PAPPU GOVINDA LAKSHMI Vs. PAPPU KRISHNA

JUDGEMENT

(1.) The petition is being disposed of finally at the stage of admission with consent of the learned counsel for the petitioner and the learned Public Prosecutor.

(2.) The petitioner is the complainant in a complaint registered as P.R.C.SR.No.1 of 1996 pending on the fIle of the learned III Additional Judicial Magistrate of First Class, Rajahmundry. That is a private complaint filed by the complainant against accused Nos.l to 5 for offences alleged under Sections 307, 354,147 and 148 I.P.C. The petitioner examined himself under Section 200 Cr.P.C. on oath. Thereafter, the petitioner has also examined all the witnesses named in the list along with the complaint. However, due to oversight the name of the Medical Officer/doctor, who had examined the victim for purposes of recording the injuries on them, was not named in the list of witnesses and the petitioner prayed to the learned Magistrate to permit summoning the said doctor for examination under Section 202 Cr.P.C. However, the learned Magistrate rejected the said prayer by observing that the said doctor was not cited in the list of witnesses and therefore, it was observed that the court could not give or handover summons to any of such witnesses. It appears that the learned Magistrate was of the view that as the name of the doctor was not in the list, it was not permissible for the petitioner to summon the said doctor for purposes of enquiry under Section 202 Cr.P.C.

(3.) The learned Magistrate was in error in thinking so. The list of witnesses for the prosecution has to be filed under Section 204(2) Cr.P.C. The said list has to be filed before issue of process against the accused and not prior to the stage of issuance of process against the accused. Therefore, at the stage of enquiry under Section 202 Cr.P.C. it is not necessary for the complainant to give any list of witnesses. However, under Section 202(2) Cr.P.C. it is mandatory for the learned Magistrate that if the offence complained of is triable exclusively by the court of Sessions then he shall call upon the complainant to produce all his witnesses and examine them on oath. Therefore, the Magistrate is bound to permit the complainant to examine all his witnesses. The word 'all his witnesses' includes the witnesses who are necessary for unfolding the complainant's case. It cannot be denied that the doctor was the most important witness, from that stand point and, was a necessary person for unfolding the complainant's case totally. The learned counsel for the petitioner says that unless he examines the doctor, issuance of process by the learned Magistrate may not be permissible under Section 204 I.P.C. For this purpose he brings to my notice the decision in Ramachander v. Boina Ramachander (1) 1980 Crl.L.J. 593. This is a Division Bench judgment of this Court which clearly lays down that when the offence complained for is triable exclusively by the court of Sessions the Magistrate shall examine all the witnesses of the complainant on oath. The decision further lays down that the language of the proviso is clear and unambiguous. The word used is "all" and again "all" does not mean "some". The Magistrate has to perform the statutory functions before issuing process in connection with the offences triable by court of Sessions. The examination of the witnesses is not a mere formality. If the petitioner fails to examine the doctor in such a situation, he would be in peril of the whole case initiated on a complaint being quashed by the High Court. Therefore, the learned Magistrate was in patent error in not permitting the petitioner to examine the doctor whom the petitioner wanted to examine. Section 311 Cr.P.C. runs as follows:-