AMAR SARAN,J. - (1.) HEARD learned counsel for the applicants and learned Additional Government Advocate. By means of this application the applicants have challenged an order dated 7.10.2009 passed by the Chief Judicial Magistrate, Gonda summoning the applicants in a case under sections 147/148/149/307/504/506 IPC. It is argued by the learned counsel for the applicants that earlier he had moved an application where he argued that until all the witnesses are examined under sections 200 and 202 Cr.P.C., the order issuing process could not have been passed and the earlier order dated 3.5.2008 was set aside and the matter was remanded back to the learned Magistrate for passing a fresh order in accordance with law. The present impugned order shows that after examining the complainant under section 200 Cr.P.C. and her witnesses under section 202 Cr.P.C., the impugned order was passed.
(2.) LEARNED counsel for the applicants states that the injured witnesses have not been produced, but some other witnesses who were themselves accused in an earlier cross-case lodged from the side of the applicants have been produced. Learned counsel for the applicants has placed reliance upon the decision of Supreme Court in Rosy and another Vs. State of Kerala and others, (2000) 2 SCC 230, in paragraphs 47 and 48. In the aforesaid paragraphs, I may mention that it is observed that the Magistrate is " not obliged to examine witnesses who could not be produced by the complainant when asked to produce such witnesses." From these lines, it is apparent that it is not always obligatory on the complainant to produce all the witnesses who may have the knowledge of the incident and discretion has been given to the complainant to produce some of his witnesses. However, it is further stated in the said paragraph that if the complainant seeks the help of the court for summoning the witnesses that he wants to produce, it will be open to the Magistrate to assist and issue summons for the production of the said witnesses. It is further observed in paragraph 48 " if the Magistrate omits to comply with the above requirement that would not, by itself, vitiate the proceedings. The above requirement is that if the Magistrate failed to summon the witnesses, if the complainant wants them to be summoned, otherwise, it is observed that provision of section 465 Cr.P.C. would apply and it would, therefore, have to be seen whether non-production has occasioned a failure of justice.
(3.) IT is not mentioned anywhere in the application that the complainant has not given any application that he wanted to produce all his witnesses. Therefore, I see no merits, in the objection raised by the learned counsel for the applicants.;