SATYADEO PANDEY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a criminal revision under sections 397/401 of the Code of Criminal Procedure 1973 (for short the Code) filed against the order dated 5th January, 1987 passed by the I Additional Munsif-Magistrate, Mirzapur to quash the order summoning the accused for the offences under sections 147, 148, 436, 323, 429, 504 and 506(2) I.P.C. by issuing a non-bailable warrant. 2. The facts of the case lie in a narrow compass and they are these. Against the applicants a first information report was lodged disclosing the offence under the aforesaid sections. But according to the complainant, the opposite party No. 2, the police did not record the first information report and at the instance of the Superintendent of Police, Mirzapur in the Police Station Kotwali Dehar, the report was entered and the injured persons were examined. But the local police did not take interest and ultimately final report was submitted. Consequently the complaint was filed by opposite party No. 2 against the applicant making allegations about the offence under the aforesaid sections. As many as eleven prosecution witnesses were examined in accordance with the list of the witnesses given by the complainant and the applicants have been summoned by the impugned order dated 5th January, 1987 passed by the I Additional Munsif Magistrate, Mirzapur in view of the procedure provided under section 204 of the Code as there appeared to be sufficient grounds for proceeding against the applicants. It is against this order that the present revision bas been filed.

(2.) I have heard Shri N.K. Roy, the learned counsel for the applicants, who strenuously urged that as the police investigation was proceeding, hence the learned Magistrate must have stayed the proceedings of inquiry in view of section 210(1) of the Code and further that as offence under section 436 I.P.C. was exclusively triable by the Court of Session, hence all the witnesses must have been examined in view of the second proviso to sub-section (2) of section 202 of the Code. As the same was not done, the procedure adopted was illegal and the order deserves to be quashed. Reliance was placed on. (1984 AlId. Cr1. Cases 359)1, Ram Adhar and another v. State2 and Babu Ram and another v. State of Uttar Pradesh3.

(3.) Having heard the submissions made by the learned counsel for the applicants I am of the view that there are no merits in this revision. As regards the first point that the learned Magistrate must have stayed the proceedings of such inquiry as the police investigation was also pending as envisaged by Section 210 of the Code suffice it to say that the learned Magistrate appeared to be conscious about the provisions aforesaid and he has recorded a finding that the police has submitted a final report in the matter. Consequently there was no sense in staying the proceedings before the learned Magistrate. Adverting to the second point much emphasize was laid on the second proviso to section 202 of the Code which is set out below: Provided that if it appears to the 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.