PAWAN SHARMA Vs. KAMLA BAI

JUDGEMENT

(1.) Heard finally at motion stage. Two legal questions are involved in this case:

(2.) That, whether in the present case, cognizance under Section 200 of Cr.P.C. has been taken by the learned Magistrate?

(3.) In the present case, as per the facts mentioned in the petition as well as in the copy of the complaint, it appears that about the incident happened on 16th March, 2007, one complaint has been filed by Smt. Kamla Bai, respondent No. 1, against the petitioners for the offences punishable under Sections 376, 354, 294 and 323 of IPC. It has been alleged in the complaint that the daughter of the complainant was beaten by the petitioners and thereafter they committed rape on her. Without recording any evidence under Sections 200 and 202 of Cr.P.C. the learned Magistrate vide impugned order dated 21.3.07 directed the police under Section 156(3) of Cr.P.C. to register a case and after investigation file a report in the Court. This action of the learned Magistrate has been impugned by Smt. Uma Kushwah, the learned counsel for the petitioners, on the ground that as provided under proviso A of sub-section (1) of Section 202 of Cr.P.C. without examining the witnesses of the complainant, directing the police as aforesaid is prohibited. In support, she has drawn attention on an order of this Court passed in Kamlesh Pathak and five others v. State of M.P. and another in which vide para 12 the following observation has been made by one single Bench of this Court: