MUKHIDEVI Vs. STATE OF M P

JUDGEMENT

(1.) This revision is preferred by the petitioner/complainant under Sections 397 & 401 Cr.P.C against the order dated 09/08/2012 passed by I Additional Sessions Judge, Bhind in Criminal Revision No.182/2012, reversing the order dated 22/02/2012 passed by the JMFC, Bhind in Criminal Case No.240/2012 whereby cognizance under Section 302/34 of IPC has been taken against the accused persons and remitted the case to the JMFC to pass an appropriate order after recording the evidence of the remaining witnesses cited in the list of witnesses.

(2.) The brief facts of the case are that the petitioner/complainant has filed a private complaint against eight accused persons alleging that they have killed her husband, Jitendra and alongwith complaint, list of witnesses containing eight names was also submitted. Learned Magistrate recorded the statements of the five material witnesses cited in the list of witnesses under Sections 200 and 202 of Cr.P.C. After closing the evidence by the complainant, arguments heard. Vide order dated 22/02/2012, the learned Magistrate found that a prima facie case is made out and taken cognizance under Section 204 of Cr.P.C., against the accused persons for the offence punishable under Sections 302/34 of IPC and directed to issue notice against them for their appearance before it on 29.03.2012. Being aggrieved by the aforesaid order the accused/Dasharath Yadav preferred a revision petition. The revisional Court vide order dated 09/08/2012 set aside the order dated 22/02/2012 passed by the JMFC under Section 204 of Cr.P.C and remitted the matter back on the ground that the evidence of three other witnesses, namely, Dr. U.P.S. Kushwaha, Head Constable S.C. Vishvanath Upadhya and ASI B.L. Tyagi whose names were mentioned in the list of witnesses had not been recorded as required under proviso to Section 202(2) of Cr.P.C. Against which, this petition is preferred by the petitioner/complainant.

(3.) The mute question for consideration in this case is that in the light of proviso to Section 202(2) of Cr.P.C the examination of all the witnesses cited in the list of witnesses filed alongwith complaint is mandatory before taking cognizance ?