SRIBATSA KUMAR BARA Vs. SABITRI KARAN

JUDGEMENT

(1.) THE petitioners, accused persons in a complaint case for offence under Section 395, IPC, assail the order dated 28 -11 -1994 of the Judicial Magistrate, First Class, Baramba issuing processes following an enquiry under Section 202 of the Code of Criminal Procedure (for short, 'the Code'). The allegation was that the petitioners on 23 -1 -1994 in the dead of the night snatched away gold necklace from the person of the opposite party and removed a sum of Rs. 1200/ - from her house. During the enquiry under Section 202 of the Code, the Magistrate examined five witnesses out of the six. This is challenged by the petitioners on the ground that it was mandatory on the part of the Magistrate to examine all the six witnesses.

(2.) MR . S. S. Das, learned counsel for the petitioner raised two contentions in support of his case. Firstly, it was submitted that since the opposite party had lodged an FIR with the police it was obligatory on the part of the Magistrate to stay the proceeding in the complaint case until police submitted a final report; and secondly the Magistrate should have examined all the six witnesses named by the complainant as per the mandatory provision of proviso (2) to Section 202 of the Code. In support of the second contention Mr. Das relied on two decisions of the Division Bench of this Court in the cases of Goku ananda Mohanty v. Muralidhar Malik 47 (1979) CLT 244, and Dhaneswar Behara v. State of Orissa 1987 (II) OLR 562 and a single Bench decision in the case of Omprakash Sahu v. Manmohan Mohanty and Anr. : 57 (1984) CLT 355.

(3.) THE language employed in Sub -section (2) proviso to Section, 202 of the Code is plain in its meaning. It prescribes that, in a complaint case if the Magistrate is satisfied that the offence alleged is an offence exclusively triable by the Court of Session, the Magistrate is bound to examine all the witnesses for the complainant. The choice of examining any number of witnesses as per the plain reading of the language of the section itself is not left with the complainant. Mr. B. S. Mishra, learned counsel for the opposite party submitted that the complainant is free to examine his own witnesses and the Magistrate cannot compel him to examine all the witnesses. In support of this connection Mr. Mishra relied on three single Bench decisions in the cases of Dinabandhu Das and Ors. v. Batakrushna Das and Ors. :72 (1991) CLT 518, Brajabandhu Mohapatra and Ors. v. Trinath Rout :(1996) 10 OCR 538 and the decision reported in 1992 Cri LJ 1716 Rabindraprasad Singh and Ors. v. Lilibala Singh and Ors.