A. Pasayat, J.@mdashAlleging Police brutality, the petitioner filed a complaint praying for taking action against the opposite party Nos. 2 and 3, who were at the relevant point of time functioning as officials of Bhadrak Police Station, before the learned Subdivisional Judicial Magistrate, Bhadrak (in short, ''SDJM''). The allegations were that on account of brutality of the opposite party Nos. 2 and 3 one S.k. Mairaj, brother of the petitioner lost his life, and therefore offences punishable u/s 302 302/149 302/34 and 379/34 of the Indian Penal Code, 1860 (in short, ''IPC'') were made out against them. Allegedly opposite party Nos. 2 and 3 carried the deceased in a van and administered severe blows on 30-3-1991, and subsequently his dead body was handed over to his relations on 31-3-1991 in the afternoon and direction was given to finish the funeral early. Thirty-three witnesses were named in the complaint petition stating that their evidence would establish the complainant''s case. Out of them twelve were examined as prosecution witnesses. Though one was examined as Court-witness, he was described as P. W. 13 . By the impugned order dated 22-5-1991 In ICC Case No. 138 of 1991 the learned SDJM refused to take cognizance.
2. The stand of the petitioner in support of the revision application is as follows :
(a) Since the offences were exclusively triable by the Court of Session, all the witnesses named should have been examined. Reference in this context is made to proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure, 1973 (in short, ''Cr PC''.)
(b) One witness was examined though he was not named by the complainant, and in fact he should not have been treated as prosecution witness because the Court directed his examination. In any event the petitioner was not granted any opportunity to cross-examine the said witness, though his evidence was considered by the learned SDJM to draw adverse inference against the petitioner.
(c) Evidence of two witnesses (examined as P.Ws. 9 and 12) should not have been considered,
(d) The Court at the stage of considering whether cognisance is to be taken or not should not make an elaborate analysis, and should only see whether prima facie case exists.
(e) The conclusion that the sanction as stipulated in Section 197, Cr PC was required in the case at hand is not tenable in law.
The learned counsel for State as well as accused-opposite parties supported the order passed by the learned SDJM.
3. I shall first deal with the question whether all the witnesses are to be examined. There cannot be any hard and fast rule in that regard. The complainant who has named some witnesses in the complaint petition may not choose to examine them, if he finds that their examination may be adverse to his interest, as they may have been gained over. The expression "all his witnesses" should be construed to mean all the witnesses, whom the complainant chooses to examine. In a given case the complainant after having submitted his list of witnesses may indicate to the Court that he does not want to examine some witnesses.
Proviso to Sub-section (2) of Section 202 is not of such a mandatory nature that non-compliance will vitiate the jurisdiction of the Magistrate taking cognizance. If the complainant gives up some witnesses, then the witnesses left are not "his witnesses". Only those on whom the complainant relies need be examined. The complainant is free to examine those witnesses who are of his choice.
He cannot be compelled to examine a person, whom he knows is going to depose against him, or, is going to suppress the truth. However, he has to make it clear to the Court that ha does not want to examine some particular persons, though named as witnesses in the complaint petition.
4. In the case at hand I find that though thirty-three witnesses were named by the complainant in the complaint petition, he had filed a memorandum on 7-5-1991 to the effect that he did not want to examine witnesses excepting the witnesses already examined in the case. Therefore, the submission that all the witnesses should have been examined merits no consideration. After having filed a memorandum that he did not want to examine any further witness, it is unfortunate that a grievance is made that the learned SDJM did not examine other named witnesses. This conduct of the petitioner deserves condemnation, which 1 do. This shows his playing hide and seek with justice, since at one time he prayed the Court not to examine any further witness and then makes a grievance that all the witnesses have not been examined. No objection was raised regarding examination of P.Ws. 9 and 12. It appears that on 30-4-1991 and 2-5-1931, petitioner prayed for examination of Dr. Bansidhar Sahu and Dr. Surath Kumar Biswal. They have been examined as P.Ws 9 and 12 respectively. The grievance that they were examined notwithstanding objection of petitioner is utterly fallacious. I express my displeasure over the unfounded and deprecable stand of the petitioner.
