# Sanjay Kumar & Ors v. State of U.P. & Anr

- **Citation:** (2020) 7 ILRA 360
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-02
- **Case number:** Application U/S 482 No. 5705 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-ors-v-state-of-u-p-anr-45896
- **Pages:** 10

## Headnote

Criminal Procedure court - Section 202,
482 - Challenge to summoning order -
Only material witnesses refused to be examined
by complainant to make out a prima facie case
- Consequence of non-examination of to be
considered by Magistrate at the trial and not at
the stage of issuing summoning order -
Magistrate is only required to see of sufficient
ground made out to proved against accused.
Non-examination of all witnesses not material -
No error in procedure adopted.

Application rejected. (E-2)

List of cases cited:-
7 All. Sanjay Kumar & Ors. Vs. State of U.P. & Anr.
361

## Text

360 INDIAN LAW REPORTS ALLAHABAD SERIES
application of judicial discretion, mind and
reason has to be recorded before issuing
process against the accused/applicants. If
the court would compare the impugned
order
dated
02.05.2019
with
the
requirement of law mentioned under
Section 202 Cr.P.C. and elaborated by the
celebrated judgments of Hon'ble Apex
Court and coordinate benches of this court
mentioned
above,
this
court
is
of
considered view that the impugned order
only narrates the statement of complainant
and
the
witnesses
and
also
certain
documents/notice and nothing more. I am
afraid to gather even a whisper of
satisfaction of Magistrate concern, in the
impugned summoning order.

[24] On a bare perusal of the order
impugned, without having any shadow of
doubt, is cryptic and it is quite evident that
the learned Magistrate has acted in a most
perfunctory and casual manner. FIRSTLY;
Despite the fact, that applicants are
permanent residents of Delhi, he has not
held any inquiry for himself or directed the
police
to
hold
investigation,
as
contemplated under section 202(1) Cr.P.C.
and SECONDLY; The order impugned is
simply a bald narration of complaint case
and numbers of supporting witnesses and
documents. Accordingly, in exercise of
power under section 482 Cr.P.C. this court
sets-aside the impugned summoning order
dated 02.05.2019 passed by Additional
Chief Judicial Magistrate, Room No. 12,
Baghpat and remands the matter back for
fresh consideration de-novo.

[25] While remanding the matter
afresh, this Court expects from learned
Magistrate to hold an enquiry/investigation
afresh, as contemplated under section 202
(1) Cr.P.C. It is rather impossible to spell
out the form and shape of such a proposed
enquiry/investigation, but certainly all
those areas, which are enumerated in the
judgement, must be properly filtered before
recording his satisfaction by speaking order
and issuing any summon (if at all, he so
decides) and pass appropriate order within
ten weeks from the date of production of a
certified copy of this order.

[26] With the above observation,
present 482 application stands disposed-off.
----------

(2020)07ILR A360
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 No. 5705 of 2006

Sanjay Kumar & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ram Babu Sharma

Counsel for the Opposite Parties:
A.G.A.

Criminal Procedure court - Section 202,
482 - Challenge to summoning order -
Only material witnesses refused to be examined
by complainant to make out a prima facie case
- Consequence of non-examination of to be
considered by Magistrate at the trial and not at
the stage of issuing summoning order -
Magistrate is only required to see of sufficient
ground made out to proved against accused.
Non-examination of all witnesses not material -
No error in procedure adopted.

Application rejected. (E-2)

List of cases cited:-
7 All. Sanjay Kumar & Ors. Vs. State of U.P. & Anr.
361
1. Ranjit Singh Vs St.of Pepsu (now Punjab),
AIR 6 1959 SC 843.

