Sayeeda Farhana Shamim Vs. State of Bihar & ANR. [2008] INSC 981 (16
May 2008)
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2008 [Arising out of S.L.P.(Crl.) No.4247 of 2007]
Sayeeda Farhana Shamim Appellant Versus State of Bihar & Anr. Respondents
A.K. MATHUR, J.
1. Leave granted.
2. This appeal is directed against
the order dated 13.12.2006 passed by learned Single Judge of the Patna High
Court whereby the learned single Judge of the High Court has quashed the order
passed by the learned Sub- divisional Judicial Magistrate, Bhagalpur
(hereinafter to be referred to as the S.D.J.M.) in Complaint Case No.1115 of
1999 by which the learned S.D.J.M. allowed prayer of the complainant by order
dated 25.5.2005 to examine five witnesses named in the supplementary list filed
by the complainant. A complaint was filed under Sections 323, 406, 498A of the
Indian Penal Code and under Sections 3 & 4 of the Prevention of Dowry Act.
Therefore, the limited 1 question arose whether the complainant can file a
supplementary list of witnesses or not.
3. In order to appreciate the
controversy involved in the matter brief facts may be enumerated. A complaint
was filed under Sections 323, 406, 498A of the Indian Penal Code and under
Sections 3 & 4 of the Prevention of Dowry Act. The S.D.J.M. registered the
complaint. Syed Abdul Shamim, the father of the complainant was examined under
Section 202 of the Code of Criminal Procedure but he died on 9.1.2001.
Therefore, this witness could not be tried during the trial. Out of the
remaining four witnesses, only two witnesses i.e. Syed Abdul Shalim and Mohd.
Sheru were examined before charge and were also examined after the charge. The
rest of the two witnesses namely, Syed Abdul Fahim and Syed Obaidulla were
gained over and therefore, they did not come to the witness box. Then, an
application was filed by the complainant to examine further witnesses before
the charge on 3.1.2003. The accused persons filed a rejoinder on 5.1.2003.
However, the S.D.J.M., Bhagalpur rejected the petition filed on behalf of the
complainant to examine further witnesses before charge by its order dated
1.5.2003. The S.D.J.M. framed the charge on 30.8.2004. Then again on 24.1.2005
the complainant filed a petition before the S.D.J.M., Bhagalpur and prayed for
issuance of summons to the witnesses whose 2 names appeared in the list
attached with the application.
That application was filed by the
complainant after the charges were framed and the witnesses were cross-examined
after the charge. As the rest of the witnesses were gained over and they did
not support the case of the complainant, therefore, a supplementary list of
witnesses was attached to the application filed by the complainant namely, (i)
Md.
Wajahat son of Md.Ilyas, resident
of Balha Narayanpur, P.S.
Bhawanipur, District Bhagalpur,
(ii) Md. Zafar son of late Habib, (iii) Bibi Afsana Shamim wifeof late Saiyad
Abdul Shamim, (iv) Pappu alias Ram Chandra Tiwari son of Basahan Tiwari and (v)
Md. Rasid son of lat Md. Safi, all of Mohalla Barahapura, P.S.Ishakchak,
District. Bhagalpur. A rejoinder was filed to the petition filed by the
complainant. However, on 25.4.2005, learned S.D.J.M. after hearing both the
parties allowed the application filed by the complainant and the complainant
was directed to examine all the five witnesses whose names appeared in the
list.
The S.D.J.M. found that this was a
case of torturing a married woman and demanding dowry which are continuing
offences, therefore, some more persons can throw light on the occurrence which
may help the S.D.J.M. to arrive at a just decision and do proper justice to the
parties. This order passed by the S.D.J.M. on 25.4.2005 was challenged by the
respondents by filing a petition before the High Court.
3 Meanwhile, on 16.11.2005
Md.Zafar was examined in chief and he was also cross-examined later on
23.1.2006. On 30.3.2006 Md.Razi was examined and he was also cross- examined by
the defence on the same day. Therefore, out of the five witnesses two witnesses
were examined and three witnesses remained to be examined. Meanwhile, on
13.12.2006 the petition filed by the respondents before the High Court was
allowed and the order of the S.D.J.M. passed on 25.4.2005 in Complaint case
No.1115 of 1999 was quashed.
Learned Single Judge of the High
Court took the view that the names of these witnesses were not given as
required under Section 204(2) of the Code of Criminal Procedure (hereinafter to
be referred to as Cr.P.C.). Therefore, at a later stage supplementary list of
witnesses under Section 244(2) Cr.P.C. could not be furnished to be examined.
Learned Single Judge accordingly, allowed the petition and quashed the order of
the S.D.J.M., Bhagalpur.
Hence, the present appeal.