5. Further question is the limits within which the Magistrate has to act while considering the question whether cognizance is to be taken or not. Taking cognizance means applying mind of the Judge or Magistrate to the facts constituting the offence for the purpose of initiating judicial proceedings against the offender or taking steps to see whether there is any basis for initiating judicial proceedings. Taking cognizance is a mental as well as a judicial act. It ordinarily means that the Magistrate has come to the conclusion that there is a case to be enquired into. On receiving a complaint, the Magistrate may come to the conclusion that there is no ground for proceeding with the case, and in such case, the complaint is to be dismissed u/s 203. If he finds that there is a case for proceeding with the complaint, he takes cognizance u/s 190. But if, he is unable to come to either of these conclusions, he may either order an enquiry u/s 202 or an investigation u/s 156(3). The word "cognizance" is defined in Wharton''s Law Lexicon, 14th Edition, as "the hearing of a thing judicially". The word "cognizance" is used in the Code of Criminal Procedure to indicate the point when a Magistrate or a Judge first takes judicial notice of an offence. It is different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of offences, not of persons and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case even where the offenders are unknown. Section 200 provides that a Magistrate taking cognizance of the offence shall at once examine the complainant. The words "taking cognizance" do not mean "after taking cognizance" but connote "in the course of taking cognizance''''. The words "at once" which appeared in the Code of Criminal Procedure, 1898 (in short, the ''old Code'') has been drop ed in Section 190. Cr PC. "Cognizance'''' and "commencement of proceedings" are not synonymous in their connotation. Cognizance is something prior to and does not necessarily mean, the commencement of the judicial proceedings against any one. Proceedings commence only when the accused person is made a party before the Court. The different clauses of Section 190 under which cognizance can be taken are alternative and not mutually exclusive. That being so, when a Magistrate has before him a complaint and a police challan about certain offences on some allegations of facts, he can take cognizance on both. There may be a case where a Magistrate may have before him a complaint or protest petition and also a police report and the police may have after conducting the investigation opined that no offence was made out. The Magistrate may decline to accept the police report and yet on the basis of the materials contained in the report or forming part of the report, take cognizance of the offence. In such a situation the Magistrate will take cognizance of the offence u/s 190(1)(b) of the Code. The Magistrate may reject the police report and take cognizance of the offence on the facts mentioned in the complaint or the protest petition. Such an action will be taken by the Magistrate u/s 190(1) of the Code of Criminal Procedure. The expression to take cognizance" has not been defined in the Cr PC nor dose the Cr PC prescribe any special form of taking cognizance. The word "cognizance" is, however, used in the Code to indicate the point when the Magistrate takes judicial notice of an offence. It is a word of indefinite import, and is perhaps not always used in exactly the same sense, In its broad and literal sense it means "taking notice of an offence" and would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. At the stage of taking cognisance, the Magistrate has simply to be satisfied whether the allegations against the accused prima facie make out a case for trial or not and nothing beyond that.
6. At this juncture it is necessary to find out whether the action of the learned SDJM by examining one witness in purported exercise of power u/s 311, Cr PC is correct. From the order dated 7-5-1991, it appears that Dr. Surath Kumar Biswal had stated that the original post mortem examination report and the bed head ticket of S.k. Mairaj were seized by police. The learned SDJM felt that he should go through those documents before passing any final order. That is how summons was issued to the Officer-in-charge, Bhadrak Town Police Station u/s 311, Cr PC to produce the aforementioned documents and state as to why those documents were seized by the Police. On 9-5-1991, the Inspector-in-charge, Bhadrak. Town P. S appeared with the original bed head ticket of S.k. Mairaj and the duplicate copy of the post mortem report. His statement was recorded u/s 202, Cr PC. From the records I find that he has been examined as P.W. 13 as Court witness.
