the sessions trial, before taking cognizance of the sessions offences. The two Judge Bench in Sivjee Singh's case (supra) considered the earlier decisions in Rosy v. State of Kerala (AIR 2000 SC 637) and Abdul Wahab Ansari v. State of Bihar (AIR 2000 SC 3187). Though it was contended that there was discord between the views expressed by their Lordships, in Rosy's case (supra), their Lordships CRMC 3548/10 5 held that there is no such conflict. It was observed that even though, in terms of proviso to sub-section (2) of Section 202 of Code of Criminal Procedure, Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order “if he is satisfied that there exists sufficient ground for doing so.” Such an order passed by the Magistrate cannot be nullified on the ground of non compliance of the proviso to Section 202(2) of Code of Criminal Procedure. The observations in Rosy's case (supra) that if the Magistrate is not complying with sub-section (2) of Section 202, provisions of Section 208 of Code of Criminal CRMC 3548/10 6 Procedure cannot be complied with and when the matter comes to the Sessions Court, Sessions Judge may have to axe down the case at the stage of Section 226 itself, as the Public Prosecutor would then be helpless to state by what evidence he proposes to prove the guilt of the accused, was also followed. By the impugned order, learned Magistrate has only directed the petitioner to produce all the witnesses and examine them on oath. Though complainant is not bound to examine all the witnesses, the order is not illegal and cannot be challenged. Moreover, the question whether sanction is necessary or not is to be considered by the Sessions Court on committal and not by the learned Magistrate. In such circumstances, I find no reason to interfere with the impugned order passed by the learned Magistrate. Petition is dismissed. 2nd September, 2010 (M.Sasidharan Nambiar, Judge) tkv