Criminal Application No.120 of 2004

5th May, 2005

Petitioner Counsel: Mr. V. G. BHAMBURKAR
Respondent Counsel: Mr. SONTAKKE

Cases Cited:
Bhiku Yeshwant Dhangat Vs. Baban Maruti Barate, 2000 ALL MR (Cri) 1437=2001 Cri.L.J. 295 [Para 10]

JUDGMENT

JUDGMENT :- Rule, returnable forthwith and is heard with the consent of the parties.

2. The present applicant is the complainant in Criminal Case No.363 of 2001 filed before the Judicial Magistrate First Class, Court No.5th, Nagpur. Sessions Court had dismissed the complaint as it did not accompany list of witness, nor did the complaint contain names, by quashing the order of issue of process.

3. When the case was heard on the last occasion, learned Counsel for applicant Shri. Bhamburkar very seriously objected to the findings of Sessions Court, while saying that the list of documents was already on record. Learned Counsel had failed to file the copy of said list with present Criminal Application and prayed for calling of R & P. Accordingly R & P was called.

4. It has revealed from the record that the complaint was filed on 6-12-2001 and was accompanying by Vakalatnama and xerox copies of two documents. On 21-12-2001, Verification statement on oath was recorded, and the learned Trial Court was pleased to order issue of process by order dated 19-7-2002.

5. The list of documents was not filed on any day before order of issue of process. It is seen from record that a list of documents dated 9-10-2002 is seen in the record at page 46. Roznama dated 9-12-2002 reads as follows :

"9-10-2002 : Complainant and his counsel present. Accused are absent and their Counsel are present. Application for grant of exemption of both accused, say given by Counsel for complaintant orders passed on it granted. Case for App. on 4-12-2002."

After above copied Roznama, there are no proceedings recorded by Court, and last endorsement is dated 29-11-2002 wherein it is recorded that in view of judgment of Sessions Court proceedings are closed.

6. It is seen that after the accused present respondents sought exemption on 9-10-2002 in the Trial Court, they challenged the order of issue of process by filing Criminal Revision No.430/2002. In the said revision, the contention that was raised led to the discussion as to whether the complaint was legally filed being not accompanied by a list of witnesses as well as without incorporating in the body of the complaint the names of the witnesses.

7. It is seen from the record that the revision application was filed before the Sessions Court on 24-9-2002 and the Court passed order admitting it issuing notices and calling R & P by order dated 26-9-2002.

On 26-9-2002, the requisition/order calling R & P seems to have been received by the Trial Court and the R & P of the case was sent to the Sessions Court which was received in the Sessions Court. The present applicant/original complainant has put appearance in the Sessions Court submitting its written reply on the very first date, in the form of preliminary objection to the maintainability of the revision application on 23-10-2002. In para 3 of the reply, statement is made which reads as follows :

"3. Now, the object of the provisions, of the Section 204(2) are important to facilitate the accused persons to know the case, he has to meet. The procedure is admitted to be important as analogous to the one, initiated by the police, where, after investigation, a final report is submitted under Section 173(8) Cr.P.C. On the appearance of the accused person, before the commencement of trial, the list of witnesses along with other documents are supplied to him. To achieve same purpose, the list of witnesses is appended, whom the complainant will choose, to examine with the complaint U/s.204(2) Criminal Procedure Code. But if the object and purpose, intended in the provisions of Section 204(2) are otherwise satisfied by the complainant, without any prejudice being caused to the accused persons, the complaint cannot be quashed and it does not vitiate the trial. The irregularity have already been cured by the complainant by filing list of witnesses on dated 9-10-2002 i.e. before commencement of the trial and without prejudicing the accused persons at all."

(Underlined is the same as is in the original record). The underlining suggest that list of witnesses was filed on 9-10-2002.

8. The controversy has been dealt with by the learned Sessions Judge in para 7 of the Judgment that "mere non-filing of the list of witnesses cannot be said to be fatal to the complaint as was contended by the Original complainants". Learned Sessions Judge after hearing the revision found from the record that "it is true that in all the cases a separate list need not be insisted and the names of the witnesses can well be found in the body of the complaint itself. However, a bare perusal of the complaint in the case shows that there is absolutely no mention of the names of prospective witnesses. Learned Judge has further recorded that the respondent no.1 present applicant also argued that in the absence of any list of witnesses or the names not being incorporated in the complaint, it was liable to be inferred that the complainant wanted to examine herself as a sole witness.

9. Upon these factual matrix namely that a list of witnesses was not filed along with the complaint or at any time filed prior to the date of issue of process, nor complaint contained names of witnesses the learned Sessions Judge found that the complaint was not filed or prosecuted in conformity with Section 202(2) of Cr.P.C. and consequently, allowed the Revision Application and dismissed the complaint.

10. Reliance has been placed by applicant on reported judgment 2001 Cri.L.J. 295 : [2000 ALL MR (Cri) 1437], Bhiku Yeshwant Dhangat and Others Vs. Baban Maruti Barate and others does not support the applicant since there is nothing on record to show or suggest that the names of the witnesses were the part and parcel of the complaint or in accompaniment thereto.

11. Apart that, the Judgment of the Learned Sessions Judge is otherwise legal and correct, the above referred doubtful circumstances lead to a situation namely that no interfere is called for. In the aforesaid situation, the present Criminal Application does not call for interference.

12. In the light of strongly urged and boldly pressed submission of learned Counsel Shri. Bhamburkar about fact of filing of list of documents for which R & P was called needs to be examined, analysed and dealt with.

As has already been noticed from the records and proceedings that the list of documents has been presented much after the order of issue of process was passed, rather same time after proceedings dated 9-10-2000 were closed by the Trial Court. It is also seen from the record of the Trial Court that the list of documents which is found at page 46 does not, therefore, find a reference in the Roznama. Said list does not bear the endorsement of the Judge having "read and recorded" or whatsoever. The list of documents is also not accompanying any application for leave to produce the same, nor say of the accused has been called thereon.

13. The objection filed before the Sessions Court is signed and verified by the learned Counsel for the complainant, Shri. A. A. Panchabhai whose Vakalatnama is on record and whose signature on Vakalatnama and on the reply at page 12 of the Revisional Court tallies when compared. It is also seen that the said objection is not signed by original complainant. The learned Counsel who appeared for the original complainant in the Trial Court and in Sessions Court is one and the same. It is seen prima facie, that without knowledge or connivance, participation and involvement of the learned Advocate, such implant of papers in record of Trial Court cannot take place. The conduct of Court staff handling the file also attracts inference against them. However, these observations are as to what appears prima facie and what would be found out lateron after investigation would lead to fact finding as to how such tampering with record of Court has taken place.

14. The observations made by me relating to the page No.46 seen in the Judgment call for enquiry by the District and Sessions Judge himself or by any Judicial Officer of Sessions Court as he may nominate, as to how without his endorsement the papers entered the file, and also to propose and initiate action as permissible under law against any person or persons Court staff or otherwise who may be found responsible for tampering of and with records of the Court.

15. The learned District and Sessions Judge shall ensure that the enquiry to be got done shall be completed within six weeks from the date of receipt of order from this Court shall report to this Court the compliance.

Order accordingly.