2. Rosy & ors. Vs St. of Kerala & ors., (2000) 2
SCC 230.

3. Satyadeo Pandey & ors. Vs St. of U. P. &
anr., 1987 (1) AWC 572.

4. Chhotey Lal Vs St. of U. P., 2006 CRI.L.J.
2265,

5. Kallu Pal & ors. Vs St.of U. P. & anr., 2008
CRI.L.J. 3229 (Allahabad).

6. Dudh Nath Mishra & ors. Vs St. of U. P. & 9
anr., 2003 CRI.L.J.1087 (Allahabad).

7. Gopal Singh Vs Dhanraji Devi & anr., 1994
CRI.L.J. 1652 (Allahabad).

8. Abdul Hamidkhan Pathan & ors. Vs St. of
Gujrat & ors., 1989 CRI.L.J. 468 (DB).

9. Shivjee Singh Vs Nagendra Tiwary & ors.,
(2010) 7 SCC 578.

10. Chandra Deo Singh Vs Prokash Chandra
Bose @ Chabi Bose & anr, AIR 1963 SC
1430.

11. Kewal Krishan Vs Suraj Bhan & anr., AIR
1980 SC 1780.

12. Mohinder Singh Vs Gulwant Singh & ors.,
(1992) 2 SCC 213.

13. M. Govindaraja Pillai Vs Thangavelu Pillai
1983 CriLJ 917

14. Vijay Dhanuka Etc Vs Najima Mamtaj Etc,
(2014) 14 SCC 638.

15. Abhijit Pawar Vs Hemant Maudhukar
Nimbalkar & anr., (2017) 3 SCC 528.

16. Application under Section 482 Cr.P.C. No.
4419 of 2004 (Shiv Poojan & ors. Vs St. of U.P.
& ors.).

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Ram Babu Sharma,
learned counsel for applicants and learned
A.G.A. for State.

2. This application under Section 482
Cr.P.C. has been filed praying for quashing
summoning order dated 25.03.2006 as well
as further proceedings of Complaint Case
No. 1018 of 2005, under Sections 323, 324,
294, 504, 506, 427 IPC and Sections
3(1)(10)
SC/ST
Act,
Police
Station-
Narora, District- Bulandshahar and also
order dated 09.05.2006 passed by learned
Sessions Judge, Bulandshahar in Criminal
Revision No. 270 of 2006.

3. The only argument advanced by
learned counsel for applicants is that there
is no compliance of mandatory provision as
provided in Section 202 Cr.P.C., inasmuch
as, all complainant's witnesses have not
been examined.

4. Here, I find that if Complainant
wanted to examine only three witnesses in
support of complaint and on that Magistrate
was satisfied, it cannot be said that unless
all persons named in complaint are
examined as witnesses, no order of
summoning could have been passed by
Magistrate.

5. From perusal of complaint and
statements of complainant and witnesses
recorded under Section 200 and 202 Cr. P.
C., respectively, it cannot be said that no
prima facie case relating to offences in
which applicants have been summoned, is
made out.

6. Before considering arguments
advanced by learned counsel for applicants
it would be appropriate to examine scheme
of Cr.P.C. when a Magistrate proceeds on
362 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint, particularly when it is a case
exclusively triable by Court of Sessions.

7. Chapter XIV, Cr.P.C. deals with
subject of power of taking cognizance of
offence and conditions for the same. Section
190 Cr.P.C. specifies power of Magistrate to
take cognizance of offence. Three sources are
indicated therein which are of distinct nature.
What is material in taking cognizance is the
phrase "Upon receiving a complaint on facts
which constitutes such offence". The purpose of
taking cognizance of offence implicits an
exercise to decide whether process should be
issued to the accused or not. Section 204
Cr.P.C. envisages issue of process and it means
only issuing either summons or warrant for the
purpose of bringing the accused before
Magistrate. It says that summons or warrants
need be issued only if Magistrate is of the
opinion that their exists sufficient ground for
proceeding. Sub Section 3 of Section 204
Cr.P.C. only contemplates that proceeding if
instituted of complaint made in writing,
summons
or
warrants
issued
shall
be
accompanied by a copy of such complaint.
Before issue of process which is part of Chapter
XVI, there are four provisions in Chapter XV,
i.e. Sections 200, 201, 202 and 203 Cr.P.C.
Section 200 Cr.P.C. deals with examination of
Complainant, Section 201 Cr.P.C. provides
procedure by Magistrate not competent to take
cognizance of the case and Section 202 Cr.P.C.
provides postponement of issue of process.
Lastly, Section 203 Cr.P.C. confers power upon
Magistrate that if offence is not sufficient to
make out for proceeding, he shall dismiss the
complaint after recording his reasons briefly. I
may reproduce Sections 200 to 203 Cr.P.C. as
under :

"200. Examination of complainant.-
A Magistrate taking cognizance of an offence
on complaint shall examine upon oath the
complainant and the witnesses present, if any,
and the substance of such examination shall be
reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:

Provided
that,
when
the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses-

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under section 192:

Provided further that if the
Magistrate makes over the case to another
Magistrate
under
section
192
after
examining
the
complainant
and
the
witnesses, the latter Magistrate need not re-
examine them."

