# Shiv Poojan & Ors v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 86
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-04
- **Case number:** The proceedings of Case No. 339 of 2018
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-poojan-ors-v-state-of-u-p-ors-44964
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Summoning order -
Sections 200, 202 (2) & Section 482 -
Witnesses of complaint- If Complainant
wanted to examine only two witnesses in
support
of
complaint
or
that
the
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 - Magistrate has to
satisfy himself on the evidence adduced
led by prosecution, whether prima facie
case had been made out so as to put the
proposed accused on a regular trial. The
words "all his witnesses" contained in
Sub sec (2), proviso to Section 202 Cr.P.C.
cannot be read as "all witnesses"-Even
though in the complaint several persons
were named but only two persons were
examined under Section 202 Cr. P. C. and
thereafter
process
was
issued-The
procedure adopted by Court below cannot
be
said
to
be
vitiated
in
law.
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
87
Criminal application u/s 482 Cr.P.C
rejected. (E-3)

List of cases cited:-

## Text

86 INDIAN LAW REPORTS ALLAHABAD SERIES
their father executed the registered agreement
to sell in favour of the first informant and
subsequently, another agreement was executed
by the applicants extending the time for
execution
of
the
sale
deed.
The
informant/opposite party no.2 is neither
entrusted nor conveyed any dominion of the
property in question by the applicants so far,
despite execution of the registered agreement to
sell, therefore, the applicants continue to be the
owner of the property in question with a
compromise under the agreement to execute a
sale deed in favour of the informant/opposite
party no.2 by 20.5.2015. The earnest money
was paid in anticipation of a sale deed. The
property in respect of which, criminal breach of
trust committed must be either the property of
some person other than the accused or the
beneficial interest in or ownership of which
must be of some other person and the accused
must hold such property on trust for such other
person or for his benefit which is missing in the
present case. Thus, non-execution of a sale
deed or non-refund of earnest would not
amount to criminal breach of trust.

19. On the allegations made in the
F.I.R/charge-sheet, no offence whatsoever
under Sections 420/406 is made out and
the case is squarely covered by illustration
(i) in the case of Bhajan Lal (supra) and
the relevant ingredients for constituting
the offence under Section 406/420 IPC
are absent, as for that purpose, there must
be an intention to cheat, which is missing
in the present case.

20. The application stands allowed.
The proceedings of Case No. 339 of 2018
(State Vs. Sunpat and others) arising out
of Case Crime No. 610 of 2017, under
Sections 406, 420 IPC, P.S. Dankaur,
District Gautam Budh Nagar pending in
the court of Additional Chief Judicial
Magistrate, Court No. 2, Gautam Budh
Nagar are quashed.
----------

(2019)12 ILR A86

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
4419 of 2004

Shiv Poojan & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Tripathi B.G. Bhai

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

A. Criminal Law - Code of Criminal
Procedure, 1973 - Summoning order -
Sections 200, 202 (2) & Section 482 -
Witnesses of complaint- If Complainant
wanted to examine only two witnesses in
support
of
complaint
or
that
the
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 - Magistrate has to
satisfy himself on the evidence adduced
led by prosecution, whether prima facie
case had been made out so as to put the
proposed accused on a regular trial. The
words "all his witnesses" contained in
Sub sec (2), proviso to Section 202 Cr.P.C.
cannot be read as "all witnesses"-Even
though in the complaint several persons
were named but only two persons were
examined under Section 202 Cr. P. C. and
thereafter
process
was
issued-The
procedure adopted by Court below cannot
be
said
to
be
vitiated
in
law.
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
87
Criminal application u/s 482 Cr.P.C
rejected. (E-3)

List of cases cited:-

1. Ranjit Singh Vs. St. of Pepsu (now Punjab),
AIR 1959 SC 843

2. Rosy & Ors. vs. St. of Kerala & Ors, 2000
(2) SCC 230

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

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

5. Kallu Pal & Ors. v. St. of U. P. and Anr.,
2008 CRI.L.J. 3229 (All)

6. Dudh Nath Mishra & Ors. v. St. of U. P. &
anr, 2003 CRI.L.J.1087 (All)

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

8. Abdul Hamidkhan Pathan & Ors v. St. of
Guj. & 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
alias 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. Vijay Dhanuka Etc vs Najima Mamtaj Etc,
2014 (14) SCC 638

