- (1.) VINOD Prasad, J. The applicant Dr. Harvir Singh has filed this revision challenging the order dated 22-1-2007 passed by Additional Sessions Judge, Court No. 11, Aligarh in Criminal Revision No. 541 of 2006, Ravi Kant Savita v. State of Uttar Pradesh.
(2.) THE short question which is involved in this application is as to whether in a complaint case filed by the complainant Dr. Harvir Singh can a third person (Ravi Kant Savita) be allowed to get his statement recorded at the stage of inquiry under Section 202 Cr. P. C. against the wishes of the complainant and also without being summoned by the Magistrate for giving evidence. The short facts of the case are that a complaint was filed by Dr. Harvir Singh against Dr. R. N. Singh for offences under Section 406, 409, 420, 468 and 471 I. P. C. Police. Station Gandhi Park, District Aligarh. In the aforesaid complaint case complainant Dr. Harvir Singh examined himself under Section 200 Cr. P. C. and his witness Laxmi Chandra under Section 202 Cr. P. C. Trial Magistrate heard the complainant's Counsel on the question of summoning of the accused under Section 204 Cr. P. C. At this stage an application was filed by Ravi Kant Savita, an alien to the proceedings, that his application supported by an affidavit be kept on record under Section 202 Cr. P. C. The trial Magistrate was of the opinion that an alien to a proceeding has got no right to be heard and that Ravi Kant Savita was not a witness of complainant nor the Court has given him a direction to lead evidence and, therefore, he cannot be heard at all. It opined that the responsibility to prosecute the accused in a complaint case lies with the complainant. By such an opinion, which was just, legal and in accordance with the scheme of the Code of Criminal Procedure, the Judicial Magistrate, Court No. 3, Aligarh, who was inquiring in to the complaint filed by the complainant, Dr. Harvir Singh, rejected the application filed by Ravi Kant Savita on 17-11-2006 and fixed 28-11-2006 for hearing the arguments on the question of summoning the accused. The aforesaid order dated 17-11-2006 passed by the Magistrate was challenged by Ravi Kant Savita by filing Criminal Revision No. 541 of 2006 before the Sessions Judge, Aligarh, which was heard and allowed by Additional Sessions Judge, Court No. 11, Aligarh by passing the impugned order dated 22-1-2007, which order passed by the lower revisional Court is under challenge in this revision.
(3.) I have heard Sri V. P. Srivastava assisted by Sri Akhilesh Srivastava, learned Counsel for the revisionist and the learned A. G. A. on behalf of respondent No. 1 as well as Sri Dharmendra Singhal and Rahul Raghav on behalf of Ravi Kant Savita, respondent No. 2. The short question that arises for consideration is as to whether an alien to a proceeding can file an application and affidavit before the trial Magistrate while he is conducting an inquiry under Section 202 Cr. P. C. and can he compel the Court to hear him. The ancillary question is as to whether an alien to a proceeding can participate in the inquiry against the wishes of the complainant or the Court. For a better understanding of the said question Section 202 Cr. P. C. is quoted below : "202. Postponement of Issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he Is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (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) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.;