KISHOR SINGH AND Vs. SUDAMA PRASAD

JUDGEMENT

(1.) By this common order Criminal Revision 105/99 and Criminal Revision 123/99, are being disposed of as the two arise out of a common order dated 30-3-1999 passed by Judicial Magistrate First Class, Guna in Criminal Case No. 161/99 and a common question of law is involved therein. By the impugned order, learned Magistrate, having taken cognizance of the offence against the petitioners on a private complaint filed by respondent No. 1 has issued process under Section 204 of Criminal Procedure Code. The order impugned has been challenged on the ground that because of non-compliance with proviso to sub-section (2) of Section 202 of the Code of Criminal Procedure, it is vitiated.

(2.) It is not disputed before me that the learned Magistrate took cognizance of the offence which was exclusively triable by the Court of Session . He, while holding inquiry under Section 202 of the Code of Criminal Procedure took cognizance of the offence and issued processes without examining four witnesses included in the list submitted by the complainant along with the complaint. Two witnesses out of the aforesaid four, where police officers required to appear along with police case-diary. However, Police Station Officer Mr. Hemant Tiwari appeared along with case diary and was examined. However, witnesses at Serial Nos. 6 and 7, who were private persons, were not produced by the complainant and therefore, could not be examined by the learned Magistrate.

(3.) The short legal point raised by the petitioners is that proceedings before the Magistrate are vitiated and rendered illegal for non-compliance with proviso to sub-section (2) of Section 202 of the Criminal Procedure Code in asmuch as that the learned Magistrate failed to examine all the witnesses before iussing process under Section 204 of the Criminal Procedure Code (hereinafter referred to as Code). It was argued on behalf of the petitioners that under proviso to sub-section (2) of Section 202 of the Code, requirement to examine all the witnesses before issuing process was mandatory and failure on the part of the learned Magistrate to examine all the witnesses vitiated the proceedings as he was not competent to take cognizance of the offence and to issue process without complying with the mandatory provision. Reliance was placed on the decision in the case of Vinod Kumar Shivhare v. Tarachand (Misc. Cri. Case No. 102/99) (Since reported in 2001 Cri LJ 2970) (unreported) by the learned single Judge of this Court and Baji v. State of M.P., reported in 1981 Jab LJ 684 : (1981 Cri LJ 1558) , Rosy v. State of Kerala reported in 2000 Cri LJ 930 : (AIR 2000 SC 637), in support of their contention. Learned counsel appearing for the respondents rebutting the arguments submitted that the contention put forth on behalf of the petitioners was misconceived. Placing reliance on the decision of Rosy v. State of Kerala (supra), learned counsel for the respondents contended that it squarely answers the issue raised on behalf of the petitioners.