7. Section 311 Cr PC reads as follows :
"311. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."
The Section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall''''. In consequences, the first part gives purely discretionary authority to the Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the afore- mentioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before the Court. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such is the examination of witnesses of its accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak to important relevant facts.
The object underlying Section 311, Cr PC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused, The section is a general section which applies to all proceedings, enquiries and trials under the Cr PC and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry-Sections 239, 185 and 311, Cr PC co-exist supplementing one another. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.
8. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation, it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case, It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60 64 and 91 of the Indian Evidence Act, 1872 (in short, ''Evidence Act'') are based on this rule. The Court is not empowered under the provisions of the Cr PC to compel either the prosecution or the defence to examine any particular witness or witnesses on other side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference The Court will often have to depend on interested allegations made by the parties, or on inconclusive inferences from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be the "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
9. The subject of the Section 311 is to put discretion not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provisions of Section 311. but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by o the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. That does not appear to have been done in this case though evidence of lnspector-incharge, Bhadrak P. S. was considered to be of consequence to hold against the complainant''s version, This is apparently wrong.
Further the said witness could not be examined as a prosecution witness as has been done. This may be a technical flaw.
10. The learned counsel for the accused states that opportunity should also be granted to the accused to cross-examine the witness. The submission in untenable. At the stage of cognizance the accused does not come to picture at all. There is no provision in the Cr PC under which the accused persons can be heard before cognizance is taken. As indicated above cognizance is taken of an offence and not of an accused. Same is taken in the absence of the accused and process is issued after taking cognizance. The words "take cognizance of any offence" are not to be construed as meaning "take cognizance of any offence". It is not a condition requisite for the initiation of proceedings in a criminal Court that there should necessarily be a person named as the offender. The Magistrates mentioned in Sub-section (1) of Section 190 are empowered to take cognizance of an offence whether or not the complaint before them charges any particular individual or individuals with having committed the offence. Once a Magistrate takes cognizance of an offence, he is competent to take the proceedings against the person who appears to be the offender. There is a clear distinction between taking cognizance of an offence and the prosecution of an offender for the offence and that distinction has to be kept in view. However, after the process is issued and accused has appeared, a statutory right of cross-examination is available to both the complainant and the accused in a case where Court directs examination of a person u/s 311. Such right is a very valuable one. Where a witness is called by the Court under this section, the complainant and the accused are entitled to cross-examine him, on the matters relevant to the inquiry and they are not restricted to the points on which he has been examined by the Court, and the parties have the same right even when an appellate Court calls a witness under the said section. It is wholly misleading to describe as cross-examination that which consists of certain questions being suggested by the defence to Court and those questions being put by the Court. A witness summoned and examined u/s 311, Cr PC is liable to be cross-examined by all parties to the proceedings in the manner as if he were a witness produced by a party to the proceedings. The provisions of Section 165, Evidence Act do not apply to the witness summoned and examined by the Court under the provisions of Section 311, Cr PC. Therefore, at this juncture accused does not have any right of cross-examination.
11. Additionally, I find that the learned SDJM has refused to take cognizance holding that Section 197 stands as a bar on the way of the complainant. The protection given u/s 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and are not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not toe a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, not it is possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. The aforesaid aspect does not appear to have been considered by the learned trial Magistrate. Since the matter is to be reconsidered by him, the same shall also be considered.
12. The learned S. D. J. M. shall afford opportunity to the complainant with regard to the evidence of Shri Kamalesh Chatterjee, who has been examined as a Court witness though purportedly described as PW 13. After the cross-examination is afforded, a fresh decision shall be taken by the learned SDJM. To avoid unnecessary delay, the petitioner is directed to appear before the learned SDJM, Bhadrak on 25-2-1994 so that a date can be fixed for the purpose of cross-examination.
The revision application is accordingly disposed of. Send back the records forthwith.
