VISHNU BHAGWAN Vs. NAWAL KISHORE

JUDGEMENT

(1.) A complaint alleging that Padmawati was burnt to death on 24th July, 1979 by her husband Vishnu Bhagwan petitioner, herein was filed by Nawal Kishore father of the deceased, on November 5, 1979. In all, 10 witnesses have been named by the complainant in in the list of witnesses; one of them is a medical officer of the Ram Manohar Lohia Hospital where Padmawati had been admitted. After the complainant and five of the witnesses had been examined by the learned Magistrate, he (complainant) made the following statement :

(2.) I may note here that excepting for postmortem report of the deceased, the other medical evidence pertaining to her has not been produced by the complainant. The learned Magistrate by his order dated 26th November, 1981 has parima facie found that an offence under section 302 of the Indian Penal Code, is made out against the petitioner herein. Hence, he has issued summons for his appearance. The said order is being impugned in this petition. The main contention of Mr. Soni is that it was incornbent upon the Magistrate to record the evidence of all the complainant's witnesses prior to issuing of the said summons. It is urged that the provision of sub-section. (2) of Section 202 of the Code of Criminal Procedure are mandatory and not having been complied with, the proceedings are vitiated and the impugned orders of summons are liable to be quashed. Sub-section (2) of Section. 202 of the Code reads as follows :

(3.) It is true that the procedure laid down in the above sub-section is not a mere formality. The Magistrate taking cognizance on a complaint for an offence triable exclusively by the Court of Session, is to examine all the witnesses of the complainant, but if the complainant is satisfied with the examination of some of his witnesses and closes his case, the Magistrate cannot direct him (complainant) to summon the rest of the witnesses named in the list of witnesses. It is open to the complainant to give up some of the witnesses. In the present case, the statement made by the complainant as noticed above shows that he was for the time being satisfied by the evidence which he had already produced. Mr. K. L. Arora, learned counsel for the complainant-respondent herein, has made a statement before me that infact, the complainant is not wanting to produce any further evidence in the enquiry. The statement made by the complainant before the Magistrate, according to Mr. Arora, was made under some mistake.