MUIVINARASAIAH Vs. T C ANJANAPPA

JUDGEMENT

(1.) The only point urged on behalf of the petitioner is that since the offence complained of is under Section 395, IPC which is an offence triable exclusively by the Court of Sessions under the provisions of Section 395 (2), IPC it is mandatory for the Court taking cognizance to examine the complainant and all the witnesses on oath. From the record, petitioner's learned Advocate demonstrates that this has not been done and he therefore contends that the taking of cognizance is faulty. The respondent's learned Advocate submitted that if one were to look at Section 202 in its entirity as also several of the reported decisions, the position that emerges is that the discretion is left to the trial Court to record the substances of the charge for purposes of deciding on the question of issue of process. Basically what is contended is that this is not the stage where the trial has commenced and therefore if the complainant was examined and the Court came to the conclusion that an offence has been disclosed that it is sufficient compliance with the Section.

(2.) Section 202, Cr.P.C. makes a special distinction as far as offences triable exclusively by the Court of Sessions is concerned since these are more serious offences and since the Magistrate will have to commit the proceedings to the Court of Sessions. As far as cases instituted on a charge-sheet are concerned, it is obligatory for the Court to examine the totality of the evidence. In order to bring the position on par, the law prescribes that even in the case of a private complaint the Court shall have the benefit of looking at all the evidence. This discretion is therefore not left to the trial Court nor can the examination of the witnesses be dispensed with.

(3.) To my mind the infringement is only of a technical nature but it would however affect the validity of the order passed. The impugned order is accordingly quashed and the trial Court is directed to examine the witnesses and to thereafter pass fresh orders in the case if the facts and circumstances warrant.