- (1.) This application under Section 482 Cr.P.C. has been filed for quashing the impugned orders dated 6.8.2014 as well as 10.11.2014 passed by Chief Judicial Magistrate in Criminal Complaint Case No. 26503 of 2006 (Kashi Nath Rai v. Vashishth Rai and others) under Sections 302, 328, 392, 201, 119, 167, 364, 197, 504, 506 and 120-B IPC P.S. Harbansh Mohal District Kanpur Nagar. Heard applicant's counsel as well as learned AGA. Entire record has been perused. It transpires from the record that the applicant is the complainant of the case and the complaint relates to the offence triable by the Court of Sessions. It appears that several names were given in the list of the witnesses by the complainant but later on it was decided by the complainant not to examine all of them and it was thought fit that only some of the witnesses are need to be examined and rest of them are to be given up. As the statute of Code of Criminal Procedure required the examination of all the witnesses given in the list in the cases which are triable exclusively by the Court of Sessions, therefore, the Court below insisted on the examination of all the witnesses and passed the impugned order to the same effect.
(2.) The submission of the counsel is that though in the ordinary course all the witnesses of the list should be examined but if the complainant himself does not desire to produce certain witnesses, then the Magistrate can also validly proceeded to decide on the point of summoning of the accused on the basis of the evidence produced on behalf of the complainant and if he deems it fit to summon the accused on the strength of the witnesses examined by the complainant in the Court then there is nothing illegal about it. The counsel has drawn the attention of the Court to the language of Section 202(2) Cr.P.C. and its proviso which reads as follows: 202. Postponement of issue of process.--(1)....................... (a)............................................. (b)............................................. 2. In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. 3..............................."
(3.) The submission is that the word used in the proviso of Section 202(2) Cr.P.C. is that the Court shall call upon the complainant to produce all 'his' witnesses. It has been emphasized by the counsel that the use of the word ' his' is a qualifying expression and the same implies that only those witnesses shall be required by the Court to be produced whom the complainant desires to produce. In this regard reliance has been placed on Apex Court decision given in the case of Shiv Jee Singh v. Nagendra Tiwary and others, 2010 7 SCC 578, in which the Hon'ble Supreme Court took the same view.;