DINESH CHAND SINHA Vs. RAHMATULLAH

JUDGEMENT

(1.) THIS case has come up before us for decision in the following circumstances.

(2.) OPPOSITE party no. 1 (Rahmatullah) filed a complaint against the applicant (Dinesh Chand Sinha) and five others under sections 147, 148, 323, 325 and 307 IPC in the Court of Special Judicial Magistrate, Jaunpur. In the complaint filed by him he gave out the names; of twelve witnesses whom he intended to examine in support of his case. The learned Magistrate examined opposite party no. 1 under section 200 CrPC and four persons, more, namely, Sheo Murat, Ambika, Aman Khan and Lala under section 202 CrPC. The learned Magistrate went through the evidence of these persons and summoned the applicant and his co-accused under sections 147, 323, 325 and 307 IPC. Admittedly, the offence under section 307 IPC is triable exclusively by the Court of Session. The applicant's case is that the Magistrate's order summoning him in the case was illegal and not in accordance with law and he, therefore, filed an application under section 482 CrPC for quashing the complaint filed against him. According to him, as the case against him was triable exclusively by the court of session, the Magistrate, in view of the proviso to section 202 (2) CrPC, could not have summoned him unless he had called upon the complainant to produce all his witnesses and those witnesses had been examined by him. The application under section 482 CrPC came up for hearing before brother P. S. Gupta, J. The learned counsel for the applicant cited three cases of this Court before him in support of his contention that the proviso to sub-section (2) of section 202 CrPC was mandatory and, therefore, any non-complaince of this proviso would render the order passed by the Magistrate summoning the applicant illegal. These three rulings are (1) Hari Bans Tewari v. Hari Shanker, 1977 ACrR 187, Babu Ram v. State of U.P., 1978 ACrR 126, Mohan Singh v. Uttam Singh, 1980 Prayag Nirnai Prakashika page 246 (wrongly mentioned in the referring order as Mahabir v. State, 1980 Prayag Nirnai Prakashika page 248).

(3.) SUB-sections (1) and (2) of section 202 CrPC read as follows : 202. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance ?r which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made- (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session ; or (b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath : Provided that if it appears to ths Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.