Basdeo vs Swami Bhagnanana and Another

H.N. Eapoor, J.—This is a petition u/s 482 Code of Criminal Procedure for quashing the orders dated 15-6-1976 and 17-9-1975 passed by the Magistrate allowing the application of one Ram Kumar that his evidence be allowed to be adduced u/s 311 Code of Criminal Procedure in this case and further ordering that Ram Kumar along with two other witnesses, namely, Rajendra Kumar and Umrao should be present in Court on the subsequent date. The case was brought against the applicant under Sections 403, 406 and 379 IPC on the basis of a complaint filed by Swami Bhagnanand. After the applicant was summoned as an accused in that case, Swami Bhagnanand examined himself on 10-9-1975 and stated that he did not wish to produce any other witness. The case was ordered to be put up for arguments on 15-9-1975. On that very date, Ram Kumar gave an application for permission to produce documentary evidence. That application too was ordered to be put up on 15-9-1975. On 15-9-1975, Ram Kumar gave another application for taking proceedings u/s 193 IPC against Swami Bhagnanand and for allowing the evidence of Ram Kumar to be recorded u/s 311 Code of Criminal Procedure. That application was ordered to be put up on 17- 9-1975 when the learned Magistrate passed the impugned order allowing the application of Ram Kumar for being examined as a witness u/s 311 Code of Criminal Procedure and further ordering that he should be present along with Rajendra Kumar and Umrao on the next date of hearing, that is, on 18-10-1975.

In this case notice was issued to Swami Bhagnanand but he has not put any appearance. No counter affidavit has been filed on behalf of the State. Learned State Counsel is present in Court. learned Counsel for the applicant has argued that u/s 242 Code of Criminal Procedure the complainant alone can be allowed to adduce evidence and no other person can be allowed to do so. According to him, the accused is to be discharged u/s 245 Code of Criminal Procedure or charge can be framed against him u/s 245 Code of Criminal Procedure only on the basis of the evidence adduced by the complainant. There appears to be force in this argument. It is true that Section 311 Code of Criminal Procedure is widely worded and authorises the Court to examine any person present in Court or to summon any person as a witness at any stage or any enquiry, trial or other proceedings under this Code. But Section 246 Code of Criminal Procedure clearly provides that charge is to be framed on the basis of the evidence adduced u/s 244 Code of Criminal Procedure. It was, therefore, not proper for the learned Magistrate to have allowed Ram Kumar and his witnesses to adduce evidence when the complainant Swami Bhagnanand himself did not want to examine any other witness. In case Ram Kumar and others were so interested they could have filed a fresh complaint.

The petition is accordingly allowed and the orders of the Magistrate dated 15-6-1976 and 17-9-1975 are set aside and the Magistrate is directed to proceed no the basis of the evidence already recorded. The stay order is vacated.