MOHABBAT ALI Vs. STATE

JUDGEMENT

(1.) THIS is a revision against the order dated 20-9-1982 passed by the Vllth Addl. Munsif Magistrate Sultanpur.

(2.) MOHAMMAD Sharif filed a complaint under sections 395/397 IPC against the revisionists. A final report was submitted by the police. On receipt of protest application from the complainant the learned Magistrate summoned the accused persons to stand their trial under sections 395/397 IPC. Aggrieved by this order, the accused parsons have come up in revision.

(3.) IN Dinesh Chandra Sinha v. Rahmatullah, 1981 AWC 210 = 1981 ACrR 132 it was held that in view of the proviso to sub-section (2) of Sec. 202 CrPC the Magistrate is bound to examine all the witnesses who are to be produced on behalf of the complainant before summoning the accused in cases which are exclusively triable by the Court of Session. If, therefore, a Magistrate summons an accused in a case triable exclusively by the Court of Session without examining all the witnesses who are to be produced by the complainant the order summoning the accused would be illegal. The Magistrate can certainly summon the accused even after examining some of the witnesses mentioned in the complaint but the complainant has to make it clear that the witnesses examined on his behalf were the only witnesses on whom he intended to rely upon. If the complainant does not make his position clear then it is not open to the Magistrate to summon the accused without examining all the witnesses either mentioned in the complaint or in the list accompanying the complaint.