"201. Procedure by Magistrate
not competent to take cognizance of the
case. If the complaint is made to a
Magistrate who is not competent to take
cognizance of the offence, he shall,-

(a) if the complaint is in writing,
return it for presentation to the proper
Court with an endorsement to that effect;

(b) if the complaint is not in
writing, direct the complainant to the
proper Court."

"202. Postponement 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,
7 All. Sanjay Kumar & Ors. Vs. State of U.P. & Anr.
363
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 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 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 a
police station except the power to arrest
without warrant."

"203. Dismissal of complaint.-If,
after considering the statements on oath (if
any) of the complainant and of the
witnesses and the result of the inquiry or
investigation (if any) under section 202, the
Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall
dismiss the complaint, and in every such
case he shall briefly record his reasons for
so doing."

8. A cumulative and in depth reading
of aforesaid provisions would show that
Section 200 requires Magistrate for taking
cognizance of an offence on a complaint, to
examine upon oath the complainant and the
witnesses
present,
if
any.
When
a
complaint is made in writing, proviso to
Section 200 provides that it would not be
necessary for Magistrate to
examine
complainant and witnesses if complainant
is a public servant, acting or purporting to
act in the discharge of his official duties or
a Court has made the complaint; or if
Magistrate makes over a case for enquiry or
trail to another Magistrate under Section
192. Second proviso takes care when a
Magistrate makes over the case to another
Magistrate
under
Section
192
after
examining complainant and witnesses and
provides that latter Magistrate need not reexamine them. Section 201 is not necessary
to be discussed for the issue in question and
I straight way come to Section 202.

9. Before discussing Section 202 of
Cr.P.C., it would also be necessary to
mention that a Magistrate when satisfied that
there is sufficient ground for proceeding, he
can straight way issue notice and at this stage
he has three options : (i) Straight way issue
process; (ii) he can postpone the issue of
process for having holding an enquiry; and
(iii) he can direct an investigation to be made.
If the offence is triable by Court of Sessions,
it is impermissible for the Magistrate to direct
investigation. In such a case, Magistrate not
only has discretion but compelling duty to
comply with requirements of Section 202 (2)
Cr.P.C. and record statements of all
364 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses. In other words, if Magistrate
decides to hold inquiry, proviso of Section (2)
of Section 202, would come into picture and
where the offence is triable exclusively by
Court of Sessions, Magistrate himself has to
hold
inquiry
and
no
direction
for
investigation by police shall then be made.
Inquiry can be held by recording evidence on
oath and if Magistrate thinks fit, Section 202
(2) gives discretion to Magistrate to take
evidence of witness on oath. Thereafter, the
next stage where Magistrate would pass order
of dismissal of complaint or issue process, in
effect is, when a complaint is received,
Magistrate by following procedure prescribed
under Section 200 may issue process against
accused or dismiss the complaint. Section
203
specifically
provides
that
after
considering statement on oath, if any, of
complainant and witnesses and the result of
enquiry of investigation, if any, under Section
202 Cr. P.C., if Magistrate is of the opinion
that there is no sufficient ground for
proceeding, he shall dismiss the complaint.
Section 204 provides that no summons or
warrants are to be issued against accused
until a list of prosecution witnesses has been
filed. The object and purpose of holding
enquiry or investigation under Section 202
Cr.P.C. is to find out whether there exists
sufficient ground for proceeding against
accused or not. Holding of enquiry or
investigation is not an indispensable force
before issue of process against accused or
dismissal of the complaint. It is a enabling
provision to form an opinion whether or not
process should be issued and to remove from
his mind any hesitation that he may have felt
upon the mere perusal of complaint and the
consideration of complaint's evidence on
oath.

