SHANKAR ROUL Vs. RAMAKANTA SWAIN

JUDGEMENT

(1.) The only point involved in, this revision application is whether the requirements proviso to sub-section (2) of S. 202 of the Code of Cr. P., 1973 (in short 'the Code') were complied with.

(2.) Petitioner as complainant filed a complaint petition in the Court of the learned Sub-divisional Judicial Magistrate, Athgarh (in short 'SDJM') on 4-7-1987. Initial statement was recorded on 7-8-1987, and the matter as directed to be placed on 4-9-1987 for enquiry under S.202 of the Code. Complainant was directed to produce his witnesses on the date fixed. The matter was adjourned from time to time and ultimately on 7-11-1987 two witnesses were produced. The matter was again adjourned to 20-11-1987. On that date the enquiry was closed and the matter was directed to be placed on 25-11-1967 for orders. By the impugned order of even date the complaint petition was dismissed for non-compliance of proviso to sub-section (2) of S. 202, for non-examination of the complainant himself. According to the learned SDJM, complainant is the principal witness and on account of his non-examination, there was non-compliance with the statutory requirement. Reliance was placed on a decision of this Court in 1986 (1) OLR 132 : Kartikeswar Nayak v. Karadi Jagannath and eleven others.

(3.) Question posed in this revision application is whether complainant is a witness at all, and whether his non-examination rendered the proceeding otiose. Statutory mandate of proviso to sub-section(2) of Section 202 is that where it appears to the Magistrate that offence complained of is triable exclusively by court of session he shall call upon the complainant to produce all witnesses and examine all of them. Controversy primarily centres round the expression "all witnesses" and whether it includes complainant himself. "All witnesses" does not necessarily mean all witnesses named in the complaint petition. It means all witnesses he chooses to examine. Otherwise the legislative intent would be defeated. Supposing a party finds that a witness named in the complaint petition does not want to be involved in the trial and wants to opt out or that he has been gained over by the other side, can it be said non-examination of witness named in the complaint petition is fatal. Taking an extreme case, supposing a named witness is dead, can the complaint be dismissed because of his non-examination? If a witness has been gained over and the complainant has knowledge of it, he would run the risk of causing damage to his own case, if there is insistence that all witnesses named in the complaint petition must be examined. It would be a travesty of justice. A narrow interpretation of the expression "all witnesses" would frustrate the very purpose for which the provision has been inserted. All that the section requires is that each witness which the complainant chooses to examine to further its case must appear before the Magistrate so that the latter can be satisfied about existence of a prima facie case. A somewhat similar view has been taken by this Court in 1988 (II) OLR 288 : Jaladhar Das v. Sridhar Das.