ORDER
N.G. Karambelkar, J.
1. By this common order Criminal Revision 105/99 and Criminal Revision 123/99, are being disposed of as the two arise out of a common order dated 30-3-1999 passed by Judicial Magistrate First Class, Guna in Criminal Case No. 161/99 and a common question of law is involved therein. By the impugned order, learned Magistrate, having taken cognizance of the offence against the petitioners on a private complaint filed by respondent No. 1 has issued process under Section 204 of Criminal Procedure Code. The order impugned has been challenged on the ground that because of non-compliance with proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure, it is vitiated.
2. It is not disputed before me that the learned Magistrate took cognizance of the offence which was exclusively triable by the Court of Session . He, while holding inquiry under Section 202 of the Code of Criminal Procedure took cognizance of the offence and issued processes without examining four witnesses included in the list submitted by the complainant along with the complaint. Two witnesses out of the aforesaid four, where police officers required to appear along with police case-diary. However, Police Station Officer Mr. Hemant Tiwari appeared along with case diary and was examined. However, witnesses at Serial Nos. 6 and 7, who were private persons, were not produced by the complainant and therefore, could not be examined by the learned Magistrate.
3. The short legal point raised by the petitioners is that proceedings before the Magistrate are vitiated and rendered illegal for non-compliance with proviso to Sub-section (2) of Section 202 of the Criminal Procedure Code in as much as that the learned Magistrate failed to examine all the witnesses before issuing process under Section 204 of the Criminal Procedure Code (hereinafter referred to as Code). It was argued on behalf of the petitioners that under proviso to Sub-section (2) of Section 202 of the Code, requirement to examine all the witnesses before issuing process was mandatory and failure on the part of the learned Magistrate to examine all the witnesses vitiated the proceedings as he was not competent to take cognizance of the offence and to issue process without complying with the mandatory provision. Reliance was placed on the decision in the case of Vinod Kumar Shivhare v. Tarachand (Misc. Cri. Case No. 102/99) (Since reported in 2001 Cri LJ 2970) (unreported) by the learned single Judge of this Court and Baji v. State of M.P., reported in 1981 Jab LJ 684 : (1981 Cri LJ 1558) , Rosy v. State of Kerala reported in 2000 Cri LJ 930 : (AIR 2000 SC 637), in support of their contention. Learned counsel appearing for the respondents rebutting the arguments submitted that the contention put forth on behalf of the petitioners was misconceived. Placing reliance on the decision of Rosy v. State of Kerala (supra), learned counsel for the respondents contended that it squarely answers the issue raised on behalf of the petitioners.
4. Having heard the learned counsel on the two sides at length, I do not find any merit in the revision-petitions. It would be suffice to say that the decision in the case of Vinod Kumar Shivhare v. Tarachand (2001 Cri LJ 2970) (Madh Pra) and Baji v. State of M.P. (1981 Cri LJ 1558) (Madh Pra) (supra) have no bearing as regards controversy in the instant case. The decision in the case of Rosy v. State of Kerala (2000 Cri LJ 930) (SC) (supra) squarely answers the issue raised by the petitioners, wherein it has been held that non-examination by the Magistrate of all the witnesses included in the list during inquiry under Section 202 of the Code is not mandatory. In the aforesaid case it was held that :–
When the offence, sought to be taken cognizance of by the Magistrate, is exclusively triable by the Court of Session, the statute does not expressly provide for nullification of the committal order as a consequence of non-compliance of proviso to Sub-section (2) of Section 202, but provides that unless prejudice is caused, the order is not to be set aside. This would mean that during inquiry under Section 202, when Magistrate examines the witnesses on oath, as far as possible proviso is to be complied with but the mandate is not absolute. Further where objection as to how prejudice was caused was not raised at earliest stage, fresh inquiry into Section 202 is unnecessary.
It was further observed by His Lordships Thomas, J. , in paragraph 25 of the judgment that :–
25. Thus, I have no doubt that the proviso incorporated in Sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the Magistrate, but a compelling duty on him to perform in such cases. I wish to add that the Magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course if the complainant requires the help of the Court to summon such witnesses it is open to the Magistrate to issue such summons, for there is nothing in the Code which prevents the Magistrate from issuing such summons to the witnesses.
