SATYA NARAIN DUBEY Vs. SHANTI DEVI

JUDGEMENT

(1.) The Magistrate concerned took cognizance of an offence under Sections 306/344/323 of the Indian Penal Code and issued summons to the applicants. The legality of the said order passed by the Magistrate is being questioned in the instant application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code).

(2.) A first information report was lodged by Smt. Shanti Devi, the opposite party No. 1, stating therein, inter alia that the applicants had committed an offence punishable under the aforesaid provisions of the Indian Penal Code. The police investigation followed, and a final report was submitted to the Magistrate concerned. Before the same could be accepted, Smt. Shanti Devi, opposite party No. 1, presented a protest petition. This petition was accepted and-the learned Magistrate after rejecting the final report submitted by the police took cognizance of the offence and summoned the applicants. In his order the Magistrate observed that after looking into the papers filed by the opposite party No. 1 and the statements of the witnesses as found in the case diary he was satisfied that a prima facie case had been made out against the applicants.

(3.) Learned counsel for the applicants has contended that the Magistrate acted illegally in passing an order summoning the applicants for more than one reasons. First, the Magistrate did not care even to record the statement of the complainant as required by the provisions of Section 200 of the Code. Secondly, the Magistrate observed the provisions of the 1st proviso to Section 202 of the Code in their breach in not calling upon the opposite party No. 1 to produce all her witnesses and examine them on oath. This was necessary as the offence under Section 306 of the Indian Penal Code was exclusively triable by the Court of Sessions. Obviously, the submission is founded on the premise that the learned Magistrate took cognizance of the offence under Section 190 (1)(a) of the Code.