Petition u/s244(2) and 91 of cr.p.c

Advocate.S.A.Siddiq (Querist) 07 July 2012 This query is : Resolved
private Complaint u/s 190 r/w 419,465,341,506(II) .list of documents given. list of witnesses not given in complaint.

1) charges framed against accused. prosecution side filed petition u/s.244(ii) for depose and produce the documents.JM refused to order the summon to the witnesses and dismiss the petition . Reason given in order.... No list of witness given in complaint..... is it correct? Please give any citation and details etc..

2)Fraudulently and illegaly prepared and registerd document is in possession of accused. Complainant filed petition u/s. 91 of crpc to produce the documents in possession of accused. accused refused to produce the documents. JM pass the order in favour of accused. ... in order......not compel to produce the documents against accused.. is it correct ?

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Guest (Expert) 09 July 2012
It is not necessary to have list of witnesses filed at the time of filing of complaint.

Bombay High Court
Bombay High Court
Sunil Vassudev Pednekar vs Bicholim Urban Co-Operative Bank ... on 13 April, 2006
Equivalent citations: III (2007) BC 777, 2006 CriLJ 3114
Author: N Britto
Bench: N Britto
ORDER
N.A. Britto, J.
1. Heard Shri Vahidulla, the learned Counsel on behalf of the petitioner/ accused and Shri N. N. Sardessai, the
learned Counsel on behalf of the respondent/Complainant.
2. The Complainant has prosecuted the accused under Section 138 of the Negotiable Instruments Act, 1881,
for bouncing of three cheques in the sum of Rs. 7,20,000/-. The accused has challenged two Order of the
learned J.M.F.C. in the said case. The first Order dated 16-01-2001, issuing process against the accused and
the other dated 16-12-2004, permitting the Complainant to examine a witness, namely, the Bank Manager, a
witness who was not cited by the complainant, earlier. In fact, the Complaint was not accompanied by a list of
witnesses as required under Sub-section (2) of Section 204 of the Code of Criminal Procedure, 1973, (Code,
for short),
3. Rule was issued on 10-8-2005 and, therefore, this petition deserves to be disposed of on merits though it is
otherwise submitted on behalf of the Complainant, that revisional remedy was available to the accused against
the said Orders.
4. As far as the first Order dated 16-01-2001 is concerned, I am not inclined to exercise extraordinary
jurisdiction under Section 482 of the Code to allow the accused to challenge the same, as the accused has
approached this Court belatedly after more than four years, four months and that too after having
unsuccessfully challenged the said Order in revision before the Court of Sessions. Whether in the said revision
the ground of Sub-section (2) of Section 204 of the Code was taken or not would be immaterial since it was
expected on the part of the accused to have taken all grounds available to him, when he challenged the said
Order dated 16-01-2001 issuing process against him.
5. As far as the second Order dated 16-12-2004 is concerned, the learned J.M.F.C. has permitted the
Complainant to examine one witness by name Sharad Samant, whose name was earlier not cited by the
Complainant along with the complaint. The learned J.M.F.C. has permitted the Complainant to examine the
said witness under Section 311 of the Code and it is conceded on behalf of the Complainant that leave to
examine the said witness could not have been granted under Section 311 of the Code but under Section 254 of
the Code. Sub-sections (1) & (2) which are relevant reads as follows:
(1) If the Magistrate does not convict the accused under Section 252 or section 253, the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution,
and also to hear the accused and take all such evidence as he produces in his defence.
(2) The Magistrate may, if he thinks fit on the application of the prosecution or the accused, issue a summons
to any witness directing him to attend or to produce any document or other thing.
6. Shri Vahidulla on behalf of the accused has submitted that the Complainant was not entitled to examine any
further witnesses because the Complainant had filed no list of witnesses and in support of the said submission,
learned Advocate Shri Vahidulla, has placed reliance on the case of Sanyogita Shivnath Nandedkar v.
Suprabha Rajendra Junghare 2004 ALL MR (Cri) 2296.

