NARAYAN Vs. LAKSHMI

JUDGEMENT

(1.) THE order passed by the Judicial Magistrate First Class, Nagpur, on 26-4- 1988 on Exhibits 72 and 73 in Criminal Case No. 241/85, rejecting the applications filed by the petitioner and the other co-accused, has been challenged in these proceedings and the inherent powers of this Court are sought to be invoked for quashing the impugned order.

(2.) A complaint came to be filed by the respondent No. 1 before the Judicial Magistrate First Class, Nagpur. On verification of the complaint, the learned Magistrate was pleased to take cognizance of the case otherwise than on a police report and accordingly a process under Sections 498-A and 506 of the Indian Penal Code was directed to be issued No list of witnesses as contemplated under Section 204 (2) of the Criminal Procedure Code was filed. Inspite of that infirmity, the learned Magistrate issued process to the accused, and there is no dis-pute at this stage that all the accused put in their appearance before the Court in pursuance of the summons. As it was a warrant case, the learned Magistrate followed the procedure detailed under B of Chapter XIX of the Criminal Procedure Code (i. e. a procedure for warrant cases, the cognizance whereof has been taken otherwise than on Police report ). I told that the complainant produced herself and she has been examined and cross-examined before charge. This was on 15-3-1988. On 21-4-1988, the complainant examined another witness before the charge. After the closure of the evidence of P. W. 2 before charge, the accused Nos. 1 to 3 filed Exhibit 72, whereas the other accused filed Exhibit 73 contending that filing of list of witnesses is a must under Section 204 of the Criminal Procedure Code and if no list of witnesses is filed, the complainant cannot be permitted to examine any other witness than herself. This was the main contention raised. The Court however on hearing both the counsel rejected both of those applications. The Court held that though sub-clause (2) of Section 204 of the Criminal Procedure Code is mandatory it does not close the doors for the complainant as far as further trial is concerned and the complainant can be allowed to file list of witnesses before those witnesses are examined so that no prejudice is caused to the accused. It is this order which has been challenged in the present proceedings.

(3.) MR. Sundaram, the learned Advocate for the petitioner strenuously urged before me that the Court has not properly appreciated the real spirit underlying Section 204 (2) of the Criminal Procedure Code. It was his contention that the provision was mandatory in the sense that the omission to comply virtually closed the doors for the complainant as far as the trial is concerned I was taken extensively through the provisions of Sections 204 and 244 of the Criminal Procedure Code (present) and also to Sections 204 (1) A and 252 of the old Criminal Procedure Code. Turning to Section 204 it is the commencing Section and Chapter XVI dealing with commencement of the proceedings before the Magistrate. Sub-section (1) speaks about the taking cognizance of a case and then issuing either summons or warrant to the accused calling them to appear before the Magistrate. Sub-section (2) gives a mandate that no summons or warrant shall be issued against the accused unless a list of prosecution witnesses has been filed. Reading the mandate as it stands, it is clear that the bar is against issuing either a summons or a warrant at that stage i. e. immediately after taking cognizance. It means that even after taking cognizance of the matter the Court can refuse to issue either a summons or a warrant to the accused in case a list of witnesses is not filed by the complainant. What happened in this case is that the list was not at all filed and inspite of that, the Magistrate issued summons to all the accused inspite of the bar created under sub-section (2) It was not the argument of Mr. Sundaram that the issuance of the summons to the accused should be quashed as no list of witnesses was filed. What he urges before me is that when the complainant has chosen not to file a list of witnesses, then he has to take the responsibility and when the enquiry commences under Chapter XIX, then he can examine himself alone and no other witnesses can be examined, because no list has been filed.