JAI NATH Vs. STATE OF U P

JUDGEMENT

(1.) This revision under sections 397/401 of the Code of Criminal Procedure, 1974, (for short the Code), has been filed against the order dated 16-12-1986 passed by the learned Magistrate taking cognizance and issuing process for the offence under sections 307/427, I.P.C. against the applicant. This order purports to have been passed under section 190 of the Code.

(2.) Sri D.S. Tiwari, learned counsel for the applicant strenuously urged that the offence under section 307, I.P.C. was exclusively triable by the Court of Sessions, hence in view of second proviso to section 202 of the Code unless the Magistrate directs the complainant to examine all the witnesses and all the witnesses have been examined, the order issuing process against the accused was erroneous. It was next urged that even though a protest petition was filed, but on that basis the cognizance cannot be taken nor process can be issued, unless the procedure provided in the second proviso to section 202 of the Code was followed. Reliance was placed on Chandrashekhar and others v. State of U.P., Ahibaran Singh v. State of U P. and others2, and Mumtaz and others v. State of U.P. and others3.

(3.) Learned counsel for the opposite parties, on the other hand, urged that the cognizance has been taken under section 191(b) of the Code and for taking cognizance under section 191(1)(b) it was not necessary to follow the procedure provided under section 202(2) (second proviso) of the Code as the procedure under section 202 can be followed only if the Magistrate postpones the issue of process, and in case he has issued process under some other provisions, the procedure under section 202 will not be followed.