DULLAH PAL Vs. BAHAR HUSAIN

JUDGEMENT

(1.) The present petition under S.482, Cr. P.C. is directed against the order dt. 19 -8 -1981 of the second Additional Sessions Judge in S. T. No. 133 of 1980. Heard counsel for the parties. It would appear that it was a cross case. The petitioner had also lodged F.I.R. and that F.I.R. related to offence exclusively triable by the Magistrate being under S. 323, I.P.C. but as the cross -case was pending before the Sessions Court the Magistrate committed the present case also to the Court of Session under the provision of S.323, Cr. P.C. The prosecution side in this case prayed for examining some more witnesses other than those examined in the trial but the Sessions Judge held that only such witnesses who were examined before the Magistrate under S.202, Cr. P.C. could be examined and no other witness not examined by the Magistrate already can be examined. I may quote S. 323 of the present Cr. P.C. 323. Procedure when after commencement of enquiry or trial Magistrate finds case should be committed -

(2.) THE crux is the interpretation of S. 202(2) proviso. The provision runs as follows:

(3.) IN the circumstances the application is allowed and the order of the Sessions Judge dt. 19 -8 -1981 is quashed and the prosecution would be free to examine all such witnesses who were named in the complaint or F.I.R. and not beyond that or list of witnesses already furnished before Magistrate. Petition allowed