GOTTIPATI SUBBA NAIDU Vs. TALLURI MAHALAKSHMAMMA

JUDGEMENT

(1.) This is a reference made by the learned single Judge. A private complaint was filed. The Magistrate passed an order on 27-9-96 that,

(2.) We have heard the learned counsel for the parties. The learned counsel for the petitioner submits that Section 202 (2) of Cr.P.C. is clear and unambiguous in laying down that, unless and until the statements of all the witnesses of the complainant are taken cognizance cannot be taken. He further states that, unless the accused knows as to what evidence is going to be led against him in the trial he shall be prejudiced. He submitted that, in the present case the post- mortem report revealed that the deceased had died because of heart ailment, therefore, it would have been helpful to the accused if the Doctor's statement had been recorded. The statement of the wife of the deceased was also not recorded who was an eye witness and who would have not supported the prosecution story. He submits that Section 202 (2) of Cr.P.C. cannot be read in isolation without reading other provisions of the Code. He submits that in the present case Sections 208 and 209 becomes material and Section 202 (2) has to be read along with Section 208 and 209. In order to appreciate the argument Sections 202, 208 and 209 of the Code of Criminal Procedure are reproduced."202. Postponement of issue of process -

(3.) The learned counsel submits that, under Section 202 if the offence appears to be triable by a Sessions Judge the Magistrate has to conduct an inquiry and in this inquiry he has to record the statements of all the witnesses and under Section 208 if after recording the statements he finds that the offence is triable exclusively by the Court of Session he is duty-bound to furnish to the accused statements recorded under Section 200 or Section 202 and the documents produced before the Magistrate, if any, and Section 209 makes it mandatory for the Magistrate to comply with the mandate of Section 208 before the case is committed. If the witnesses statements are not recorded by the Magistrate under Section 202 the Magistrate cannot comply with the mandate of Sections 208 and 209, therefore, it is mandatory for the Magistrate to record statements of all the witnesses. He forcefully relies on the language employed in Section 202 which says that all witnesses shall be examined. In the reference order the learned single Judge referred to the judgment of the Division Bench of this Court in Ramachandra Rao's case (1980 Cri LJ 593) (supra). Relevant portion of the Division Bench judgment is reproduced.