J.M.L. Sinha, J. - (1.) THIS is an application under Section 482 Code of Criminal Procedure praying that the order dated 6 -4 -1976, passed in Criminal Case No. 209 of 1975 by Munsif Magistrate, Koil, Aligarh, be quashed.
(2.) THE facts leading to this application can briefly be stated as under : - - On or about 6th of October, 1975, Ram Phool, hereafter to be called the opposite party No. 2, filed a complaint against the present applicants in the Court of Munsif Magistrate, Koil, Aligarh, inter alia, alleging that on 30th of September 1975 the applicants trespassed into his house during his absence, beat his wife and sister -in -law with kicks, fists and lathis causing injuries to them and one of the applicants viz. Ram Charan robbed a golden Hansli from the neck of Bhagwan Devi, the wife of opposite party No. 2. It was prayed in the complaint that the applicants be prosecuted for offences under Sections 147, 323 and 379 IPC. The Magistrate recorded the statements of the witnesses under Section 202 of the Code of Criminal Procedure and, thereafter, came to the conclusion that a prima facie case under Section 395 IPC was made out against all the applicants and, accordingly, passed the impugned order summoning the applicants to stand their trial for that offence. Feeling aggrieved against that order, the applicants have filed the present application. I have heard learned Counsel for the applicants. The first point urged by learned Counsel is that, in view of proviso appended to Section 202 of the Code of Criminal Procedure it was obligatory for the Magistrate to have recorded the evidence of all the witnesses of the complainant. learned Counsel pointed out that a number of witnesses were mentioned in the list but the learned Magistrate did not exhaust that list and, therefore, committed an illegality in passing the impugned order. I regret my inability to accept this argument. On the own showing of the applicants, the Magistrate did record the evidence of some of the witnesses. The mere fact that in the list accompanying the complaint some more witnesses were named did not mean that the complainant should have examined all of them. A party is expected to examine only such number of witnesses as he deems sufficient to make out his case. The requirement of proviso appended to Section 202 only is that the Magistrate shall call upon the complainant to produce all his witnesses. On being called upon by the Magistrate under that provision of law the complainant can produce such witnesses on which he places reliance for the purposes of his case, It is quite possible that the complainant in the instant case only relied on the evidence of the witnesses already examined by him and, therefore, did not examine the remaining witnesses named in the list. It was no part of the Magistrate's duty thereafter to examine the remaining witnesses. In my opinion, therefore, the learned Magistrate committed no illegality in passing the impugned order without exhausting the entire list.
(3.) LEARNED Counsel next urged that even on the allegations in the complaint no offence under Section 395 IPC was made out. It was urged that the act of snatching the Hansli from the neck of Bhagwan Devi was the individual act of Ram Charan and that it could not be said that the remaining applicants were also privy to that act. learned Counsel urged that even on the allegations contained in the complaint this could at best be a case under Sections 147, 323 and 379 IPC and not 395 IPC. Assuming it is so, it cannot be a ground for quashing the order, for, such an argument can still be raised by the applicants after putting in their appearance before the Court concerned.;