Satish Tyagi Vs. Radha Kishan Tyagi and ors. - Court Judgment

Excerpt:
criminal - diet money - sections 200 and 204 of criminal procedure code,1973(cr.pc) and sections 34,294,323,452 and 506 of indian penal code,1860(ipc) - private complaint filed by petitioner against respondents under sections 34,294,323,452 and 506 of ipc - during enquiry petitioner filed application under chapter xv of cr.pc for calling his witness - trial court directed to petitioner to deposit diet money and traveling expenses of witness - feeling aggrieved, petitioner filed revision petition before session court - session court affirmed order of trial court - hence, present petition - held, as per rules expenses for calling of witnesses in non-bailable cases are to be paid by state - in present case complaint was at stage of sections 200 or 202 of cr.pc, for which complainant was required to call or produce his witnesses - at this stage it cannot be clear that whether case is bailable or non-bailable - hence, expenses of witnesses at this stage need not be paid by state - order of lower court accordingly upheld - petition dismissed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 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 session; provided 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.orderbrij mohan gupta, j.1. heard.this revision is for impugning the order dated 7th march, 2006, passed by sessions judge, gwalior in criminal revision no. 65/06, whereby the learned judge has affirmed the order dated 28-2-06 passed by the jmfc, gwalior in a case instituted on a private complaint filed by the petitioner against the respondent nos. 1 to 4, by which the learned magistrate has directed the complainant to deposit the diet money and travelling expenses of the witnesses, requested to be summoned by him.2. it is submitted by shri pathak that with regard to an incident happened on 18-7-05 petitioner lodged a report at police station, gwalior on which crime no. 551/05 was registered for the offence punishable under sections 452, 323, 506/34 and 294 of ipc. during investigation, injured died. despite this fact, police filed challan for the aforementioned offences without adding the offence of murder under section 302 of ipc. therefore, the petitioner was compelled to file the complaint. during enquiry, under chapter xv of cr.pc., petitioner filed one application dated 6-1-06 for calling his witnesses, on which the learned magistrate directed the petitioner to deposit the diet money and travelling expenses of the witnesses vide order dated 28-2-06. feeling aggrieved, the petitioner filed the revision petition before the sessions judge and vide impugned order dated 7th march, 2006, the learned judge has affirmed the order passed by the learned magistrate.3. the impugned order has been assailed by shri pathak on the ground that in all non-bailable cases diet, money and travelling expenses are to be borne by the state, as provided by rule 558 of rules and orders criminal issued tor the guidance of the criminal courts. in support he has further drawn attention on an order of this court passed in mohar singh v. state of m.p. 1992 (11) mpwn 43.4. shri bhardwaj tor the respondent no. 5/state has submitted that a private complaint has been filed by the petitioner and aforementioned expenses are to be borne by the complainant.5. admittedly, the complaint is being dealt with by the learned magistrate under chapter xv of cr.pc, which includes section 200 to 203 of cr.pc. on filing of a complaint, as provided by section 200 of cr.pc magistrate has to examine the complainant and the witnesses present along with him. the provision of section 201 of cr.pc deals with the procedure to be adopted by a magistrate, where he is not competent to lake cognizance of the offence, which is irrelevant for the present dispute. similarly, the provision of section 203 of cr.pc is also not relevant at present, as it authorizes a magistrate to dismiss a complaint, if on the statements of the witnesses and as per the result of inquiry if any, he forms an opinion that there is no sufficient ground for proceeding. remaining provisions of section 202 of cr.pc are as under: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 an 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 session; or(b) where the complainant has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.(2) in an inquiry under sub-section (1), the magistrate may, if he thinks fit, take evidence of witnesses on oath:provided 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.(3) if an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this code on an officer in charge of police station except the power to arrest without warrant.6. on perusal of the petition, copy of the application and the orders of both the courts below, it does not appear as to at what stage, le., at the stage of section 200 or 202, cr.pc the application for calling the witness has been filed by the petitioner. if both the provisions are to be seen, it appears that as provided by section 200, cr.pc. magistrate is to examine the complainant and the witnesses present. that shows that if the complainant brings his witnesses along with him, those witnesses are to be examined by the learned magistrate. as provided by section 202, cr.pc, it is not a case of the petitioner that under sub-section (1) of section 202 of cr.pc, the learned magistrate himself is enquiring the complaint or has directed an investigation to be made by a police officer or by any other person: admittedly, the complaint has been filed for an offence which is exclusively triable by the court of sessions. in such complaints, a magistrate is not empowered to order an investigation to be made by the police, instead he has to call upon the complainant to produce all his witnesses and examine them on oath. on perusal of this provision also, it appears that it is responsibility of the complainant to produce of his witnesses for their examination.7. rule 558 of rules and orders (criminal) on which shri pathak for the petitioner has placed reliance, goes as under:558. subject to the instructions hereinafter contained, the criminal courts arc authorized to pay the expenses-(a) of complaints and witnesses, whether for the prosecution or the defence-(i) in cases prosecuted, instituted or carried on by, or under the orders of, or with the sanction of government or any judge, magistrate or other public officer acting as such,(ii) in cases in which the presiding officer considers such payment to be directly in furtherance of the public interest, and(iii) in all non-bailable cases;(b)of witness summons or recalled by the presiding officer on his own motion under section 540 of the code of criminal procedure:provided that no payment shall be made to any witness on the part of government where the expenses for the attendance of such witness have been deposited in court under section 216, 244 or 257 of the code.explanation: cases instituted by police officers on other persons authorized by a municipal committee under the central provinces and berar municipalities act, 1922 (ii of 1922), or rules or bye-laws made thereunder are not cases falling under clause (a)(i) of this rule.it is not a case of the petitioner, nor pressed during arguments, that the dispute relates to sub-clause (ii) of clause (a) of rule 558. shri pathak has only emphasized on sub-clause (iii) of clause (a) of this rule that in all non-bailable cases the expenses of the witnesses will be borne by the state. undisputedly, some of the offences for which the complaint has been filed are non-bailable. however, mere filing of a complaint under any of the offences, does not and cannot make it a bailable or a non-bailable case. unless a magistrate after examining the complainant and his witnesses as aforesaid, to arrive at the conclusion that some offence, if any, has been committed, on which cognizance is required to be taken by him and registers the complaint for that offence, issuing process under section 204, cr.pc, it cannot be said that a complaint has become a case. then only it is to be seen as to whether the case a bailable or a nonbailable case. after taking such cognizance for a non-bailable case, the provisions of rule 558 will come in picture and a complainant can seek benefit of these provisions under the rule.8. admittedly, at present the complaint is at the stage of section 200 or 202, cr.pc, for which the complainant is required to call or produce his witnesses. if he seeks the order of the court for this purpose, he has to deposit the expenses. in my considered opinion, the provision of rule 558 of the rules, will not be applicable to the present complaint at this stage. on this ground the impugned order does not appear erroneous nor an abuse of the process of the court.9. the facts of the case of mohar singh (supra), are different. after closing of the evidence, an application was filed requesting to summon some documents and also six witnesses. at that stage, the dispute arose as to whether the expenses of the witnesses are to be borne by the state or by the complainant. it was observed that in all non-bailable cases the expenses of the witnesses are to be borne by the state. in the present case, this dispute arose at different stage, that is before registration of the complainant and taking of the cognizance.consequently, the petition is dismissed.