10. In Ranjit Singh Vs. State of Pepsu
(now Punjab), AIR 1959 SC 843, similar
argument was raised that Magistrate did not
hold inquiry as required under Section 200
and 202 Cr.P.C. Court negated the
contention and said as under :

"that
contention
is
equally
untenable because under Section 200,
proviso (aa) it is not necessary for a
Magistrate when a complaint is made by a
Court to examine the complainant and
neither Section 200 nor Section 202
requires a preliminary enquiry before the
Magistrate can assume jurisdiction to issue
process against the person complained."

11. In Rosy and others vs. State of
Kerala and others, 2000 (2) SCC 230,
Hon'ble M. B. Shah, J (another opinion by
Hon'ble K. T. Thomas, J) recorded a
separate but concurrent judgment and said
as under :

"It is settled law that the inquiry
under Section 202 is of limited nature.
Firstly, to find out whether there is a prima
facie case in issuing process against the
person accused of the offence in the
complaint and secondly, to prevent the
issue of process in the complaint which is
either false or vexatious or intended only to
harass such a person. At that stage, the
evidence
is
not
to be
meticulously
appreciated, as the limited purpose being of
finding out "whether or not there is
sufficient ground for proceeding against the
accused". The standard to be adopted by
the Magistrate in scrutinising the evidence
is also not the same as the one which is to
be kept in view at the stage of framing
charges. At the stage of inquiry under
Section 202 Cr.P.C. the accused has no
right to intervene and that it is the duty of
the Magistrate while making an enquiry to
elicit all facts not merely with a view to
protect the interests of an absent accused
person, but also with a view to bring to
7 All. Sanjay Kumar & Ors. Vs. State of U.P. & Anr.
365
book a person or persons against whom
grave allegations are made."
 (emphasis added)

12. In para 20 of Rosy and others vs.
State of Kerala (supra), Hon'ble M. B.
Shah, J. deduced certain principles as under
:

I.
(a)
Under
Section
200
Magistrate has the jurisdiction to take
cognizance of an offence on the complaint
after examining upon oath the complainant
and the witnesses present.

(b) When the complaint is made
in writing by a public servant acting or
purporting to act in discharge of his official
duties, the Magistrate need not examine the
complainant and the witnesses.

(c) In such case Court may issue
process or dismiss the complaint.

II. (a) The Magistrate instead of
following the procedure stated above may,
if he thinks fit, postpone the issue of
process and hold inquiry for the purpose of
deciding whether or not there is sufficient
ground for proceeding against the person
accused. Such inquiry can be held by him
or by the police officer or by other person
authorised by him.

(b) However, where it appears to
the Magistrate that the offence complained
of is triable exclusively by the Court of
Session, the direction of investigation by
the police officer is not permissible and he
is required to hold inquiry by himself.
During that inquiry he may decide to
examine the witnesses on oath. At that
stage, the proviso further gives mandatory
directions that he shall call upon the
complainant to produce all his witnesses
and examine them on oath. The reason
obviously is that in a private complaint,
which is required to be committed to the
Sessions Court for trial, it would safeguard
the interest of the accused and he would not
be taken by surprise at the time of trial and
it would reveal the version of the witnesses
whose list is required to be filed by the
complainant under Section 204 (2) before
issuance of the process,

(c) The irregularity or noncompliance therewith would not vitiate
further proceeding in all cases. A person
complaining of such irregularity should
raise objection at the earliest stage and he
should point out how prejudice is caused or
is likely to be caused by not following the
proviso. If he fails to raise such objection at
the earliest stage, he is precluded from
raising such objection later."

13.

Thus,
evidently
statement
recorded under Section 202 Cr.P.C. is not
for punishing the accused. The purpose of
Section 202 Cr.P.C. is that Magistrate has
not to ascertain truth or falsehood of
complaint as in old Code, but to decide
whether or not there is sufficient ground for
proceeding. Issue of process should not be
mechanical and it should be based on some
material.

