IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.710 of 2010 SIDHI KUMAR SHARMA Versus STATE OF BIHAR THRU.LAW SECRE. ----------- 2 28.9.2010 Counsel for the petitioner and the State. The petitioner is the complainant of Complaint Case No.266 of 2006 filed under sections 147, 148, 149, 302, 201 of the Penal Code and section 26 of the Arms Act. It is stated on behalf of the complainant that he has already examined four witnesses in the case and despite summons, the Doctor has not turned up for his deposition under section 202 Cr.P.C. The complainant states that the learned Magistrate on the basis of the existing material on record may pass appropriate order of taking cognizance. Learned counsel for the petitioner submits that the learned Magistrate erred in law not construing the proviso of section 302 Cr.P.C. He submits that the requirement of proviso of sub-section (2) of section 202 Cr.P.C. is that the learned Magistrate would grant an opportunity to the complainant to examine all his witnesses. In case if the complainant does not want to examine some witnesses, the learned Magistrate cannot force him to examine that particular witness. At times the witnesses can be gained over or for some other reason the witness concerned may not like to depose on account of efflux of time. This very issue came for consideration before a Division Bench of this court in the case of Narendra Singh & 2 Ors Vs State of Bihar, reported in 1988 PLJR 216 where it has been held that it would not be obligatory on the part of the Magistrate to wait till all the witnesses named in the complaint is examined. In case the complainant does not want to examine all the witnesses named in the complaint petition or otherwise, the learned Magistrate would consider the question whether accused should be summoned to face trial or not. 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 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 3 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.” It appears that recently the Apex Court in the case of Shivjee Singh vs Nagendra Tiwary & Ors, reported in 2010(3) P.L.J.R.(SC) 133 has held that the word „all‟ used in the proviso is qualified by word “his”. This implies only those witnesses are required to be examined whom complainant considers material to make out a prima facie case. The Apex Court further held that 4 KHAN examination of all witnesses cited in complaint or whose names are disclosed by complainant in response to directions of the Magistrate is not a condition precedent for taking cognizance and issue of process against persons named as accused in complaint. Consequence of non-examination of other cited witnesses is to be considered at the trial. Learned counsel for the petitioner submits that the complainant (petitioner) has already examined four witnesses and despite summons the Doctor has not turned up for his deposition. The complainant does not want to prolong the trial on the aforesaid count any longer as already four years have elapsed. In view of the fact and settled proposition of law, I direct that the learned Magistrate to proceed in the matter and pass appropriate order on the point of cognizance within three weeks from the date of receipt/production of a copy of this order. The Magistrate would not insist for examination of the Doctor or any other witnesses as the complainant does not want to examine any witness further in enquiry under section 202 Cr.P.C. It is made clear that this court has not expressed any opinion on the merits of the case. Let this order be communicated through fax at the cost of the petitioner. (S.P.Singh,J) 5