M L GULATI Vs. J L BIRMANI

JUDGEMENT

(1.) The question for decision). on a reference by one of us, Anand, J, is, if a succeeding Magiustrate could issue process in a complaint of which cognizance had earlier been taken and the complainant and/or his preliminary evidence had been examined by his predecessor ?

(2.) The circumstances in which the question arose in the two petitions, in so far .as they are necessary for our present purpose, are set out in the referring order of July 10, 1984. The referring order considers at length the rival contentions, the scheme and the provisions of Sections 6, 16, 26, 35, 190, 192, 202 to 204 and 326 of the Code of Criminal Procedure and justifies an affirmative answer to the question, It also examines the two earlier decisions of this Court in Crl. Rev. 107173, decided by Rangarajan, J. as he then was, on May 22, 1973, and in Crl. M(M) 446178, decided by R. N. Aggarwal, J, on October 5, 1978, in both of which on identical question was answered in the negative, on the learned Judges, reading of the decision of the Supreme Court in the case of Mahato (1). The referring order further points out that in addition to the decision of the Supreme Court in the aforesaid case, Rangarajan, J, also dispelled the contention that the enabling provisions of Sections 350 and 559 of the "Id Code correspoding to Sections 326 and 35 respectively of the present Code, would Justify an affirmative answer to the question.

(3.) The arguments in support of rival contentions before us by and large, followed the pattern at the earlier stage, as reflected in the referring order.Learned Counsel for the parties, however, referred o cerain addiional decisions to reinforce their respective contentions.