14. The words "all his witnesses"
contained in Sub sec (2), proviso to Section
202 Cr.P. C. cannot be read as "all
witnesses". It has been held in Satyadeo
Pandey and others v. State of U. P. and
another, 1987 (1) AWC 572 that words "all
his
witnesses"
connote
that
all
the
witnesses of the complainant, associated or
connected with his interest and those
witnesses who are material and relevant to
prove prosecution case, must be examined.
The words "all his witnesses" under proviso
366 INDIAN LAW REPORTS ALLAHABAD SERIES
to Section 202 Cr.P.C. do not refer literally
to all prosecution witnesses in number
rather all his witnesses (i.e. of complainant)
and to whom he considers material to prove
his case.

15. In Chhotey Lal v. State of U. P.,
2006 CRI.L.J. 2265, Court held that all the
witnesses in Sub Sec (2) Proviso to Section
202 Cr. P. C. do not mean "all the
witnesses" named by complainant but all
the witnesses which complainant chooses
to examine.

16. In Kallu Pal and others v. State of
U. P. and Anr., 2008 CRI.L.J. 3229
(Allahabad), this Court said that formal
witnesses like Doctor, Investigating Officer
etc. are not under the command of the
complainant and they are not the witnesses
of complainant's confidence, therefore, they
cannot be termed as "his witnesses" and are
not covered by proviso to Section 202 (2)
Cr.P.C.

17. In Dudh Nath Mishra and others
v. State of U. P. and another, 2003
CRI.L.J.1087 (Allahabad), Court said that
it is not necessary to examine all the
witnesses who are named in complaint
petition.

18. In Gopal Singh v. Dhanraji Devi
and
another,
1994
CRI.L.J.
1652
(Allahabad), this Court said that it is
discretion of complainant to examine some
witnesses and give up rest of the witnesses.
Even when all the witnesses are not
examined in a case when it is exclusively
triable by Court of Sessions it has been
held that process issued by Magistrate to
accused is not per se illegal. This is what
has also been held in *Abdul Hamidkhan
Pathan and others v. State of Gujrat and
others, 1989 CRI.L.J. 468 (DB).

19. The issue raised in this application
also came up for consideration in Shivjee
Singh vs. Nagendra Tiwary and others,
2010 (7) SCC 578. The question up for
consideration formulated by Court in the
judgment reads as under :

"Whether examination of all
witnesses cited in the complaint is sine qua
non for taking cognizance by a Magistrate
in a case exclusively triable by the Court of
Sessions?"

20. In the above case noticing that there
is a serious illegality, a Single Judge of Patna
High Court remitted the matter to Chief
Judicial Magistrate with a direction to make
further enquiry and pass appropriate order in
the light of proviso to Section 202 (2) Cr. P.
C. Supreme Court said that Cr.P.C. is a
compendium of law relating to criminal
procedure. The provisions contained therein
are required to be interpreted keeping in view
the well recognized rule of construction that
procedural prescriptions are meant for doing
substantial justice. If violation of the
procedural provision does not result in denial
of fair hearing or causes prejudice to the
parties, the same has to be treated as directory
notwithstanding the use of word `shall'. After
referring to Sections 190, 192, 200 to 209
Cr.P.C. Court said that the object of
examining complainant and witnesses is to
ascertain the truth or falsehood of complaint
and determine whether there is a prima facie
case against the person who, according to the
complainant, has committed an offence. If
upon examination of complainant and/or
witnesses, Magistrate is prima facie satisfied
that a case is made out against the person
accused of committing an offence, then he is
required to issue process.

21. In Chandra Deo Singh vs Prokash
Chandra Bose alias Chabi Bose & Anr,
7 All. Sanjay Kumar & Ors. Vs. State of U.P. & Anr.
367
AIR 1963 SC 1430, Court held, that where
there is prima facie evidence, Magistrate
was bound to issue process, even though
the person charged of an offence in the
compliant might have a defence, such
defence has to be taken into consideration
and left to be decided by appropriate forum
at an appropriate stage. At the stage of
issue of process, Magistrate can refuse to
issue process only when he finds that
evidence led by complainant is self
contradictory or intrinsically untrustworthy.

