1. Petitioner has invoked the jurisdiction of this Court in terms of Section 561- A Criminal Procedure Code (for short hereinafter, Cr.P.C.) for quashing the entire proceedings drawn in the complaint titled as M/S Chenab Textile Mills vs Ramesh Pandey, on the grounds taken in the memo of petition. Respondent filed a complaint against the petitioner/accused for the commission of offence punishable under sections 406 & 408 of Ranbir Penal Code (for short hereinafter, RPC). Cognizance came to be drawn and process issued against the accused for the commission of offence under sections 406 and 408 RPC vide order dated 5.5.2007. Petitioner/accused appeared and came to be admitted to bail vide order dated 20.7.2007. Complainant/respondent herein was asked to lead evidence in support of the complaint, examined Sh. J. K. Nirmal, through whom complaint came to be filed, vide order dated 10.3.2008. The evidence of the complainant came to be closed vide order dated 18.3.2009. Complainant filed an application for allowing to produce witnesses namely T.P. Singh, mentioned in the list of witnesses and another namely Sabu Joseph on 29.4.2009. Petitioner/accused filed objections on 6.5.2009, came to be rejected vide order dated 26.8.2009. Thereafter accused filed an application for discharge, came to be rejected vide order dated 2.4.2010.
2. Learned counsel for petitioner argued that complainant has not appended the list of witnesses with the complaint in terms of section 204(1-a) Cr.P.C., therefore, the entire proceedings are without jurisdiction and abuse of process of law. Further he argued that the application filed by the petitioner came to be rejected illegally for the reason that there was no evidence which could be made basis for framing charge against the accused for the commission of offence punishable under section 408 RPC.
3. Both the arguments are devoid of force for the following reasons. As discussed hereinabove, complaint came to be filed in the year 2007, cognizance and process came to be issued on 5.5.2007, accused appeared and contested the complaint. The complainant has given the list of witnesses and the name of witness given in the complaint is Mr. T. P. Singh. Thus it cannot be said that the complainant has not complied with the mandate of section 204(1-a) Cr.P.C. Even otherwise the petitioner has contested the complaint right from his appearance till passing of order of charge dated 2.4.2010. Thus it cannot be said that it has caused any prejudice to the petitioner/accused.
4. Complainant has moved an application for examining T.P. Singh, the listed witnesses and also one Suba Joseph. The trial court vide order dated 26.8.2009 has declined to allow the complainant to examine the said witness. Least said is better because that order is not the subject matter at this stage. However, it is apt to mention herein that it is not mandatory that there should be more than one witness in the list of witnesses. There may be a case where there is only one witness or complainant is the lone witness. It is apt to reproduce para 10 of the judgment in case Pramila Mahesh Shah v. Employees State Insurance Corpn., 2002 Cr.L.J. 2454:
10. In Chaturbhuj v. Naharkhan (1958 Cri. L.J. 50) (Madh Pra) (supra), while dealing with Section 204(1-A) and (1-B) (as amended in 1955) of Criminal Procedure Code 1898, it has been held that having regard to the wordings of Section 204, Clauses (1-A) and (1- B), it is clear that filing of the list of prosecution witnesses is essential unless the complaint is the only witness in the case. It is also pointed out therein that it appears that along with summons or warrant issued under Sub-section (1), copy of the complaint ought to be sent to the accused. It appears that in this case, the Magistrate had not considered the said provisions as amended in 1955 and as such the Magistrate was directed to comply with provisions of Section 204(1-A) and (1-B) and after applying his mind to the same, proceeded with the trial of the case in accordance with law. The argument of learned counsel for petitioner is that the word used in section 204(1-a) Cr.P.C. is witnesses and it means the list of witnesses must be of more than one witness and not only one witness. This argument is fallacious. General Clauses Act, 1977 provides that the words used in singular could be read and include in plural and vice versa. Section 13 thereof is reproduced as under:
13. Gender and numberIn all Acts and Regulations unless there is anything repugnant in the subject or context, --
(1) words importing the masculine gender shall be taken to include females; and
(2) words in the singular shall include the plural, and vice versa. Thus the word witnesses include witness also. Therefore it can be safely held that if the complainant furnishes the list of witnesses of one witness that is substantial compliance of section 204(1-a) Cr.P.C.
Compliance of mandate of section 204(1-a) Cr.P.C. is not mandatory, it can be complied with later on also. The procedural laws are handmade of justice and the question of prejudice is of paramount consideration in respect of breach of procedural provisions.
