2013 (10) TMI 1573 - HC - Indian Laws

Summary

Issues Involved:
1. Non-compliance with the mandatory enquiry u/s 202 Cr.P.C. before issuing process.
2. Examination of a witness under section 200 Cr.P.C. who was not cited as a witness in the petition of complaint.

Summary:

Issue 1: Non-compliance with the mandatory enquiry u/s 202 Cr.P.C. before issuing process
The proceeding in complaint case No. C 2407 of 2012 was challenged on the grounds that the enquiry u/s 202 Cr.P.C. was not conducted before issuing process, despite the accused residing beyond the Magistrate's territorial jurisdiction. The court acknowledged the mandatory nature of the 2005 amendment to section 202 Cr.P.C., which requires an enquiry or investigation before summoning an accused residing outside the jurisdiction. The court analyzed various precedents, including *Udai Shankar Awasthi v. State of U.P.* and *National Bank of Oman v. Barakara Abdul Aziz*, which emphasized the mandatory nature of such an enquiry. However, the court concluded that non-compliance with section 202 Cr.P.C. does not automatically vitiate the proceedings unless it causes prejudice to the accused, as per section 465 Cr.P.C. The court found that the allegations and initial depositions sufficiently established the offence and the complicity of the accused, and no prejudice was caused by the lack of an enquiry u/s 202 Cr.P.C.

Issue 2: Examination of a witness under section 200 Cr.P.C. who was not cited as a witness in the petition of complaint
The second issue raised was that only one witness, Babai Lama, was examined under section 200 Cr.P.C., and he was not cited as a witness in the complaint. The court held that it is not a legal requirement for all witnesses to be named in the petition of complaint. The examination of a witness produced by the complainant, even if not named in the complaint, is not illegal. The court emphasized that the petitioners would have the opportunity to cross-examine such witnesses during the enquiry u/s 244 Cr.P.C. Therefore, the examination of Babai Lama did not cause any prejudice to the petitioners.

Conclusion:
The court dismissed the application, holding that the non-compliance with section 202 Cr.P.C. did not cause any prejudice to the petitioners, and the examination of a witness not named in the complaint was not illegal. The process issued against the petitioners was upheld.