22. In Kewal Krishan Vs. Suraj Bhan
and another, AIR 1980 SC 1780, scheme of
Sections 200 to 204 Cr.P.C. was examined
and Court said :

"At the stage of Section 203 and
204, Criminal Procedure Code in a case
exclusively triable by the Court of Session,
all that the Magistrate has to do is to see
whether on a cursory perusal of the
complaint and the evidence recorded during
the preliminary inquiry under Sections 200
and 202, Criminal Procedure Code, there is
prima facie evidence in support of the
charge levelled against the accused. All that
he has to see is whether or not there is
"sufficient ground for proceeding against
the accused. At this stage, the Magistrate is
not to weigh the evidence meticulously as
if he were the trial court. The standard to be
adopted by the Magistrate in scrutinising
the evidence is not the same as the one
which is to be kept in view at the stage of
framing charges." (emphasis added)

23. In Mohinder Singh vs Gulwant
Singh And Others, 1992 (2) SCC 213,
Court said that the scope of inquiry under
Section 202 Cr.P.C. is extremely restricted.
It is only to find out the truth or otherwise
of the allegations made in the complaint in
order to determine whether process should
be issued or not under Section 204 Cr.P.C.
or whether the complaint should be
dismissed by resorting to Section 203
Cr.P.C. on the footing that there is no
sufficient ground for proceeding on the
basis of the statements of complainant and
his witnesses, if any. But the enquiry at this
stage does not partake the character of a
full dress trial which can only take place
after process is issued under Section 204
Cr.P.C. calling upon the proposed accused
to answer the accusation made against him
for adjudging the guilt or otherwise of the
said accused person. Further, the question,
whether
evidence
is
adequate
for
supporting conviction, can be determined
only at the trial and not at the stage of
enquiry contemplated under Section 202
Cr.P.C. To say in other words, during the
course of enquiry under Section 202 of
Cr.P.C., Magistrate has to satisfy himself
simply on the evidence adduced by
prosecution, whether prima facie case has
been made out so as to put the proposed
accused on a regular trial. At that stage no
detailed enquiry is called for.

24. Considering the word "shall" in
proviso to Section 202 (2) Cr. P.C.,
Supreme Court in Shivjee Singh (supra)
Court said :

"The use of the word 'shall' in the
proviso to Section 202 (2) is prima facie
indicative of mandatory character of the
provision contained therein, but a close and
critical analysis thereof along with other
provisions contained in Chapter XV and
Section 226 and 227 and Section 465
would show that non-examination on oath
of any or some of the witnesses cited by the
complainant is, by itself, not sufficient to
denude the concerned Magistrate of the
jurisdiction to pass an order for taking
cognizance and issue of process provided
368 INDIAN LAW REPORTS ALLAHABAD SERIES
he is satisfied that prima facie case is made
out for doing so."
(emphasis added)

25. In Shivjee Singh (supra) Court
further said that in proviso to Section 202
(2) word `all' is qualified by the word "his".
This implies that complainant is not bound
to examine all the witnesses named in the
complaint or whose names are disclosed in
response to the order passed by the
Magistrate. In other words, only those
witnesses are required to be examined
whom the complainant considers material
to make out a prima facie case for issue of
process.
The
choice
being
of
the
complainant, he may choose not to examine
other witnesses. Consequence of such nonexamination is to be considered at the trial
and not at the stage of issuing process when
Magistrate is not required to enter into
detailed discussions on the merits or
demerits of the case, that is to say, whether
or not the allegations contained in the
complaint, if proved, would ultimately end
in conviction of the accused. He is only to
see whether there exists sufficient ground
for proceeding against accused. In taking
above view, Court has followed and relied
its earlier decisions in Rosy and others vs.
State of Kerala (supra), Chandra Deo Singh
(supra) and Kewal Krishan (supra). Court
also approved judgment of Madras High
Court
in
M.
Govindaraja
Pillai
v.
Thangavelu Pillai 1983 CriLJ 917, and
approved the ratio that Section 202 is an
enabling provision. Court pointed out
divergent two opinions expressed by
Hon'ble Justice M. B. Shah and Hon'ble
Justice K. T. Thomas in two separate but
concurrent judgments in Rosy and others
vs. State of Kerala (supra) and then in para
30 said as under :

