SHIVJEE SINGH V/S NAGENDRA TIWARI AND ORS AIR 2010 SC 2261

SHIVJEE SINGH V/S NAGENDRA TIWARI AND ORS AIR 2010 SC 2261

FACTS OF THE CASE

According to reports, respondent Nos. 1 to 4 killed the appellant’s son Ajay Kumar Singh on 1/2.1.1997. At the Isuapur Police Station, the appellant filed a First Information Report the same day. After finishing their investigation, the police sent in their final report on September 3, 1998, concluding that they had no idea who the culprits were. The appellant then filed a protest petition, alleging that the police had conducted the investigation improperly as a result of political pressure, and asking that the suspects be called to account and disciplined. The learned Judicial Magistrate directed that the protest petition be filed as a distinct complaint in an order dated 3.9.2002, while also accepting the final form that the police had submitted. Additionally, he ordered the complainant (here, the appellant) to present his witnesses. The appellant cross-examined himself and two of the four witnesses listed in the protest petition/complaint, but he gave up on the other two since he believed the accused had earned their favour. In an order dated December 13, 2006, Chief Judicial Magistrate Saran took cognizance of the offences against respondents Nos. 1 through 4 under Section 302 read with Section 120B of the Indian Penal Code and Section 27 of the Arms Act and ordered the issuance of non-bailable warrants against them. This was done after taking into account the testimony of the appellant and two witnesses.

 The respondents filed a petition under Section 482 Cr.P.C. to contest the Chief Judicial Magistrate’s ruling. The learned Single Judge agreed with their argument that the Chief Judicial Magistrate could not have established probable cause against them without requiring the appellant to question every witness, and he remanded the case to the relevant court for further consideration in light of the proviso to Section 202(2) Cr.P.C.

ISSUES

1. Does taking cognizance by a magistrate in a case that may only be tried by the court in session require the examination of every witness listed in the complaint?

 ARGUMENTS OF APPELLANT

The appellant’s knowledgeable attorney, Shri Gaurav Agrawal, contended that the proviso to Section 202(2) Cr.P.C. is not mandatory in nature and that the High Court made a serious mistake by referring the case to the Chief Judicial Magistrate for additional investigation solely on the basis that all of the witnesses named by the appellant had not been questioned. The learned attorney further stated that the Chief Judicial Magistrate’s decision to take cognizance against respondents Nos. 1 through 4 despite the non-examination of two witnesses listed in the protest petition-cum-complaint did not conflict with his conviction that a prima facie case had been established against them.

ARGUMENTS BY RESPONDENT

The Chief Judicial Magistrate made a serious error by taking cognizance against respondents Nos. 1 through 4 and issuing non-bailable warrants against them without insisting on the examination of the remaining two witnesses named in the complaint, according to Shri Gopal Singh, learned counsel for the respondents.

JUDGEMENT

We have taken into account each submission. By virtue of its name, the Criminal Procedure Code (Cr.P.C.) is a collection of criminal procedure laws. The provisions therein must be read while keeping in mind the widely accepted construction principle that procedural rules are intended to provide substantial fairness. Despite the word “shall,” a procedural infringement must be interpreted as a directive if it does not prevent the parties from receiving a fair hearing or otherwise harms them.

When a complaint is brought before a Magistrate, it is possible for him to take cognizance of an infraction after questioning the complainant and his witnesses under oath, according to an analysis of the rules above that have been reproduced. When a court files a complaint, when a public employee makes a written complaint while acting or purporting to act in the course of his official duties, or when the magistrate turns the case over to another magistrate under Section 192 for inquiry or trial, this procedure is not necessary to be followed.

As a follow-up to the aforementioned discussions, we hold that questioning all the witnesses cited in the complaint or whose names are disclosed by the complainant pursuant to the directive given by the Magistrate in accordance with proviso to Section 202(2) is not a requirement precedent for issuing a summons and complaint against the individuals named as accused in the complaint, and the High Court committed grave error in ordering the Chief Judicial Magistrate to do so.

The question that arises for consideration in this appeal filed against order dated 18.4.2007 passed by the learned Single Judge of Patna High Court in Criminal Miscellaneous Petition No.1778 of 2007 whereby he remitted the case to Chief Judicial Magistrate, Saran with the direction to make further inferences concerns whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions.

• As a result, the appeal is upheld and the contested order is annulled. We order the concerned Magistrate to issue a Section 209-appropriate order within one month of the day that a copy of this order is received or produced because the matter has been pending for more than 12 years. We further direct that the trial must begin and be finished within nine months of the case being committed by the Sessions Judge to whom the matter is assigned. A copy of this order should be sent to the Registrar General of the Patna High Court, who will present it to the High Court’s Honourable Chief Justice.

REFERENCES

https://indiankanoon.org

https://www.scconline.com

This Article is written by Ayushi Notani of Vivekananda Institute of Professional Studies

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