Case Note & Summary
The petitioner, Chandrakant Shriram Sharma, is the complainant in S.C.C. No. 1292/2009 pending before the Judicial Magistrate, First Class, Pachora, District Jalgaon. The trial is in progress. The petitioner made an application (Exhibit 39) before the Magistrate mentioning the names of a number of persons as witnesses and praying that they be summoned. The learned Magistrate by his order dated 12.05.2011 allowed the said application only partly. The Magistrate observed that the names of three witnesses were mentioned in the complaint and therefore they could be summoned, but refused to summon the other witnesses on the ground that they were not cited in the complaint. The petitioner challenged this order by way of a criminal writ petition before the High Court. The High Court held that the Magistrate's approach was erroneous. The court noted that under Section 244 of the Code of Criminal Procedure, 1973, the complainant in a warrant case instituted on a private complaint has a right to examine witnesses in support of his case. The Magistrate cannot refuse to summon witnesses merely because they were not cited in the complaint. The court clarified that the stage under Section 244 is an inquiry, not a trial, and the Magistrate has discretion to refuse to summon witnesses only if the application is made with a view to vex or delay or defeat the ends of justice. In the present case, the Magistrate's order did not record any such finding. The High Court, therefore, set aside the impugned order and directed the Magistrate to reconsider the application and pass a fresh order in accordance with law, after hearing both sides.
Headnote
A) Criminal Procedure Code - Summoning of Witnesses - Section 244 CrPC - Right of Complainant - The complainant in a warrant case instituted on private complaint has a right to examine witnesses in support of his case. The Magistrate cannot refuse to summon witnesses merely because they were not cited in the complaint. The Magistrate must exercise discretion judicially and summon witnesses whose evidence appears essential to the just decision of the case. (Paras 2-6) B) Criminal Procedure Code - Inquiry vs. Trial - Sections 244 and 254 CrPC - The stage under Section 244 CrPC is an inquiry, not trial. The Magistrate has discretion to refuse to summon witnesses if the application is made with a view to vex or delay or defeat the ends of justice. However, in the present case, the Magistrate's order did not record any such finding and merely rejected the application on the ground that the witnesses were not cited in the complaint, which is not a valid ground. (Paras 4-6)
Issue of Consideration
Whether the Magistrate was justified in refusing to summon the witnesses named by the complainant in his application (Exhibit 39) on the ground that they were not cited in the complaint?
Final Decision
The High Court allowed the petition, set aside the impugned order dated 12.05.2011, and directed the Magistrate to reconsider the application (Exhibit 39) and pass a fresh order in accordance with law, after hearing both sides.
Law Points
- Right of complainant to examine witnesses
- Section 244 CrPC
- Section 254 CrPC
- Power of Magistrate to summon witnesses
- Distinction between inquiry and trial