Judgment:
ORDER

Brij Mohan Gupta, J.

1. Heard.

This revision is for impugning the order dated 7th March, 2006, passed by Sessions Judge, Gwalior in Criminal Revision No. 65/06, whereby the learned Judge has affirmed the order dated 28-2-06 passed by the JMFC, Gwalior in a case instituted on a private complaint filed by the petitioner against the respondent Nos. 1 to 4, by which the learned Magistrate has directed the complainant to deposit the diet money and travelling expenses of the witnesses, requested to be summoned by him.

2. It is submitted by Shri Pathak that with regard to an incident happened on 18-7-05 petitioner lodged a report at Police Station, Gwalior on which Crime No. 551/05 was registered for the offence punishable under Sections 452, 323, 506/34 and 294 of IPC. During investigation, injured died. Despite this fact, police filed challan for the aforementioned offences without adding the offence of murder under Section 302 of IPC. Therefore, the petitioner was compelled to file the complaint. During enquiry, under Chapter XV of Cr.PC., petitioner filed one application dated 6-1-06 for calling his witnesses, on which the learned Magistrate directed the petitioner to deposit the diet money and travelling expenses of the witnesses vide order dated 28-2-06. Feeling aggrieved, the petitioner filed the revision petition before the Sessions Judge and vide impugned order dated 7th March, 2006, the learned Judge has affirmed the order passed by the learned Magistrate.

3. The impugned order has been assailed by Shri Pathak on the ground that in all non-bailable cases diet, money and travelling expenses are to be borne by the State, as provided by Rule 558 of Rules and Orders Criminal issued tor the guidance of the Criminal Courts. In support he has further drawn attention on an order of this Court passed in Mohar Singh v. State of M.P. 1992 (11) MPWN 43.

4. Shri Bhardwaj tor the respondent No. 5/State has submitted that a private complaint has been filed by the petitioner and aforementioned expenses are to be borne by the complainant.

