A GANESH Vs. A GAYATRI

JUDGEMENT

(1.) The 1st petitioner is the husband of the 1st respondent, who is complainant in PRC No. 20 of 1993 on the file of the Judicial Magistrate of First Class, Punganur. She filed a complaint before the learned Magistrate alleging that the petitioners have abused in language and assaulted her and her parents. The learned Magistrate referred the complaint for investigation under Sec. 156 (3) of Code of Criminal Procedure (for short, the Code') to the police. The police after due investigation found the case as false and submitted a report under Section 173 of the Code, on 30-12-1992. It is stated that the report has been accepted by the learned Magistrate and the proceedings were dropped. Thereafter, the 1st respondent filed another complaint before the learned Magistrate and the learned Magistrate after examining her and her mother as P. Ws. 1 and 2, has taken cognizance of the offences under Sections 447,354 and 323, IPC read with Sections 109 and 34, IPC, against all the petitioners. The case was numbered as PRC No. 20 of 1993, as the offence under Section 354, IPC is triable exclusively by the Court of Sessions. The petitioners filed the petition under Section 482 of the Code for quashing the proceedings in PRC No. 20 of 1993.

(2.) The learned Counsel for the petitioners has contended that the magistrate having accepted the report of the Police and dropping the proceedings, committed a serious error in entertaining another complaint on the same facts by the same complainant and taking cognizance of the offence. He cited the decision in P.V. Krishna Prasad vs. K.V.N. Koteswara Rao in support of his contention. In this case the learned Judge held

(3.) The next contention, urged by the Counsel for the petitioners is that all the witnesses cited in the complaint have not been examined by the learned Magistrate before taking cognizance of the offence as required under Section 202 of the Code. In support of his contention he relied upon a Bench decision of this Court in Ramachender Rao vs. Boina Ramchander. This decision undoubtedly supports his contention. The learned Judges in the case set aside the proceedings taken by the magistrate on the ground that all the witnesses shown in the complaint have not been examined, before taking cognizance of the offence and directed the Magistrate to examine the remaining witnesses of the complainant. In this case two witnesses have been cited by the complainant i.e., theparents of the complainant. The complainant and her mother have been examined and the offence has been take cognizance of. The other witness i.e., the father of the complainant has not been examined. The Counsel for the respondent is not disputing this position. He fairly conceded that the matter has to be sent back to the learned Magistrate inview of the decision of this Court (3 supra). In this view, the proceedings in PRC No. 20 of 1993 on the file of the Judl. Magistrate of First Class, Pungunur, are liable to be quashed.