DWIP CHAND MUNDA Vs. PRAVASH KUMAR CHOWDHURY

JUDGEMENT

(1.) This Special Bench has been constituted on the requisition of N.C. Mukherjee, J., who being unable to agree with a Division Bench decision of this Court in the case of Kamal Krishna De v. State (81 Cal W. N. 976) : (1977 Cri LJ 1492) and in view of conflicting decisions of other High Courts on the point, referred the matter to the learned Chief Justice for constituting a larger Bench relying on the principle laid down in the case of Tara Dutta v. State.

(2.) On December 16, 1975 the complainant opposite party Pravash Kumar Chowdhury lodged a petition of complaint against the petitioners in the Court of the Sub-Divisional Judicial Magistrate at Basirhat alleging commission of offences under Sections 148, 324, 307 and 395 read with Section 120B of the Indian Penal Code. The learned Magistrate after examining the complainant and one witness by an order dated December 16, 1975 issued process against the petitioners under the aforesaid sections overruling their contention that it was necessary to examine all the witnesses in accordance with the provisions of Section 202 of the Code of Criminal Procedure, 1973. Against this order the Rule has been obtained.

(3.) The point in issue in this Rule and which according to N.C. Mukherjee, J. requires the consideration of a larger Bench, is whether in cases instituted on a complaint and which are exclusively triable by a Court of Session, the Magistrate is required to call upon the complainant to produce all his witnesses and to examine them under the proviso to Section 202 (2) of the Code before the issue of process? Incidentally different Division Benches of this Court, not only in the case but also in other unreported decisions, have consistently held that in such cases a Magistrate has to call upon the complainant to produce all his witnesses and to examine them.