4. We have bestowed the best of
our consideration to the order passed by the learned Single Judge of the Patna
High Court. The procedure as to how to proceed on a complaint filed before the
Magistrate has been dealt with in Chapter XV. Under Section 200, Cr.P.C. the
Magistrate taking cognizance of offence can examine on oath the complainant and
the witnesses, if any, and that shall be 4 reduced in writing and in case the
Magistrate is of the opinion that cognizable offence is made out, he can issue
summons under Section 204, Cr.P.C. and if he finds that no sufficient material
is there, then he can dismiss the complaint under Section 203, Cr.P.c. However,
in the present case, process was issued under Section 204, Cr.P.C.
Thereafter, charge was framed and
the trial began in the present case. Then under Section 244, Cr.P.C. the
S.D.J.M.
proceeded to hear the prosecution
and took all such evidence as was produced in support of the complaint.
Under Section 246, Cr.P.C. if the
accused is not discharged, then the Magistrate will proceed and take the
evidence of the remaining witnesses for the prosecution.
Now, the question is whether a
supplementary list of witnesses can be furnished by the complainant and the
Magistrate can summon those witnesses to be examined. The question is whatever
witnesses who have been examined under Section 244,Cr.P.C. the Magistrate
cannot entertain any further list of witnesses to be examined by the
complainant to substantiate his allegation in the complaint. It is true that
under Section 244, Cr.P.C. if the charge is framed, then the prosecution has to
examine the evidence produced by it in support of its case. After that the
accused will have the right to cross-examine and the matter will proceed to be
decided under Section 246. But before 5 the matter is decided and during the
pendency of the trial can the Magistrate entertain any petition filed by the
prosecution for examining additional evidence in support of its case.
5. Learned counsel for the
appellant invited our attention to the following decisions of various High
Courts.
-
1993 Cr.L.J. 32 Jamuna Rani v.
S.Krishna Kumar & Ors.
-
1992 Crl. L.J. 1554 Nawal
Kishore Shukla & Ors. v. State of U.P. & Anr.
-
1977 Crl.L.J. 425
S.Vvivekanantham v. R.Viswanathan & Ors.
-
AIR 1967 Kerala 233 V.Ratna
Shenoy v. S.A.Prabhu & Ors.
-
AIR 1960 Bombay 513 State of
Bombay v. Janardhan & Ors.
-
AIR 1958 Madras 341 K.Somasundaram v. Gopal & Anr.
Before, we refer to decisions of
various High Court, it may be mentioned here that the discretion of the
Magistrate is no where fettered by any of the provisions contained in Cr.P.C.
Section 244, Cr.P.C. reads as under :
" 244. Evidence for
prosecution.- (1) When, in any warrant- case instituted otherwise than on a 6
police report the accused appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the prosecution and take all such evidence as
may be produced in support of the prosecution.
(2) The Magistrate may, on the
application of the prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other thing."
The expression, used as `the
Magistrate shall proceed to hear the prosecution and take all such evidence as
may be produced in support of the prosecution'. Similarly, sub- section (6) of
Section 246, Cr.P.C. reads as under :
" (6) The evidence of any
remaining witnesses for the prosecution shall next be taken and after
cross-examination and re-examination (if any); they shall also be
discharged."
The expression used as, ` the
evidence of any remaining witnesses for the prosecution shall next be taken,'.
Therefore, the Magistrate has
discretion, before he closes the trial, to summon the witnesses if it advances
the 7 cause of justice. Here we want to say a word of caution that the
discretion which has been conferred on the Magistrate under Section 244(2) and
Section 246(6), Cr.P.C.
should be used in appropriate
cases for reasons to be recorded. The discretion should not be used fancifully
and for a mala fide purpose to harass the accused. It is quite possible that
sometimes when the complainant fails to substantiate the allegation, he may
resort to dilatory tactics and thereby harass the accused by giving
supplementary list to prolong the continuance of the case.
This should be checked but in case
it is found that in fact the application for summoning the additional witnesses
is made for bona fide purpose and to substantiate the allegations made in the
complaint, then the Magistrate may exercise such power in appropriate case.
6. Learned counsel for the
appellant invited our attention to the decision of the Andhra Pradesh High
Court in Jamuna Rani (supra) wherein learned Single Judge has referred to
various decisions of different High Courts i.e. Madras, Bombay and Allahabad
High Courts and held that the Court has discretion and it is not confined to
the witnesses mentioned in the list appended to the complaint but it refers to
any other witness mentioned in a 8 subsequent application filed before the
discharge order is passed by the Magistrate. It was held by the Andhra Pradesh
High Court in the case of Jamuna Rani (Supra) as under:
"Taking into account the
views expressed by the Madras, Bombay and Allahabad High Court and on
interpreting ` all such evidence' in S. 244(I), I feel that it does not limit
to the witnesses mentioned in the list appended to the complaint but it refers
to any other witness mentioned in a subsequent application filed before the
discharge order is passed by the Magistrate."
