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Friday, 4 December 2020

Magistrate needs to examine complainant, witnesses: HC

Saurabh Malik

Tribune News Service

Chandigarh, December 3

In a significant judgment on the issue of summoning an accused residing beyond a magistrate’s jurisdiction, the Punjab and Haryana High Court has made it clear that the judicial officer was required to examine not only the complainant, but also his witnesses, for taking a decision on the existence of sufficient grounds for proceeding against the person.

Justice Sanjay Kumar asserted there appeared to have been some ambiguity and lack of clarity on the exact scope and extent of the inquiry posited under Section 202 of the CrPC in so far as an accused living beyond the area of jurisdiction of the magistrate was concerned. But the issue stood settled in light of Supreme Court judgments in the matters of Vijay Dhanuka and Abhijit Pawar. “In terms of these two decisions, it is now clear that it would be sufficient if the magistrate, for the purpose of deciding whether or not there is sufficient ground for proceeding against the accused, examines not only the complainant but also his witnesses,” Justice Kumar said.

Section 202 deals with the summoning of an accused residing beyond the magistrate’s jurisdiction. In his detailed order, Justice Kumar added if the magistrate considered and applied his mind to the statements made by the witnesses in addition to the statement made by the complainant, apart from documentary evidence, if any, while coming to the conclusion on the existence of enough grounds to proceed against the accused, it would be a sufficient exercise on his part to pass muster under Section 202 of the CrPC.

Justice Kumar said there was no restriction placed upon the magistrate that he should not go by such statements, if already recorded under Section 200 of the CrPC while inquiring into the matter and applying his mind at the stage of Section 202.

“Application of mind on the part of the magistrate is what is made the sine qua non (essential condition) to fulfil the mandate of holding an inquiry under Section 202 CrPC and such application of mind must be manifest and apparent from the order issuing process,” Justice Kumar asserted.



from The Tribune https://ift.tt/33IW26G

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