VIJENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) R. A. Misra, J. This petition under Section 482, Cr. P. C. arises out of the order dated 24-5-86 passed by Sri Ashwani Kumar, II Additional Munsif, Magistrate, Hardoi taking cognizance against the petitioner under Sections 147/148, 439/149, I. P. C. on a complaint filed by Ram Pal Singh.

(2.) THE facts which have given rise to the petition are briefly stated as below : Ram Pal Singh lodged a F. I. R. against the petitioner which was duly investigated and a final report was submitted by the Investigating Officer. THE Magistrate accepted the final report. THE complainant thereafter filed another complaint and the learned Magistrate after examining same witnesses produced by the complainant took cognizance against the petitioner as mentioned above, by the complaint took cognizance against the petitioner as mentioned above. THE main grievance of the petitioner is that the learned Magistrate has not followed the mandatory provisions of the proviso added to sub-clause (2) to Section 202, Cr. P. C. inasmuch as the Magistrate has not examined ail the wit nesses of the complainant. THE complainant has named three eye-witnesses in paragraph 3 of his complaint namely, Drig Pal Singh, Chotey Lal and Shishu Pal Singh. Out of these witnesses named in the complaint, he has admittedly failed to produce Chhotey Lal and Shishu Pal Singh. It is, thus, obvious that the Magistrate has failed to examine all the witnesses and the complainant has also failed to produce all his witnesses before the Magistrate. THE proviso added Sub-clause (2) to Section 202, Cr. P. C. clearly lays down that if it appears to the Magistrate the it the offence complained of is triable exclusively by Court of Session he shall call upon the complainant to produce all his witnesses and examine them on oath. It leaves no room for doubt the present case is exclusi vely triable by the Court of Session, and so the aforesaid proviso is fully attracted to the instant case. It is abundently clear that the complainant has failed to produce all his witnesses and Magistrate has, therefore, failed to examine all his witnesses on oath. So the provisions of the aforesaid provviso which are mandatory in nature have admittedly not been complied with and that makes the order passed by the Court below taking cognizance, illegal in the face of the non-complaince of the proviso. THE petition shall, there fore, be allowed and the order dated 24-3-85 passed by the courts below taking cognizance on the complaint, shall be set aside but setting aside of the illegal order passed under the circumstances narrated above, would not bar further proceedings in the complaint from the stage at which the aforesaid order was passed.