5. Non-compliance of mandate of section 204(1-a) Cr.P.C. cannot vitiate the issuance of process or jurisdiction of the Court. At the best it can be cured at a later stage provided it has not caused prejudice to the accused. My this view is fortified by the judgment (supra). It is apt to reproduce para 19 herein: 19. The next ruling upon which the reliance has been placed by the learned A.P.P. is Madhavan Nambiar v. Govindan (1982 Cri LJ 683) (supra), wherein Kerala High Court has laid down that mentioning in the complainant itself of the names of witnesses, would be sufficient compliance of Section 204 (2) of Cr.P.C. and that non compliance of the provision does not automatically result in invalidating consequences or vitiate the entire trial, unless it has resulted in prejudice to the accused.
My this view is also fortified by the Full Bench judgment of this Court in case Abdullah Bhat v. Ghulam Mohd., 1972 Cr.L.J. 277. It is apt to reproduce para 8 herein:
8. We now turn to the question of fact; is there material in this case to justify a finding of prejudice? The facts bearing on this point, as may be gathered from the file, are that immediately after the accused put in their appearance in the Committing Court in obedience to the summons issued against them, the complainant filed a list of witnesses which he proposed to examine in the case. These witnesses were summoned and examined by the complainant and then cross- examined by the accused through their lawyer throughout. This would show that they had advance information of the witnesses which were actually examined during the commitment proceedings. To this may be added the fact that no objection was raised about the omission complained of till the case came to the Court of Session although the accused were represented throughout by a lawyer and the omission was so patent that an objection could be and should have been taken about it at an early stage in the committing Court. This is an important circumstance against the inference of prejudice under Section 537 Cr.P.C. which governs the present case, in that the explanation to the said section says that in determining whether any error, omission or irregularity in any proceedings under the Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection would and should have been raised at an earlier stage in the proceedings. In this stage of the matter no prejudice can be reasonably inferred to have been caused to the accused.
6. In the given circumstances it can be safely held that complainant has complied with the mandate of law and it is not a case of prejudice at all. It is apt to reproduce section 252 Cr.P.C. herein:
252. Evidence for prosecution
(1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.
7. In terms of the mandate of said provision the complainant has to give evidence in support of the complaint. After closure of the evidence the Court has to hear the complainant and accused and if the Magistrate finds that no case against the accused is made out, the Magistrate has to discharge the accused in terms of section 253 Cr.P.C. If the Magistrate is of the opinion that there is ground to presume that the accused has committed an offence triable under Chapter XXI Cr.P.C. and Magistrate is competent to try, shall frame charge in writing against the accused in terms of section 254 Cr.P.C.
8. Chapter XXI contains what procedure is to be adopted in warrant cases instituted on police report and instituted otherwise than on police report. The case in hand is a case instituted on a complaint otherwise than on police report. The Magistrate has rightly followed the procedure so far. However, whether dismissal of application filed by the complainant for examining the listed witness T.P. Singh and another witness, who is not listed, is right or wrong, I deem it proper not to comment. Filing of application on behalf of accused for discharge after closure of the evidence of complainant in terms of section 252 Cr.P.C. was not warranted at all for the simple reason that Magistrate had to follow the procedure contained in sections 253 and 254 Cr.P.C., as discussed hereinabove. The Magistrate after examining the contents of complaint and the statement of J. K. Nirmal came to the conclusion that there were grounds to presume that the accused has committed the offence punishable under section 408 R.P.C. Perusal of the material/record disclosed that the Magistrate has rightly drawn prima facie satisfaction. There is nothing on the file suggesting the fact that the cognizance drawn, process issued and framing of charge is in no way abuse of the process of court/law. While invoking the inherent jurisdiction in terms of mandate of section 561-A Cr.P.C. the court has to exercise it sparingly, cautiously and carefully. It is to be exercised in rarest of rare cases and has to keep in mind that it is not functioning as a court of appeal or revision.
9. The Apex Court has laid down the guidelines and parameters in cases Som Mittal v. Govt. of Karnataka, 2008 AIR SCW 1003; K.L.E. Society v. Siddalingesh, 2008 AIR SCW 1993; Reshma Bano v. State of Uttar Pradesh, 2008 AIR SCW 1998; State of A.P. v. Bajjoori Kanthaiah, AIR 2008 SCW 7860 and Baijnath Jha v. Sita Ram, 2008 AIR SCW 4614. The Apex Court has also laid down the paramaters/guidelines in case State of Andhra Pradesh v. Goloconda Linga Swamy, AIR 2004 SCW 3967. It is apt to reproduce para 8 of the judgment reported in AIR 2008 SCW 1993.
8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. 10. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. Having glance of the above discussion, this petition merits to be dismissed and the same is, accordingly, dismissed. Parties to cause their appearance before the trial court on 1.12.2010. Send down the record.