"30. Although, Shah, J. and
Thomas, J. appear to have expressed
divergent views on the interpretation of
proviso to Section 202 (2) but there is no
discord between them that non-examination
of all the witnesses by the complainant
would not vitiate the proceedings. With a
view to clarify legal position on the subject,
we deem it proper to observe that even
though in terms of the proviso to Section
202 (2), the Magistrate is required to direct
the
complainant
to
produce
all
his
witnesses and examine them on oath,
failure or inability of the complainant or
omission on his part to examine one or
some of the witnesses cited in the
complaint or whose names are furnished in
compliance with the direction issued by the
Magistrate, will not preclude the latter from
taking cognizance and issuing process or
passing committal order if he is satisfied
that there exists sufficient ground for doing
so. Such an order passed by the Magistrate
cannot be nullified only on the ground of
non-compliance with the proviso to Section
202(2)." (emphasis added)

26. Similar view has been taken in
Vijay Dhanuka Etc vs Najima Mamtaj Etc,
2014 (14) SCC 638 which has been
followed in Abhijit Pawar Vs. Hemant
Maudhukar Nimbalkar and Another, 2017
(3) SCC 528.

27. Recently, this aspect has been
considered by this Court in Application
under Section 482 Cr.P.C. No. 4419 of
2004 (Shiv Poojan and Others Vs. State of
U.P. and Others) decided on 04.07.2019.

28. In view of above discussions, I am
clearly of the view that even though in
complaint, several persons were named as
witnesses but only three persons were
examined under Section 202 Cr.P.C. and
consequently, process was issued, the
procedure adopted by Court below cannot
7 All. Azim Qazi & Anr. Vs. State of U.P. & Anr.
369
be said to be vitiated in law and submission
to that effect is clearly erroneous and
contrary to above discussions, hence,
rejected.

29. Application has no merit.
Dismissed accordingly.

30. Interim order, if any, stands
discharged.
----------
(2020)07ILR A369
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 41494 of 2019

Azim Qazi & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri V.M. Zaidi, Sri M.J. Akhtar

Counsel for the Opposite Parties:
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Section
40-43
read
with
Criminal
Procedure court - Section 482
-For
quashing charge sheet - Maintainability of
second application seeking same prayer, but at
different stage - liable to be rejected plea of
acquitted of co-accused - Held not material in
criminal trial held - concealment of facts by
applicants and failure to comply with earlier
direction of Court - Applicants have not come
with clean hands before the Court - Application
dismissed - Court concerned directed to ensure
presence of applicants within one month.

Application dismissed. (E-2)

List of cases cited:-
1. Arasmeta Captive Power Company Pvt. Ltd.
Vs Lafarge India Pvt. Ltd. (2014) AIR-SC 525.

2. St. of A.P. Vs A.P. Jaiswal (2001) AIR SC 499.

3. Ramhit @ Hittu Vs St. of U.P. & ors. decided
on 32.2.2011 while deciding the Crl. Case No.
3951 of 2010.

4. K.K. Prem Shankar Vs Inspector Of Police &
ors., (2001) JIC (SC) 206.

5. M.S. Shariff & ors. Vs St. of Madras & ors.,
AIR (1954) (SC) 397.

6. Karan Singh Vs St. of M.P. AIR (1965)(SC)
1037.

7. Rajan Rai Vs St. of Bihar (2006)1 SCC 191.

8. Kumar Rinki Vs St. of U.P. & ors. (2008) (3)
JIC 267 Alld.

9. Yanav Sheikh @ Gagu Vs St. of W.B. (2013)
(6) SCC 428.

10. Dalvir Singh Vs St. of Haryana in Crl.
Misc.No.
M-
4096
of
2011
decided
on
09.05.2011.

11. Anil Khandelwal Vs St. of NCT of Delhi
(2019) AIR SC 3583

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri V.M. Zaidi, Senior
Counsel, assisted by Sri M.J. Akhtar,
Advocates for applicants and learned AGA
for the State, perused the records.

2. Learned Senior Counsel at the very
inception, raised certain legal aspects of the
issue
which
touches
core
issue
for
adjudication of present 482 application and
has insisted to decide the same at the
admission stage itself.

3. Before coming to the merits of the
case, the office report reveals certain