Ashok Kumar Singh @ Ashok Singh vs The State of Jharkhand and Ashok Kumar Choudhary

D.K. Sinha, J.—Petitioner has invoked the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure for the quashment of the order impugned dated 17.9.2007 by which the Chief Judicial Magistrate, Dhanbad refused to issue summons to the witnesses of the complainant in C.P. Case No. 500 of 2006.

Prosecution story in short was that the complainant had filed a complaint petition before the Chief Judicial Magistrate, Dhanbad against the opposite party No. 2 Ashok Kumar Choudhary, the then Superintendent of Jail, Dhanbad, stating, inter alia, that the accused being the Jail Superintendent of Dhanbad had not released him in spite of the ad interim bail order of the Jharkhand High Court recorded in Criminal Appeal No. 1126 of 2005 on 23.11.2005. But the complainant was detained in judicial custody wrongfully on 25th and 26th of November, 2005. An enquiry was conducted u/s 202 of the Code of Criminal Procedure in the complaint petition after recording the statement of the complainant on solemn affirmation and thereafter two witnesses were examined by the complainant. On 5.4.2007, the complainant filed a petition before the Chief Judicial Magistrate for issuance of summons to two official witnesses, named in the complaint petition in the column of complainant''s witnesses, but the Court rejected the application of the complainant on the sole ground of jurisdiction that the Court had no power in complaint petition to issue summons to the witnesses as there was no provision in the Code of Criminal Procedure.

Learned Sr. Counsel Mr. Jai Prakash submitted that every Court conducting an enquiry or holding a trial has authority to issue summons to the witnesses and such authority is inherent in nature. The Chief Judicial Magistrate, Dhanbad failed to take into consideration such aspect of the provision. In support of such contention, the learned Sr. Counsel relied upon the decision reported in Rosy and Another Vs. State of Kerala and Others, wherein the Apex Court observed:

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.

I reiterate that if the magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings.

Finally, the learned Sr. Counsel submitted that under the circumstances and in view of the proposition of law as propounded by the Apex Court, it was desirable that impugned order be quashed and the Chief Judicial Magistrate, Dhanbad be directed to issue summons to the official witnesses named in the complaint petition.

Mr. Md. Hatim, the learned A.P.P. opposed the contention of the learned Sr. Counsel and submitted that the proposition of law as propounded by the Apex Court was in relation to summoning the necessary witnesses and not to satisfy the whim and caprice of the complainant, who brought about the complaint petition to harass the official witnesses unnecessarily including the Trial Judge who convicted him. The Court, therefore, should be careful while issuing summons to the witnesses in an enquiry u/s 202 of the Code of Criminal Procedure.

Having regard to the facts and circumstances of the case, I find that the Apex Court propounded that there was no bar to issue summons to the witnesses in a complaint case if the complainant intended to seek indulgence of the Chief Judicial Magistrate in an enquiry to procure attendance of the witnesses in the witness box by issuing summons to them. But, at the same time, I find substance in the submissions of the A.P.P. that the Court should be careful while issuing summons to the witnesses in an enquiry u/s 202 of the Code of Criminal Procedure to satisfy the whims and caprice of the complainant intended to harass the official witnesses. I find from the complaint petition that the witness No. 3 Sri Ram Nath Prasad was the Additional Sessions Judge, F.T.C.-I, Dhanbad who had convicted the complainant and against such conviction, the complainant had preferred an appeal before this Court from where the complainant got ad interim bail during pendency of the appeal. In this regard, it would not be appropriate that the Trial Judge should be summoned as witness in the complaint petition that has been brought about by the convict-complainant. As regards summons to other witnesses, I do not find any illegality in issuing summons to them.

For the reasons stated above, this petition is allowed and the Chief Judicial Magistrate, Dhanbad is directed to issue summons to the witnesses for their examination, within a reasonable time, who have not been produced and examined on behalf of the complainant except against the witness Sri Ram Nath Prasad, Additional Sessions Judge, F.T.C.-I, Dhanbad and to proceed in accordance with law.

With this observation, the Criminal Miscellaneous Petition is allowed.