5. Admittedly, the complaint is being dealt with by the learned Magistrate under Chapter XV of Cr.PC, which includes Section 200 to 203 of Cr.PC. On filing of a complaint, as provided by Section 200 of Cr.PC Magistrate has to examine the complainant and the witnesses present along with him. The provision of Section 201 of Cr.PC deals with the procedure to be adopted by a Magistrate, where he is not competent to lake cognizance of the offence, which is irrelevant for the present dispute. Similarly, the provision of Section 203 of Cr.PC is also not relevant at present, as it authorizes a Magistrate to dismiss a complaint, if on the statements of the witnesses and as per the result of inquiry if any, he forms an opinion that there is no sufficient ground for proceeding. Remaining provisions of Section 202 of Cr.PC are as under:

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 an 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 Session; or

(b) where the complainant has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.

(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided 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.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of police station except the power to arrest without warrant.

6. On perusal of the petition, copy of the application and the orders of both the Courts below, it does not appear as to at what stage, Le., at the stage of Section 200 or 202, Cr.PC the application for calling the witness has been filed by the petitioner. If both the provisions are to be seen, it appears that as provided by Section 200, Cr.PC. Magistrate is to examine the complainant and the witnesses present. That shows that if the complainant brings his witnesses along with him, those witnesses are to be examined by the learned Magistrate. As provided by Section 202, Cr.PC, it is not a case of the petitioner that under Sub-section (1) of Section 202 of Cr.PC, the learned Magistrate himself is enquiring the complaint or has directed an investigation to be made by a police officer or by any other person: Admittedly, the complaint has been filed for an offence which is exclusively triable by the Court of Sessions. In such complaints, a Magistrate is not empowered to order an investigation to be made by the police, instead he has to call upon the complainant to produce all his witnesses and examine them on oath. On perusal of this provision also, it appears that it is responsibility of the complainant to produce of his witnesses for their examination.

7. Rule 558 of Rules and Orders (Criminal) on which Shri Pathak for the petitioner has placed reliance, goes as under:

558. Subject to the instructions hereinafter contained, the Criminal Courts arc authorized to pay the expenses-

(a) of complaints and witnesses, whether for the prosecution or the defence-

(i) in cases prosecuted, instituted or carried on by, or under the orders of, or with the sanction of Government or any judge, magistrate or other public officer acting as such,

(ii) in cases in which the presiding officer considers such payment to be directly in furtherance of the public interest, and

(iii) in all non-bailable cases;

(b)of witness summons or recalled by the presiding officer on his own motion under Section 540 of the Code of Criminal Procedure:

Provided that no payment shall be made to any witness on the part of Government where the expenses for the attendance of such witness have been deposited in Court under Section 216, 244 or 257 of the Code.

Explanation: Cases instituted by police officers on other persons authorized by a municipal committee under the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), or rules or bye-laws made thereunder are not cases falling under Clause (a)(i) of this rule.

It is not a case of the petitioner, nor pressed during arguments, that the dispute relates to Sub-clause (ii) of Clause (a) of Rule 558. Shri Pathak has only emphasized on sub-clause (iii) of Clause (a) of this Rule that in all non-bailable cases the expenses of the witnesses will be borne by the State. Undisputedly, some of the offences for which the complaint has been filed are non-bailable. However, mere filing of a complaint under any of the offences, does not and cannot make it a bailable or a non-bailable case. Unless a Magistrate after examining the complainant and his witnesses as aforesaid, to arrive at the conclusion that some offence, if any, has been committed, on which cognizance is required to be taken by him and registers the complaint for that offence, issuing process under Section 204, Cr.PC, it cannot be said that a complaint has become a case. Then only it is to be seen as to whether the case a bailable or a nonbailable case. After taking such cognizance for a non-bailable case, the provisions of Rule 558 will come in picture and a complainant can seek benefit of these provisions under the Rule.

8. Admittedly, at present the complaint is at the stage of Section 200 or 202, Cr.PC, for which the complainant is required to call or produce his witnesses. If he seeks the order of the Court for this purpose, he has to deposit the expenses. In my considered opinion, the provision of Rule 558 of the Rules, will not be applicable to the present complaint at this stage. On this ground the impugned order does not appear erroneous nor an abuse of the process of the Court.

9. The facts of the case of Mohar Singh (supra), are different. After closing of the evidence, an application was filed requesting to summon some documents and also six witnesses. At that stage, the dispute arose as to whether the expenses of the witnesses are to be borne by the State or by the complainant. It was observed that in all non-bailable cases the expenses of the witnesses are to be borne by the State. In the present case, this dispute arose at different stage, that is before registration of the complainant and taking of the cognizance.

Consequently, the petition is dismissed.