Judgment:
D.M. Patnaik
1. The petitioners, accused persons in a complaint case for offence under Section 395, IPC, assail the order dated 28-11-1994 of the Judicial Magistrate, First Class, Baramba issuing processes following an enquiry under Section 202 of the Code of Criminal Procedure (for short, 'the Code'). The allegation was that the petitioners on 23-1-1994 in the dead of the night snatched away gold necklace from the person of the opposite party and removed a sum of Rs. 1200/- from her house. During the enquiry under Section 202 of the Code, the Magistrate examined five witnesses out of the six. This is challenged by the petitioners on the ground that it was mandatory on the part of the Magistrate to examine all the six witnesses.
2. Mr. S. S. Das, learned counsel for the petitioner raised two contentions in support of his case. Firstly, it was submitted that since the opposite party had lodged an FIR with the police it was obligatory on the part of the Magistrate to stay the proceeding in the complaint case until police submitted a final report; and secondly the Magistrate should have examined all the six witnesses named by the complainant as per the mandatory provision of proviso (2) to Section 202 of the Code. In support of the second contention Mr. Das relied on two decisions of the Division Bench of this Court in the cases of Goku ananda Mohanty v. Muralidhar Malik 47 (1979) CLT 244, and Dhaneswar Behara v. State of Orissa 1987 (II) OLR 562 and a single Bench decision in the case of Omprakash Sahu v. Manmohan Mohanty and Anr. : 57 (1984) CLT 355.
3. So far as the first contention is concerned, the impugned order indicates that the complainant herself stated that the police did not take any action for which she filed the complaint case. I may say that if the Magistrate was satisfied that there was no progress in the investigation question of staying the proceeding in the complaint case did not arise. Therefore, this contention of Mr. Das cannot be accepted.
However, the second point so far it relates to examination of all the witnesses needs consideration.
4. The language employed in Sub-section (2) proviso to Section, 202 of the Code is plain in its meaning. It prescribes that, in a complaint case if the Magistrate is satisfied that the offence alleged is an offence exclusively triable by the Court of Session, the Magistrate is bound to examine all the witnesses for the complainant. The choice of examining any number of witnesses as per the plain reading of the language of the section itself is not left with the complainant.
Mr. B. S. Mishra, learned counsel for the opposite party submitted that the complainant is free to examine his own witnesses and the Magistrate cannot compel him to examine all the witnesses. In support of this connection Mr. Mishra relied on three single Bench decisions in the cases of Dinabandhu Das and Ors. v. Batakrushna Das and Ors. :72 (1991) CLT 518, Brajabandhu Mohapatra and Ors. v. Trinath Rout :(1996) 10 OCR 538 and the decision reported in 1992 Cri LJ 1716 Rabindraprasad Singh and Ors. v. Lilibala Singh and Ors.
5. In all the three decisions cited by Mr. Mishra it has been held that 'all the witnesses' would mean, the witnesses which the complainant wants to examine. But in my view, at the first instance choice should not be left to the complainant unless the complainant declines to examine any witness for any reason and informs the Court accordingly. To read the language of the Code the way it is submitted by Mr. Mishra would go against the intent and purpose of the section. Secondly this is in direct conflict with the proposition laid down by the two Division Bench cases referred to above. I may point out that in none of these Single Bench decisions of this Court, the two Division Bench cases were brought to the notice on the point. In the case of Gokulananda Mohanty (supra) the Division Bench after elaborate discussion of the scope of Section 202, Sub-section (2) proviso held as follows:
'...But the setting in which the pro iso to Sub-section (2) of Section 202 occurs, we are inclined to agree with the submission of Mr. Patnaik for the petitioners that the legislative intent was to make a clear provision that in respect of cases exclusivley triable by the Court of Session it was obligatory upon the Magistrate to proceed to enquire before issue of process. While in other cases enquiry would be discretionary once the Magistrate was of the opinion that an offence exclusively triable by the Court of Session alleged to have been committed, the proviso obliged him to proceed to enquire and at such enquiry to call upon the complainant to produce his entire evidence'.
The Division Bench in the case of Dhaneswar (supra) followed the above principle lald down in the case of Gokulananda.
6. I may say that 'all the witnesses' would mean only material witnesses from among the list of witnesses named in the complaint petition. Needless to point out that material witnesses include 'eye-witnesses' to the occurrence in a case which depends on such eye witness, or in a case depending on circumstantial evidence the evidence of those witnesses who establish the circumstance which unerringly point out to prove the accusation. The list of witnesses in the complaint petition may sometime include material witness and also other formal witness. While it is obligatory on the part of the Magistrate to examine all material witnesses, it gives a choice to the complainant to intimate the Court that he does not want to examine any particular witness for some tenable reason on the ground that the evidence of that witness is of forma nature that it would not help disclosing the occurrence alleged. But the complainant has no choice to keep back examination of any material witness because, if he does so at that stage, this will take the accused persons by surprise and may cause prejudice if the witness is examined during the trial.
7. After the enquiry under Section 202 of the Code is concluded, once the Magistrate is satisfied that the materials produced warrant a process to be issued, he directs the accused to be produced before him and thereafter proceeds to comply with the provisions of Section 208, Cr PC relating to supply of copies etc. Thereafter he commits the accused to the Court of Session as per the provisions of Section 209, CrPC. At that committal stage the Magistrate is merely to ascertain whether the offence as disclosed appears to him an offence triable exclusively by the Court of Session. It is not open to him at that stage to hold that a case has been made out on merit (see decision in the case of Sanjaya Gandhi v. Union of India and Ors. : AIR 1978 SC 514).
The above principle can be made applicable while dealing a case under Sub-section (2) proviso to Section 202 of the Code since materials are necessary only to judge the prima facie nature of the case to issue process.
8. In the present case there is no material to hold that the single witness left out by the Magistrate is either an eye-witness to the occurrence in the complaint petition, or that he is a formal witness whose evidence would not help to disclose the occurrence alleged. If the happens to be an eye-witness to the occurrence or a material witness, then the Magistrate is bound to examine him and non-examination of the witness will be a serious defect since it will be against the provisions of the Code. But non-examination of such a material witness can be only at the risk of the complainant. Therefore, relying on the decisions in the cases of Gokulananda and Dhaneswar (supra) it would be appropriate to quash the impugned order. But I am unable to accept the contention of Mr. Das that the entire proceeding should be quashed.
9. In the result, the revision is allowed. The impugned order dated 28-11-1994 of the Magistrate is set aside. The case is remitted back to the Magistrate. The Magistrate should ascertain from the complainant if the witness not examined is a material witness and unless the complainant declines to examine the witness for any reason whatsoever the Magistrate stall examine the witness and pass an appropriate order afresh in accordance with law. The stay granted vide order dated 9-12-1994 in Misc. Case No. 1020 of 94 is vacated.