On the other hand, Shri Sardessai, the learned Counsel on behalf of the respondents, has submitted that filing
of list of witnesses is not fatal to the case of the Complainant and the Complainant could also file additional
list and examine more witnesses as contemplated under Sub-section (2) of Section 254 of the Code and in
support of the said submission, Shri Sardessai has placed reliance on decisions of this Court in the case of
Shashi Nair v. R.C. Mehta and
Vashu Gokaldas Kukreja v. Meena Vashu Kukreja and Anr. 2004 Bom. C.R. (Cri) 734.
7. In Sanyogita Shivnath Nandedkar v. Suprabha Rajendra Junghare (supra), the complaint was dismissed by
the learned Sessions Judge, as it was not filed along with the list of witnesses. The Complainant having
approached the High Court, the High Court held that the approach of the learned Sessions Judge was legal and
correct and confirmed the view that since the complaint was not filed or prosecuted in conformity with
Section 202(2) of Cr. P.C., the complaint was liable to be dismissed.
8. In the case of Shashi Nair and R.C. Mehta (supra), this Court referred to State of Bombay v. Janardhan AIR
1960 Bom 513, wherein it was held that original list given under Section 204(1) could be added by further
names and witnesses so added could be examined. This Court also referred to S. Khan v. State , wherein it
was
held that Magistrate could issue summons to a witness whose name was not mentioned in the original list
under Section 204. This Court then referred to another decision of this Court in Madhaorao Pandurang v.
Yeshwant (Cr. Rev. Appl. No. 341/68 decided on 17-6-1969) and observed that the jurisdiction of the
Magistrate under Section 204(1) to issue summons or warrant in the first instance, cannot be taken away by
the failure on the part of the Complainant to file list of witnesses and that Section 204(1-A) (sic.) did not
control Section 244(1) or 244(2). Thereafter, this Court held that there is nothing in Section 244(1) or (2),
which restricts the power of the Magistrate to take evidence only of those witnesses whose names are not
mentioned in the list referred to in Section 204(1-A) and, therefore, the provisions regarding submission of a
list of witnesses in Section 204, cannot be considered as mandatory so as to control the jurisdiction of the
Magistrate to proceed with the trial of the accused and record his plea. The Court held that the provisions of
Section 204 of the Criminal Procedure Code were not mandatory in nature and if before the list of witnesses is
filed, the Magistrate issues a summons to the accused after he is satisfied that there is sufficient ground for
proceeding against the accused, he does not act without jurisdiction and further proceedings after the
appearance of the accused are not invalid. Unless clear prejudice is shown to have been caused to the accused
by a late submission of the list of prosecution witnesses, the order issuing a summons to him cannot be said to
be vitiated. The Court also held that the provisions of Section 204 were directory and it is the duly of the
Magistrate to secure compliance with the requirement of Section 204(1-A), at the earliest possible stage of the
proceedings to avoid any prejudice to the accused if for some reasons he did not insist on the list of witnesses
to be filed along with the complaint.
9. In the case of Vashu Gokaldas Kukreja v. Meena Vashu Kukreja and Anr. (supra), an application for recall
of process was filed on the ground that before process was issued, the list of witnesses was not submitted and
it was held that the defect could not be the reason to recall the process more so when the list of witnesses
proposed to be examined was already submitted along with the application as on the date when the application
presumably to recall the process was decided and it was held that the view taken by the Court did not, in any
way, cause prejudice to the accused but was a step forward in ensuring that miscarriage of justice would not
occur.
10. In the case at hand the accused did not at all challenge the Order issuing process dated 16-1-2001 for a
long period on the ground that the issue of process was vitiated on account of non filing of the list of
witnesses and although the accused had filed a Revision Application, before the Court of Sessions, the
accused did not take up that plea before the Sessions Court. It is obvious that no prejudice was caused to the
accused. It would be rather too late in the day now to challenge the said Order issuing process on the ground that Sub-section (2) of Section 204 of the Code was not complied with. The only question before the Court is
whether because the Complainant had not filed the list of witnesses, as contemplated by Sub-section (2) of
