Mirapa Suguna vs State of Andhra Pradesh and others

This Criminal Petition is directed against the order in Crl.MP No.1204 of 1999 in PRC No.56 of 1998 on the file of Additional Judicial First Class Magistrate, Vizianagaram, dated 7-5-1999 refusing to summon three witnesses u/s 311 of Code of Criminal Procedure at the PRC stage.

The facts relevant to this Criminal Petition are that the petitioner-complainant examined herself as PW1 and she also examined PWs.2 to 5 on her behalf. Her advocate filed a Memo stating that no further witness will be examined. Thereupon, the Court has taken cognizance of the offences under Sections 304, 440, 506 and 509 read with Section 34 of Indian Penal Code and issued summons to the respondents-accused. Then the case was posted for orders. At this stage, the petitioner-complainant filed a petition u/s 311 of Cr.PC to summon a Doctor, Sub-Inspector of Police and her son by name M. Suresh Kumar, The respondents opposed the petition on the ground that the proceedings are being protracted and they have been harassed. The learned Magistrate considered the contentions of both sides and dismissed the petition. Hence, the petitioner-complainant has approached this Court u/s 482 Cr.PC.

The short question raised by Sri Venkateswara Rao Gudapati, learned Counsel for the petitioner is as under:

"Whether it is incumbent upon the Magistrate to call upon the complainant to produce all the witnesses whom she wants to examine."

Sri Venkateswara Rao relied upon Ramachandra Rao v. B. Ramachender, 1979 (2) APLJ 299 (DB) and contended that the proviso to Section 202(2) Cr.PC is mandatory and that all the witnesses and not some witnesses have to be examined by the complainant. Sri G. Ram Gopal, learned Counsel for the respondents-accused on the other hand contended that although the word "shall" is employed therein, it is not a mandatory provision and that it is open to the complainant to examine some of the material witnesses only. Thus, he supported the impugned order.

It is true that this question is no longer res Integra. A Division Bench of this Court in Ramachandra Rao''s case (supra) held:

"Where the case is one triable exclusively be a Court of Session under the proviso to Clause (2) of Section 202 it is mandatory on the part of the Magistrate to call upon the complainant to produce all his witnesses and examine them on oath. The word used is "all" and "all" does not mean "some". He has to perform the statutory functions before issuing process in connection with the offences triable by a Court of Session. Though the committal proceedings as contemplated by the old Code have been abolished, Section 202 evolved a new procedure of examination of the witnesses. The examination of the witnesses is not a mere formality. This provision has been incorporated in the Code so that the accused has full information about the allegations about him and to enable him to prepare for his defence. The section while on one hand is intended to restrain the Magistrate from refusing to take cognizance of the offences after examining only some witnesses it is also intended to give a fair and reasonable opportunity to the accused to get adequate information about the charge against him to prepare his defence. Section 208 casts a duty on the Magistrate to furnish the accused free of cost with copies of all the statements of witnesses examined by him. This provision is of great importance not only to the complainant but also to the accused. The object and the context in which the words "the Magistrate shall examine all witnesses" appear that it is a mandatory provision which must be complied with. In a private complainant unless the witnesses are examined as contemplated by Section 202(2) the accused will not be in a position to point out any contradictions when they give evidence in the Court of Sessions. The accused can across-examine the witnesses with regard to their earlier statements in the Court of the Magistrate, and point out the contradictions. It is no doubt true that the accused does not come into the picture in the committal Court. After the process is issued the accused appears and the case is made over to the Court of Session. Though he may not have a right in the Court of the Magistrate he has certainly a right to cross-examine the witnesses in the Sessions Court with reference to the statements made by them earlier in the Court of a Magistrate and therefore, it cannot be said that the accused is not prejudiced at that stage. After the process is issued the accused has a right to compliant that the mandatory provisions of Section 202(2) Cr.PC have not been complied with."

It is evident that a duty is cast upon the Magistrate to call upon the complainant to examine all the witnesses, but not some witnesses. In that view of the matter, the petition filed by the complainant u/s 311 Cr.PC should have been allowed. The Memo filed earlier, in such a case, is fit to be ignored. Hence, the impugned order is liable to be set aside.

In the result, the Criminal Petition is allowed and the order in Crl.MP No.1204 of 1999 in PRC No.56 of 1998 dated 7-5-1999 is set aside and the same is allowed. The learned Magistrate shall issue summons to three witnesses whom the petitioner wants to examine and on the basis of the evidence of PWs.1 to 5, who are already examined, and the evidence to be adduced, it may be considered whether it is a fit case for committal to the Court of Session or not.