BHARAT DAYANAND RASKAR Vs. INSPECTOR

JUDGEMENT

(1.) The submissions of the learned counsel appearing for the parties were heard on the last date. With a view to appreciate submissions, it will be necessary to refer to the facts of the case in brief. The applicant in this application filed a private complaint before the learned Magistrate alleging commission of offences under section 307, 440, 201, 144, 146, 120-A and 34 of the Indian Penal Code. An order was passed on 13th April 2007 by the learned Magistrate directing the Senior Police Inspector of Taloja police station to investigate the matter under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). On the basis of the said order, F.I.R was registered by the concerned police officer. After carrying out investigation a report was submitted by the concerned officer recording an opinion that no case of commission of offence was made out. On 24th April 2008 the learned Magistrate passed further order directing that the applicant complainant shall examine himself on oath under section 200 of the said Code and shall also examine his witnesses. The learned Judge observed that in view of section 201 of the said Code, offence under section 307 of the Indian Penal Code was exclusively triable by a Court of Sessions. The challenge by the applicant in this petition is to the aforesaid order dated 24th April 2008 by invoking power of this Court under section 482 of the said Code.

(2.) The submission of the learned counsel for the applicant is that the impugned order is contrary to section 209 of the said Code. He submitted that in view of amended section 209 of the said Code, once an offence under section 307 was alleged, it was the duty of the learned Magistrate to commit the case to the Court of Sessions. He submitted that on the basis of material produced by the police after holding investigation, the learned Judge ought to have committed the case to Court of Sessions and he had no jurisdiction to make any further inquiry or investigation in the matter. He has placed reliance on a decision of the Apex Court in the case of Raj Kishore Prasad Vs. State of Bihar & Anr (AIR 1996 SC 1931). Relying upon the said decision he submitted that when offence alleged is exclusively triable by a Court of Sessions, learned Magistrate has no jurisdiction to held an inquiry in to the question whether there was any material to proceed for an offence under section 307 of the Indian Penal Code. He submitted that the order of the learned Magistrate was illegal and it deserves to be set aside with a direction to the learned Judge to commit the case to the Court of Sessions.

(3.) The learned counsel appearing for the accused submitted that proviso to sub section 2 of section 202 of the said Code is mandatory and the learned Magistrate cannot issue process without the complainant examining himself and all his witnesses. He has placed reliance on the decision of this Court in the case of Shyamkant Wamanrao Pawar and others Vs. State of Maharashtra and others (1980 Cri.L.J. 1388). He also invited my attention to the decision of the Apex Court in the case of Rozy and another Vs. State of Kerala and others [(2000) 2 Supreme Court Cases 230].