14. Abhijit Pawar Vs. Hemant Maudhukar
Nimbalkar & Anr, 2017 (3) SCC 528

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

1. Heard Sri Tripathi B. G. Bhai,
learned counsel for applicants and learned
A.G.A. for State-respondent.

2. This application under Section
482 of Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C.") has
been filed by six persons namely Shiv
Poojan, Prem, Dayaram, Devanand, Smt.
Audhraji and Smt. Usha Devi, all
residents of Village-Katya, Police StationGhanghata, District-Sant Kabir Nagar,
being aggrieved by summoning order
dated 24.11.2000 passed by Chief Judicial
Magistrate, Basti (hereinafter referred to
as
'C.J.M.')
in
Criminal
Case
No.42/12/2000 (arising out of Case Crime
No.323-A/1999), under Sections147, 323,
324, 504, 506 of India Penal Code
(hereinafter referred to as 'I.P.C.') read
with Section 3 (1) (x) of Scheduled Castes
and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as "S.C./S.T. Act, 1989"). Applicants
have
prayed
for
quashing
entire
proceedings in aforesaid criminal case.

3. When police did not register
report of respondent 3, Komal Harizan
(hereinafter referred to as 'complainant'),
he filed an application under Section 156
(3) Cr.P.C. alleging that applicants belong
to higher caste and on 04.11.1999,
applicants' buffalo entered the field of
Complainant and damaged crop standing
thereon. Complainant when sought to
complain applicants and went to their
house, they all misbehaved, abused and
also beat him. They also used casteist
remark
and,
therefore,
committed
offences under Section 147, 323, 324,
504, 506, 427 I.P.C. read with Section 3
(1) (x) of S.C./S.T. Act, 1989.

4. In support of complaint, medical
examination reports of complainant and
statement of one Mahadev were also
placed
before
Magistrate.
When
comments were required to be submitted
by
police,
it
submitted
report
on
88 INDIAN LAW REPORTS ALLAHABAD SERIES
30.11.1999 stating that complaint is false
and complainant is misusing provisions of
law, since, he belongs to Scheduled Caste.

5. Magistrate, however, directed
police to register case, which was
registered as Case Crime No.324-A/1999
under Section 147, 323, 324, 504,
506,427 IPC read with Section 3 (1) (x) of
S.C./S.T. Act, 1989 on 30.12.1999.
Thereafter, investigation was made and
Investigating Officer (hereinafter referred
to as "I.O.") submitted final report on
01.01.2000. A protest petition dated
05.07.2000 was filed by complainant
which was also supported by an affidavit.
Magistrate examined the complainant
under Section 200 Cr.P.C. on 19.08.2000
and on the same day, statement of
witnesses Subhash and Ramjeet were also
recorded under Section 202 Cr.P.C. All
the three witnesses supported complaint
case. On 25.08.2000 and 25.09.2000,
C.J.M. passed order that the case is triable
by Sessions Court, hence, complete
evidence should be given. The orders read
as under :

"25.8.2000 मुकदमा सत्र न्यायालय
द्वारा परीक्षणीय है। अतः पूरा साक्ष्य ददया जाये।
दद. 25.9.2000 में पूरे साक्ष्य पेश हो ।

25.9.2000 आज पेश हुआ । मुकदमा सत्र
न्यायालय
द्वारा
परीक्षणीय
है।
अतः
पूरा
साक्ष्य ददया जाये। दद. 25.10.2000 में पूरे साक्ष्य
पेश हो।

"25.8.2000 Case is triable by
Sessions Court. Hence, complete evidence
shall be given. All evidence shall be
produced on 25.9.2000.

25.9.2000 Case is taken up.
Case is triable by Sessions

Court.
Hence,
complete
evidence shall be given.

All evidence shall be produced
on 25.10.2000."

(English Translation by Court)

6. On 25.10.2000, none appeared.
Thereafter on 24.11.2000 on the basis of
earlier statements recorded by Magistrate
on protest petition, applicants were
summoned by Magistrate under Section
147, 323, 504, 506, 427 I.P.C. read with
Section 3 (1) (x) of S.C./S.T. Act, 1989.
Recall application dated 07.02.2001 was
filed by applicants. Said recall application
was rejected on 13.05.2004 and thereafter,
this application has been filed.

