ABDUL KHADER Vs. MOHAMMED FAIZUDDIN

JUDGEMENT

(1.) In this petition, the petitioners who are accused in C.C. No. 53/82, on the file of the Chief Judicial Magistrate, Bidar, have sought to challenge the legality and correctness of the process issued against them and confirmed by the Sessions Judge in revision.

(2.) The case is instituted on a private complaint filed by the respondent alleging commission of the offences of criminal trespass and dacoity, punishable under Sections 447 & 395 IPC. The Learned Magistrate, after taking cognizance of the offences, proceeded to record the sworn statement of the complainant and three witnesses examined on his behalf as provided under Section 200 Cr.P.C. and thereafter he straight away directed to issue process against the accused, for the offences punishable under Sections 447 & 380 IPC. Aggrieved by the issue of process the petitioners approached the Sessions Judge in revision and the Sessions Judge having confirmed the same, they have come up with this petition.

(3.) The grievance of the petitioners is that the Magistrate has failed to comply with the provisions of law as contained in proviso to Sub-section (2) of Section 202 Cr.P.C. Not only he has failed to make any inquiry as provided thereunder, but had failed to call upon the complainant to produce all his witnesses and examine them on oath before issuing the process. Besides, although the allegations made in the complaint were in respect of offence of dacoity, which is exclusively triable by a Court of Sessions, the Magistrate has thought of issuing process against the accused, for the offences under Sections 447 & 380 IPC only. The procedure followed by the Magistrate in not complying with provisions of law is prejudicial to the case of the accused and therefore the orders passed by the Magistrate directing issue of process against them and confirmed by the Sessions Judge deserve to be set aside.