- (1.) The petitioner has challenged the order dated 11.5.2009, passed by learned Chief Judicial Magistrate, Raebareli in Criminal Misc. Case No. 1380 of 2005, whereby he has been summoned for trial under Sections 302, 201 I.P.C. as well as the order dated 1.10.2010, passed by the court of revision, upholding the order passed by the learned Chief Judicial Magistrate.
(2.) Briefly, the facts of the case are that a case was registered against the petitioner pursuant to the order dated 26th July, 2004, passed by the learned Magistrate in exercise of power provided under Section 156(3) of the Code of Criminal Procedure (hereinafter referred to as 'Code') and the matter was investigated. After the investigation, the Investigating Officer submitted final report. The learned Magistrate cancelled the same and took cognizance of the offence as complaint case. He proceeded to record the statement of complainant as well as some of the witnesses. It appears that he did not proceed to record the statement of all the witnesses who were mentioned in the list of witnesses provided by the complainant. The petitioner claims that he proceeded with the case in violation of the provision of Section 202(2) of the Code as he did not examine all the witnesses in the court, particularly, the Medical Officer who conducted the post- mortem examination of the deceased.
(3.) The scope of Section 202(2) of the Code has been discussed by the Hon'ble Supreme Court in the case of Shivjee Singh v. Nagendra Tiwary and others, 2010 7 SCC 578 in the following manner:- "22.The use of the word "shall" in the proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Section 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the Magistrate concerned of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Here it is significant to note that the word "all" appearing in the proviso to Section 202(2) is qualified by the word "his". This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. 23. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say, whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.";