TaxTMI 
TaxTMI 
2008 (8) TMI 975
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....nt petition have not been examined by the complainant. 2. The facts of the case in short are as follows; on the statement of respondent No. 5, a F.I.R. was lodged bearing Mashrak P.S. Case No. 191 of 1995, under Section 307 of the Indian Penal Code, and under the Arms Act, dated 15.8.1995. While the investigation was going on, the informant filed a protest petition on 31.1.1996 alleging therein that investigation is being carried out in a perfunctory manner to protect some of the accused persons. The police after investigation submitted final report on 31.7.1996 in favour of the accused persons. However, case proceeded on protest cum complaint petition, but at a snail's pace. The enquiry lingered for nine years. It appears that one Gardanibagh P.S. Case No. 339 of 1995 was instituted against the prosecution side in which all the accused persons named in this case are eye witnesses. As the aforesaid case also too proceeded slowly, a bench of this Court gave directions for its expeditious disposal. It is the case of the petitioners that when aforesaid direction for expeditious disposal was ordered in Gardanibagh P.S. Case No. 339 of 1995, the prosecutrix of the instant case, w....
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..... providing bar to taking cognizance, after lapse of period of limitation, is in respect of offences, which at the most carry the maximum punishment upto three years. Learned Counsel in support of his contention relies upon decisions in the case of Sanapareddy Maheedhar and Anr. v. State of A.P. and Anr. 2008 (3) P.L.J.R. 305 SC as well as in the case of Meena Devi and Ors. v. State of Bihar and Ors. 2003 (3) P.L.J.R. 464 at paragraph 6. 5. On this basis he submits that delay in enquiry under Section 202 Cr.P.C. does not affect right to speedy trial as same has not yet commenced and accused has not suffered any prejudice. He submits that complainant cannot be compelled under proviso to Section 202(2) Cr.P.C. to produce all his witnesses. 6. After having heard counsel for the parties, this Court takes up the first issue raised by counsel for the petitioner that a delay of long 9 years in taking cognizance and summoning the accused persons to face trial, is in violation of Article 21 of the Constitution of India. 7. Article 21 of the Constitution of India guarantees right to life and liberty. The Hon'ble Apex Court has observed that speedy trial is a fundamental right im....
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....elays justice itself. This Court finds that the accused has figured in the picture of this case only after 28.8.2006, on which date a direction for issuance of summons to appear in this case was issued to them. In such circumstances, this Court is of the view that the delay in completing enquiry and issuing summons to face trial has not infringed their fundamental right to speedy trial as they have been summoned to face trial in only August, 2006. The delay nevertheless has not adversely prejudiced any right, much less right to speedy trial of the petitioners. 11. There is basic difference regarding locus standi of a person who is arrayed as an accused in a complaint case vis-à-vis one who is an accused in a police case. In a police case if accusation made against a person, discloses a cognizable offence he immediately becomes an accused and is liable to be arrested also. Thus in a police case right to speedy trial accrues with apprehension of actual restraint imposed by arrest and consequent incarceration at the stage of investigation, enquiry, trial, appeal and revision. In such circumstances a person is subjected to all possible prejudice that may result from imperm....
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.... materials already on record. Contrarily there may be cases, where even after due efforts the complainant is not able to produce his witness, which would be very essential for coming to a right decision in enquiry on account of such persons having gone abroad, or missing or under going incarceration in a case or being unable to come and depose on account of physical disability. In such exceptional cases, the period indicated above can be relaxed, on recording such satisfaction. 16. Now I come to the second issue raised by learned Counsel for the petitioners that non-examination of all the witnesses mentioned in protest cum complaint is in contravention of proviso to Section 202(2) Cr.P.C. Before examining this provision, it would be useful to quote Sections 200 and 202 Cr.P.C. in its entirety which runs as under: 200. Examination of complainant- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint....
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....mine the complainant and the witnesses present, if any. Section 200 Cr.P.C. does not make a distinction between a case to be tried by a Magistrate or the ones exclusively triable by a court of sessions. A case can be visualized where the complainant is the only eye witness or in which all the eye witnesses which the complainant propose to examine were also present when the complaint was filed and they were all examined as required under Section 200 Cr.P.C. In such a case the complainant when asked to produce all his witnesses under Section 202 of the Code would be at liberty to submit to the Magistrate that he has no other witness than those who were already examined under Section 200 Cr.P.C. In such cases the complainant under proviso to Section 202(2) Cr.P.C. cannot be compelled to produce all his witnesses in enquiry as he has examined them all under Section 200 Cr.P.C. The Magistrate on the basis of the materials produced before it in course of examination under Section 200 Cr.P.C. can either dismiss the complaint under Section 203 Cr.P.C. or can issue process under Section 204 Cr.P.C. if he finds that there is sufficient grounds for proceeding it can issue summons or warrant f....
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....e and would not be willing to depose in the case any more. In such situation the complainant cannot be compelled to examine all such witnesses named earlier in the complaint. The spirit of the word 'shall' used in the proviso would mean that the court would be bound to examine all such witnesses that the complainant would propose to examine. Further more, the expression "all his witnesses" occurring in the proviso is equivalent to all the complainant's witnesses. The expression complainant's witness in ordinary parlance in the absence of anything to the contrary would mean such witnesses as the complainant chooses or desires to examine on his behalf. If the court considers that an examination of a particular witness is necessary in the enquiry it will be open to him to exercise such jurisdiction under Section 311 Cr.P.C. in ends of justice. A similar view as of mine has more or less been taken by a Division Bench of this Court in case of Naresh Singh and Ors. v. State of Bihar, 1988 P.L.J.R. 216. It would be expedient to quote the relevant extract of Para-9 of the aforesaid judgment: 9. In my view the requirement of proviso to Sub-section (2) of Section 202....
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....uch committal of cases to the court of sessions without examining any witness either under Section 200 or 202 Cr.P.C. is not desirable as Public Prosecutor under Section 226 Cr.P.C. would be helpless to state "by what evidence he proposes to prove the guilt of the accused". The Apex Court while interpreting the proviso to Sub-section (2) of Section 202 Cr.P.C. though in aforesaid circumstances, observed that if a Magistrate omit to comply with the above requirement of examining all the witnesses mentioned in the complaint, the same would not by itself vitiate the proceeding. It would be useful to reproduce paragraph 25 of the judgment which runs as under: 25. Thus I have no doubt that, the proviso incorporated in Sub-section (2) of Section 202 of the Code is not merely to confer a discretion on the magistrate, but a compelling duty on him to perform in such cases. I wish to add that the magistrate in such a situation is not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses. Of course, if the complainant requires the help of the Court to summon such witnesses it is open to the magistrate to issue such summons, for....
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....face trial, Learned Counsel have also relied upon a decision in the case of Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors. (1998) S.C.C. 749 at para 28 of the judgment. It would be useful to reproduce paragraph 28 of the aforesaid judgment which runs as under: 28. Summoning of an accused in a criminal case is a serious matter. Criminal Law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the co....