Similarly, the Allahabad High
Court in Nawal Kishore Shukla & Ors (supra) has taken an identical view.
Learned Single Judge of the High Court held as follows :
" As regards the order
permitting the complainant to examine a witness, not named in the list of
witnesses, the learned Magistrate could have done so in the circumstances of
the case. It was not necessary that al the witnesses named in the list of
witnesses should have been examined before such a permission could have been
granted. The witness was in attendance and the prosecution evidence was being
recorded under Section 244, Cr.P.C. The order by the learned Magistrate
permitting the complainant to examine the witness cannot be said to be illegal
or unjust."
9 Similar view was taken by the
Madras High Court in S.Vivekanantham (supra). In this case learned Single Judge
observed as follows:
"Section 244 is wide enough
to give power to a Court to accept a supplemental or additional list of
witnesses given by a complainant and to issue summons to them and record their
evidence. Nowhere the section lays down that the complainant will not be entitled
to file a supplemental list of witnesses nor the Court empowered to entertain
such a list and examine one or more of the witnesses cited therein.
Though Section 204(2) of the new
Code prescribes that no summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has been filed,
that cannot be taken to mean that a complainant is irretrievably chained to the
first list of witnesses filed by him and he cannot seek the permission of the
court to examine additional witnesses even where circumstances or interests of
justice warrant such examination. To hold otherwise would actually lead to
grave injustice and hardships to complainants."
10 Learned Single Judge has
followed the decision of the Division Bench of the Madras High Court in
K.Somasundaram (supra) which reads as under :
" The list filed under S.204
(1-A) can be added to by supplemental lists accompanied by applications to the
Court to summon those new witnesses. Such supplemental lists can be in addition
to all the witnesses in the primary list filed by the private complainant under
S.204(1) Crl. P.C., or in addition only to such of the witnesses in the primary
list whom he decides to examine. The phrase " take all such evidence as may
be produced in support of the prosecution"
in S.244(1), and S.244(2) and
S.252(2) Cr.P.C. shows the ample powers of the Court in this respect."
Similar view has been taken by the
learned Single Judge of the Bombay High Court in State of Bombay v. Janardhan &
Ors.( supra) wherein it has been
held as follows:
" After the insertion of
S.204 (1A), S.256 has to be read along with S.252 also with section 204(1A).
Therefore, in cases instituted
otherwise on a police report the complainant is restricted to the examination
of witnesses whose names are given in the 11 list under section 204(1A). At the
same time in a proper case the list can be added to with the permission of the
Court. The Court should not, however, give permission to add names to the list
if it is going to prejudice the case of the accused or if it is not in the
interests of justice."
Similar view has been taken by
learned Single Judge of the Kerala High Court in V.Ratna Shenoy (supra).
Relying on the decision of Madras High Court in K.Somasundaram (supra), the
learned Single Judge of the Kerala High Court observed as follows:
" I cannot agree with the
view that the word `remaining witnesses' involves only those that are left out
from the first list. It would be open to the learned Magistrate to examine
witnesses and to admit any essential documents which the prosecution wishes to
produce."
The Learned Single Judge observed
that the expression appearing in ` remaining witnesses' should be given wide
interpretation.
7. As against this, our attention
was invited to a decision of the Calcutta High Court in Hari Pada Banerjee 12
v. Hem Kanta Sen ( AIR 1969 Calcutta 429). Learned Single Judge of the Calcutta
High Court has held as follows:
" The expression `remaining
witnesses' in Section 256 should not be given an unnecessarily wide
interpretation and it means witnesses originally included in the list submitted
under Section 252(2) but not subsequently examined."
But as against this, the consensus
opinion of the High Courts of Andhra Pradesh, Kerala, Madras, Bombay and
Allahabad appears to be more sound.
8. In view of the consensus of the
opinion which has emerged from various decisions of the High Courts appears to
be that the power of the Magistrate should not be fettered either under Section
244 or under sub-section (6) of Section 246 of the Cr.P.C. and full latitude
should be given to the Magistrate to exercise the discretion to entertain a
supplementary list. But as we have already added a word of caution that while
accepting the supplementary list the Magistrate shall exercise its discretion
judiciously for the advancement of the cause of justice and not to give a
handle to the complainant to harass the accused.
13
9. As a result of our above
discussion, the view taken by learned Single Judge of the Patna High Court
cannot be sustained and consequently, the appeal is allowed and the order
passed by the learned Single Judge dated 13.12.2006 is set aside and it is for
the Sub-Divisional Judicial Magistrate, Bhagalpur to examine the remaining witnesses
from the supplementary list given by the complainant and then to proceed
according to law.
...............
......................J
[A.K.MATHUR] .....................................J New Delhi, [AFTAB ALAM] May 16, 2008.
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