Section 204 of the Code, that the Complainant is precluded from examining other witnesses. Shri Vahidulla,
the learned Counsel on behalf of the accused submits that issuing summons to any witnesses, as contemplated
by Sub-section (2) of Section 254 of the Code would mean issuing summons only to the witnesses whose list
was filed by the Complainant. In my view, such a submission cannot be accepted.
11. Section 254 of the Code is found in the Chapter dealing with trial of summons cases by a Magistrate and
Sub-section [1) thereof provides that if the Magistrate does not convict the accused under Section 252 or
Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces
in his defence. Sub-section (2) of Section 254 of the Code provides that the Magistrate, may, if he thinks fit,
on the application of the prosecution or the accused, issue a summons to any witness directing him to attend
or to produce any document or other thing. (Emphasis supplied).
12. Section 254(1) of the Code give ample discretion to a J.M.F.C., to take 'all such evidence as may be
produced in support of the prosecution and not only that it also gives discretion to a J.M.F.C. to issue
summons to any witness directing him to atted' and to give his evidence. In case, the provisions of Section 254
were subject to the compliance of the provisions of Section 204(2), then Section 254 of the Code, which
comes later, would have expressly provided so. In my view, in order to exercise the powers under Section
254(1), it is not a condition precedent that a list of witnesses had to be filed under Section 204(2) of the Code.
Likewise, Section 254 also does not contemplate that the witnesses to be examined would be only those
witnesses who were cited on behalf of the Complainant, earlier in the list filed, in terms of Sub-section (2) of
Section 204 of the Code. There is no doubt that Sub-section (2) of Section 204 of the Code is meant to
safeguard the interest of the accused persons against undue harassment at the hands of unscrupulous litigants.
The insistence on filing a list of prosecution witnesses before the issue of process to the accused is mainly for
that purpose. In other words, the intention is to assure that no person is summoned to stand his trial without
the Court first satisfying itself that there is sufficient ground to issue a summons or a warrant, as the case may
be, against accused persons and about the witnesses to be produced in support of the case of the Complainant.
In a proper case, the Complainant would be entitled to file even an additional list of witnesses. There is
nothing in Section 204 of the Code, which says or indicates that if no list of prosecution witnesses is filed
before process is issued to the accused, then none can be filed later. This does not mean that the salutary
provision in Sub-section (2) of Section 204 of the Code can be vitiated with impunity. In this context,
reference could also be made to page 2396 of Sohoni's Code of Criminal Procedure, wherein it is stated that
the provisions of Sub-section (2) of Section 204 of the Code can be vitiated with impunity. In this context,
reference could also be made to page 2396 of Sohoni's Code of Criminal Procedure, wherein it is stated that
the provisions of Sub-section (2) of Section 204 of the Code does not mean and imply that in no
circumstances can a person who is not included in a list be permitted to be examined in the course of the trial.
If that was the real intention, one would expect a clearer and firmer expression of the view of the Legislature,
then what is to be found in Sub-section (2). Moreover, if this extreme contention was to prevail, it. would
have the effect of abolishing Section 254(1) of the Code. This Section does not say that the evidence must be
evidence of only those persons whose names appear in the list of witnesses filed under Section 204(2) of the
Code. Sub-section (2) of Section 204 of the Code does not override Section 254(1) of the Code which imposes
a duty on the Magistrate to take evidence as may be produced in support of the prosecution. In my view,
although the learned J.M.F.C. has cited a wrong provisions of law by referring to Section 311 of the Code, as
the power enabling her to permit the Complainant to lead evidence of the said witness, whose name was not
cited, the power to examine other witnesses could be traced to Section 254(1) of the Code and viewed thus,
the Order of the learned J.M.F.C., dated 16-12-04, could not be faulted. The controversy appears to have been
settled with the decisions of this Court in Madharao Pandurang (supra), which was followed in Shashi Nair
(supra), which have my respectful concurrence, for other reasons as well stated hereinabove.

