TMI Blog2005 (7) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... se petitions were mentioned before me by the learned Public Prosecutor. The learned Public Prosecutor requested me to give an opportunity to the learned Advocate General to make his submissions. Accordingly, on 15th July 2005, I have heard submissions of the learned Advocate General. The learned Senior Counsel appearing for the Petitioners replied to the submissions made by the learned Advocate General. I had the benefit of perusing the written submissions filed by the learned Counsel on behalf of the Petitioners and the submissions in writing filed by the Respondent No.2 appearing in person who is the original Complainant. 2. These petitions can be disposed of by a common Judgment and Order as the facts and the questions involved are identical in all these petitions. For the sake of convenience reference is made to the facts of the case in Criminal Writ Petition No.1274 of 2005. The Petitioners are the original accused and the Respondent No.2 is the original Complainant. A private complaint has been filed by the Respondent No.2 in the Court of the learned Metropolitan Magistrate, 23rd Court, Ballard Estate, Mumbai, alleging commission of offence punishable under section 138 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of 2004. While passing the said order, the learned Single Judge recorded his primafacie disagreement with the view taken by another learned Single Judge of this Court in his Judgment dated 2nd September 2004 in Criminal Writ Petition No.26 of 2004 in the case of Raminder Singh Sahani v/s. Japfa Oberoi Agro Ltd. anr. (hereinafter referred to as Raminder Singh s case). By the said order dated 8th October 2004, the learned Single Judge made a reference to the Division Bench for considering the following question: (i). Whether inspite of mandate of section 145(1) of the said Act of 1881 the Court is obliged to examine Complainant even in respect of the matters which have been stated on affidavit which is to be treated as Examination-in-chief of the witnesses? 5. Accordingly, Criminal Writ Petition No.1228 of 2004 (KSL Industries Ltd. v/s. Mannalal Khandelwal anr.) along with connected matters were placed before the Division Bench of this Court. Apart from another issue, the Division Bench observed that the following issue arises for its consideration: Whether in spite of mandate of section 145(1) of the Act, the Court is obliged to examine the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the facts which are already incorporated in the affidavit of examination-in-chief. He submitted that the law laid down by the Division Bench is consistent with the objects of the provisions of the said Act of 1881. The Respondent No.2 appearing in person has submitted written submissions and he submitted that the Division Bench has decided the issue and it is not open for the learned Magistrate to direct that examination-in-chief of the Respondent No.2 should be recorded even after he has filed an Affidavit of Examination-in-chief. 8. I have carefully considered the submissions made by the parties. Before dealing with the said submissions, a reference will have to be made to the statutory provisions. Section 145 of the said Act of 1881 reads thus: Evidence on affidavit- (1). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding under the said Code. (2). The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference. Relying upon the decision of the Full Bench of the Andhra Pradesh High Court reported in AIR 1992 AP page 368 (K.Pamanna v/s The State Transport Appellate Tribunal), the learned Counsel for the Petitioners rightly submitted that the view expressed in the order of reference to a larger Bench does not amount to a law declared by the Court. A submission was made by the learned Counsel that the Division Bench in the case of KSL Industries has not framed the question with regard to the scope and ambit of sub-section (2) of section 145. Though, in the two issues which are framed by the Division Bench, there is no reference to sub-section (2), in my view, the second issue framed by the Division Bench squarely covers the question which was referred to the decision of the larger Bench by the learned Single Judge. The said issue No.2 reads thus: (ii). Whether in spite of mandate of section 145(1) of the Act, the Court is obliged to examine the complainant even in respect of matters which have been stated on affidavit? There is no substance in the submission that the relevant issue was not before the Division Bench for consideration. 11. Relying on the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-examination of the complainant must be concluded within three months of assigning the case . The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court. (Emphasis supplied). The Division Bench held in paragraph 38 that once evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceedings. In paragraph 39, the Division Bench has held that the evidence of the Complainant can be given on affidavit and thereafter if the accused so desires, he/she may request the Court to call the complainant for cross-examination. Direction (b) issued by the Division Bench refers to all the three categories of examination of witnesses, viz. examination-in-chief, cross-examination and re-examination. The direction records that the Court dealing with a complaint under section 138 of the said Act of 1881 has option of accepting affidavits of the witnesses instead of examining the witnesses in Court. The Division bench further directed that once affidavits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court ( See CIT v Sun Engg.Works (P) Ltd. ) Applying the test adopted by the Apex Court, the said decision of the Division Bench will have to be read as a whole and the observations which are made by the Division Bench will have to be considered in the light of the questions which were before the Division Bench. The conjoint reading of paragraphs Nos.38, 39 and clause (b) of the paragraph No.40 of the Judgment of the Division Bench shows that the issue which was referred has been clearly decided. This leaves no doubt that the Division Bench has laid down the propositions of law which are summarized above in paragraph No.11. The decision of the Division Bench is binding on this Court and effect will have to be given to the said decision. 13. Another submission of the learned Counsel for the Petitioners was that the decision of the Division Bench is contrary to law and requires reconsideration by the larger Bench. The submission of the learned Counsel for the Petitioner is that the use of the word may in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 296. Evidence of formal character on affidavit. - (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code. (2). The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit. The language used in sub-section (1) of section 145 is different. It starts with a non-obstante clause. The said provision carves out an exception to the provisions of the Code of Criminal Procedure, 1973. Therefore, the Petitioner cannot press into service the said decision of the Apex Court in the case of State of Punjab (supra). In the statement of objects and reasons of the amending Act, it is stated that the amendment is aimed at early disposal of the cases. A reference will have to be made to the decision of the Apex Court in ( 2001) 6 S.C.C. page 463 (Dalmia Cement (Bharat) Ltd. v/s.Galaxy Traders and Agencies Ltd. And others). In paragraph 4 of the said decision the Apex Court has noted that section 138 of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by the learned Counsel appearing for the Petitioners will have to be rejected. The learned Counsel tried to submit that if in all cases examination-in-chief of the Complainant is allowed to be recorded by an affidavit, it will deprive the court of an opportunity of observing demeanour of the Complainant. The answer to this submission is in the aforesaid Judgment in the case of Dalmiya Cement. The Apex Court has noted the reason why special procedure has been laid down in the cases under section 138 of the said Act of 1881. 15. Turning back to the facts of the case, it must be noted that the application made by the Petitioners was under sub-section (2) of section 145 of the said Act of 1881 with the prayer for summoning the Respondent No.2. The learned Judge by the impugned order has rejected the Application. In my view the Application could not have been rejected as the Respondent No.2 who has filed affidavit of examination-in-chief will have to step into the witness box and offer himself for cross-examination by the Petitioner-accused. There can be re-examination of the Respondent No.2, if permissible, in accordance with the law. Therefore, while rejecting the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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