MAHENDRA KUMAR BANSHAL Vs. SHAILENDRA KUMAR BANSHAL

JUDGEMENT

(1.) V. P. Mathur, J. A very short point is involved in this case A criminal complaint was filed mentioning amongst others the name of one Head Moharrir, Malkhan Singh. The list of witnesses submitted by the complainant in the court, however, did not mention his name and all the witnesses mentioned in the list have been examined in this case There is , dispute about it There is again no dispute about the fact that the case is one under Section 307 I. P. C. and some other provisions of law and is exclusively triable by the Court of Sessions. Under the provisions of Section 202 Cr P C and the sections following it, it is incumbent upon the complainant to examine all the witnesses before an order of summoning is passed. The contention of the learned counsel for the petitioner is that although the name of Head Moharrir Malkhan Singh was mentioned in the complaint, he has not been examined and the complainant has also not indicated any where that he Ho not want to examine him and therefore, he should be deemed to have he discharged. I think there is no provision in the law to lay down how witnesses is to be discharged and that can only be gathered from the attending circumstances and the act of the complainant. In the present case after the complaint had been filed he submitted a list of witnesses and did not mention the name of Head Moharrir Malkhan Singh in the same, ft may also be mentioned here that Head Moharrir Malkhan Singh could only be technically a witness to prove the lodging of the first information report or some other entries in the general diary of the Police Station. If these entries had already been proved by some other witness of the Thana, there could be no need of producing Malkhan Singh Head Moharrir additionally unless that was required to burden the record of the court and that is not what is required under provision of law. Non-mention of the name of the Head Moharrir Singh in the list of witnesses means that the complainant did not wan examine him, which in other words tantamounts to his discharge him fore, there is no defect in the order passed by the court below.

(2.) THE petition accordingly stands dismissed and the stay order date 23-3-84 is vacated. THE Judicial Magistrate, Agra, is directed to proceed with Criminal Case No. 765 of 1982 and dispose it of with expediency Petition dismissed. .