13. Shri Sardessai, the learned Counsel on behalf of the Complainant assures that in case more witnesses are
required to be examined, then the complainant would certainly file a list of witnesses to be examined on
behalf of the Complainant. In case such a list is filed, the learned Magistrate would be at liberty to deal with
the same in accordance with law.
14. In the light of the above, I find there is no merit in this petition and consequently the same is hereby
dismissed with costs. Both the parties are hereby directed to appear before the learned J.M.F.C. Bicholom, on
2^nd May, 2006, at 10.00 am. for further proceedings.

Guest (Expert) 09 July 2012
Dear A A Siddiq,

No. It is correct. Hereunder is the Judgment delivered by Apex Court in regard to Sec 91 Cr P C.

Supreme Court of India
Sethuraman vs Rajamanickam on 18 March, 2009
Author: V Sirpurkar
Bench: Tarun Chatterjee, V.S. Sirpurkar

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.486-487 OF 2009

(Arising out of SLP (Crl.) No. 2688-89 of 2005) Sethuraman .... Appellant Versus

Rajamanickam .... Respondent JUDGMENT

V.S. SIRPURKAR, J.

1. Leave granted.

2. In these appeals, the common order passed by the Learned Single Judge of the Madras High Court in three Criminal Revisions, is in challenge. By the instant order, the Learned Single Judge set aside the three orders passed by the Trial Court dated 26.7.2004 in Crl.M.P. No. 3057 of 2004 in C.C. No. 216 of 2003 and dated 1.4.2004 in Crl.M.P. Nos. 4184 and 4185 of 2004 in C.C. No. 215 of 2003, and allowed those Crl.M.Ps. Shortly stated, the appellant herein had filed a criminal complaint 2

under Section 200 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C.' for short), complaining therein that a cheque signed by the respondent and given for returning the amount of Rs.2 lakhs, which was a loan, was bounced and inspite of the notice given thereafter, the accused (respondent herein) had failed to return the money. A Trial ensued on the basis of this complaint and the complainant (appellant herein) was examined as a first witness for the prosecution on 24.8.2004. He was cross-examined also. On 20.9.2004, the respondent herein filed applications under Section 91 Cr.P.C. and Section 311 Cr.P.C., seeking directions to produce the Bank Pass Books, Income Tax Accounts and the L.D.S. deposit receipts of the appellant, as also for recalling him for cross- examination. This was objected to by a Reply dated 24.9.2004. The Court passed an order on 1.10.2004, rejecting the applications made by the respondent/accused. The respondent/accused filed Criminal Revisions before the High Court under Section 397 Cr.P.C. and the High Court, by the impugned common order, proceeded to allow the same. It is this order, which has fallen for consideration before us in these appeals.

3. Very strangely, the High Court did not even issue notice to the appellant/complainant, on the spacious ground that the production of the documents, which was sought for by the accused, would cause no prejudice to the appellant/complainant. We fail to understand this logic. After all, if the documents in possession of the appellant/complainant, which were his personal documents, sought for by the accused and the 3

production of which was rejected by the Trial Court, and which were ordered to be produced by the High Court, at least a hearing should have been given to the appellant/complainant. He could have shown, firstly, that no such documents existed or that there was no basis for the production of those documents, particularly, in view of the fact that he was not even cross-examined in respect of those documents. On this ground, the order of the High Court would have to be set aside.

4. Secondly, what was not realized was that the order passed by the Trial Court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C. The Trial Court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent/accused and the only defence that was raised, was that his signed cheques were lost and that the appellant/complainant had falsely used one such cheque. The Trial Court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders, i.e., one on the application under Section 91 Cr.P.C. for production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional 4

jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed. .................................................J. [Tarun Chatterjee]

.................................................J. [V.S. Sirpurkar]

New Delhi

March 18, 2009