5. Apart from the above, I wish to further add that the contention putforth on behalf of the petitioners is not sustainable in the light of scheme and object underlying in Section 207, 208 and 209 of the Code. The proviso to Sub-section (2) of Section 202 of the Code could not be interpreted so as to exclude the discretion of complainant in the matter of selection of witnesses. It could not be interpreted and construed to mean that learned Magistrate could compel the complainant to examine all the witnesses of the list submitted by him. The proviso on its proper interpretation simply enjoins a duty on the Magistrate to call upon the complainant to produce all witnesses. His legal obligation is limited to calling upon the complainant and no further. Therefore, it is the discretion of the complainant to produce witnesses of his choice. He is the person to decide the number of witnesses to be produced for examination taking into consideration the aspect of its sufficiency to prove the allegations against the accused. As far as the Magistrate, a duty is cast upon him to examine all the witnesses that are produced by complainant or also those witnesses whom he wants to produce with the assistance of the Magistrate. In my view, a reference to the provisions of Section 207, 208 and 209 of the Code along with Section 202 would be useful to elaborate the aforesaid view. The said provisions are reproduced below :–
202. Postponment of issue of process —
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issues 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 persons 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 complaint 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 witness 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 a police station except the powers to arrest without warrant. 207. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost a copy of each of the following :-- (i) the police report; (ii) the first information report recorded under Section 154.
(iii) the statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under Sub-section (5) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173;
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused :
Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to Inspect it either personally or through pleader in Court.
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208. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost a copy of each of the following :
(i) the statements recorded under Section 200 or Section 202, of the persons examined by the Magistrate ;
(ii) the statements and confessions, if any, recorded under Section 161 or Section 164.
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely :
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof direct that he will only be allowed to inspect it either personally or through pleader in Court.
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209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall —
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session and subject to the provisions, of this Code relating to bail, remand the accused to custody until such commitment has been made;
(b) subject to the provisions of this Code relating to bai remand the accused to custody during and until the conclusion of the trial;
(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the public prosecutor of the commitment of the case to the Court of Session.
6. A Sessions Court takes cognizance of the case only after the case is committed to it under Section 209 of the Code. The Magistrate is required to commit the case to the Court of Session under Section 209 of the Code whether it is instituted on a police report or otherwise. When the police files a charge-sheet under Section 173 of the Code, it produces all the evidence on which it rests its case for proving allegations against the accused. All such evidence produced with the charge sheet has to be made known to accused under Section 207 of the Code wherein the Magistrate has a duty to furnish the copies of the documents referred to therein. The sole object behind Section 207 of the Code is to apprise the accused of the total evidence likely to be used against him in proving allegations against him. However, during the course of trial, the prosecutor for various reasons has discretion not to produce certain witnesses for examination although those may be listed in the charge sheet. The various reasons for non examination of witnesses may be (i) that those might have been won over by the opposite (ii) their examination may not be necessary to avoid muliplicity etc. The discretion is left to the prosecutor as regards the production of evidence. He is the judge to decide the sufficiency of evidence to prove the allegations and it is in this background that he may not examine some witnesses out of the list of witnesses included in the charge sheet. In a case of complaint by a private person, prosecutors role is discharged by the complainant himself and it is he who has choice to decide as to what evidence is to be produced whether documentary or oral and therefore he has to decide the number of witnesses as well. As in the case instituted on a police report, the evidence contained in charge sheet under Section 173, Cr.P.C. is the total evidence on the basis of which, the Magistrate is required to commit the case, so in the case instituted on a private complaint, the evidence produced by the complainant in an inquiry before the Magistrate under Section 200 and 202 of the Code would be the total evidence which would form the basis for the commitment of the case and in both the cases, the Sessions Court cannot go beyond the evidence so produced by the police in the charge sheet and the complainant in inquiry under Section 200 and Section 202 of the Code. Therefore, what is required under proviso to Sub-section (2) of Section 202 of the Code is that the Magistrate has, infact to call upon the complainant to produce all the evidence he wishes to produce and it is for the complainant to decide as to what evidence he would produce. The requirement under the proviso is that Magistrate has to examine the witnesses produced by the complaint or those whom he wants to produce with the assistance of the Court in producing their attendance.
7. For the reasons stated above, I find the petition devoid of any merit and it is, therefore, dismissed.