7. After submission of final report
by police before Magistrate, protest
petition was filed by Complainant and
thereafter Magistrate proceeded with the
matter as a complaint case. After
recording statements of complainant and
witnesses under Sections 200 and 202
Cr.P.C. and examining record as well as
medical report which was available before
Magistrate, it has passed summoning
order and, therefore, Magistrate has held
that there was no reason to recall order
dated 24.11.2000.

8. Learned counsel for applicants
pointed out that though summoning order
was passed on 24.11.2000, but at the end
of order 04.01.2001 is mentioned, which
shows that the order has been ante dated.
However, I find no force in this
submission. It appears that there is some
error in mentioning of date under
signature of Magistrate for the reason that
on 25.10.2000 Magistrate fixed next date
as 24.11.2000. Thereafter order was
passed on 24.11.2000 for summoning
applicants and 03.01.2001 was fixed as
next date. Had this order been passed on
04.01.2001, there was no occasion for
fixing 03.01.2001 as next date and
therefore, there is only clerical and
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
89
typographical error in respect of mention
of date and this is what has been said by
Magistrate also in the order dated
13.05.2004
while
rejecting
recall
application of applicants.

9. The next contention is that all
witnesses must have been summoned.
Here, I find that if Complainant wanted to
examine only two witnesses in support of
complaint or that the 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.

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

11. 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
complaint,
particularly when it is a case exclusively
triable by Court of Sessions.

12. 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
90 INDIAN LAW REPORTS ALLAHABAD SERIES
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, 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."

13. 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
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
91
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
re-examine them. Section 201 is not
necessary to be discussed for the issue in
question and I straight way come to
Section 202.

14. 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 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.

15. 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."
92 INDIAN LAW REPORTS ALLAHABAD SERIES

16. 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
book a person or persons against whom
grave
allegations
are
made."
(emphasis added)

17. 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
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
93
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."

18. 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 any sufficient
ground for proceeding. Issue of process
should not be mechanical and it should be
based on some material.

19. 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 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.

20. 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.

21. 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.

22. 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.

23. 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).

24. 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?"

25. In the above case noticing that
there is a serious illegality, a Single Judge
94 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

26. In Chandra Deo Singh vs
Prokash Chandra Bose alias Chabi
Bose & Anr, 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.

27. 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)

28. 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
4 All. Shiv Poojan & Ors. VS. State of U.P. & Ors.
95
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.

29. 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 nonexamination 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 he is
satisfied that prima facie case is made
out for doing so."

 (emphasis added)

30. 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 non-examination 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-
96 INDIAN LAW REPORTS ALLAHABAD SERIES
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 noncompliance with the proviso to Section
202 (2). (emphasis added)

31. 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.

32. In view of above discussions, I
am clearly of the view that even though in
the complaint several persons were named
but only two persons were examined
under Section 202 Cr. P. C. and thereafter
process was issued, the procedure adopted
by Court below cannot be said to be
vitiated in law and submission to that
effect is clearly erroneous and contrary to
above discussions, hence, rejected.

33. Application has no merit.
Dismissed accordingly.

34. Interim order, if any, stands
discharged.
----------
(2019)12 ILR A96

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Crl. Misc. Application (U/S 482 Cr. P.C.) No.
5165 of 2019

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

Counsel for the Applicants:
Sri Mahesh Prasad Yadav, Sri D.P. Singh

Counsel for the Opposite Parties:
A.G.A., Sri Vikas Tiwari

A. Criminal Law - Code of Criminal
Procedure - Section 482 - Cross cases -
Investigation of subsequent case crime
number - Final report was submitted
repeatedly - Protested by complainant
wherein statement of Complainant was
got recorded under Section 200 and his
witnesses were examined under Section
202 of Cr.P.C. whereupon, impugned
summoning
order was
passed
-The
occurrence is one and common- One
case is running for offence of murder as
well as attempt to murder and this
second offence for the same occurrence
has been initiated by way of summoning,
for which apparently prima facie, there
was sufficient evidence on record and
the impugned order was passed on the
basis of it. There was no abuse of
process of Court or frustration of end of
justice.
This
Court,
in
exercise
of
inherent power under Section 482 of
Cr.P.C. is not expected to embark upon
the aspects of factual evidence, which is
a question of trial. (Para 4, 5 & 6)