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Rejecting a criminal revision petition challenging an order based on evidence of a solitary witness, the Allahabad High Court recently clarified that there is no need to examine all the prosecution witnesses in terms of Section 202(2) Cr.PC.

The revision petition had been filed challenging an earlier order on the ground that it was passed only on the evidence of a solitary witness out of a total of nine.

Deciding the matter the bench of Justice Vivek Agarwal held,

“There is no need to examine all the witnesses in terms of the Proviso below Sub-Section 2 of Section 202 Cr.P.C., if a case is triable by sessions court especially having regard to the import and meaning of word 'His' used in the proviso.”

The court stated that the issue being already settled by several pronouncements of Allahabad and other High Courts, therefore, had to be answered accordingly.

The present revision petition challenged the earlier order on the basis that in the matter, cognizance had been taken badis the evidence of a single witness, whereas fact of the matter was that there were as many as nine witnesses.

The revisionist had contended that they all should have been examined in terms of the Proviso below Sub-Section 2 of Section 202 Cr.P.C.

Dealing with the issue at hand, the court referred to several pronouncements including Kishor Singh & Etc. vs. Sudama Prasad & Others, 2002, wherein it was held that it is not mandatory for the complainant to examine all the witnesses named in the complaint, and that he has choice in the matter.

On the question of the usage of the words "All his witnesses" under the proviso to Section 202(2) Cr.PC, the court also referred to Satyadeo Pandey & Others vs. State of U.P. & Another, 1987 , wherein it had been held that the meaning of words "All his witnesses" is to be understood in light of the fact that the word 'His' is an adjective according to grammar, qualifying the word 'Witnesses'.

In Satyadeo Pandey, it was also held that the words "All his witnesses" under the proviso to Section 202(2) Cr.PC does not refer literally to all the prosecution witnesses in number, rather to all complainant’s witnesses whom he considers material to prove his case.

“The words "All his witnesses" connotes all the witnesses of the complainant associated or connected with his interest and those witnesses who are material and relevant to prove the prosecution case,” it had held.

Thus, stating that the legal position is well settled as has been laid down in the case of Satyadev Pandey (Supra), Dudh Nath Mishra vs. State of U.P., 2003, Chhotey Lal s/o Parmanand vs. State of U.P. & Smt. Rati Basor w/o Hasmukh Basoi, 2006 by the Allahabad High Court and also in case of Abdul Hamidkhan Pathan & Others vs. State of Gujarat & Others, 1989 by the Gujarat High Court, the court dismissed the present revision petition.

To be noted, proviso to Section 202(2) Cr.PC  provides that if it appears to the Magistrate that the offence complained of, is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

Case Title: Brij Pal v. State of U.P. and Another.

Access Copy of Judgment Here