SUBASH BASTIA Vs. BHAGABAT BASTIA

JUDGEMENT

(1.) THIS revision by the accused person arises out of the order of the learned Magistrate taking cognizance, of offences under Sections 436 /380/324/34. I.P.C. alleged to have been committed by the Petitioners. .

(2.) OPPOSITE party No. 1 lodged First Information Report in Kakatpur Police -Station naming the Petitioners to have set fire to the house of opposite party No. 1 on 14 -7 -1986 and having committed the other offences. This was registered as G. R. Case No. 412 of 1986. After investigation not being satisfied with the truth of the allegations against the Petitioners the Investigating Officer submitted final form to that effect. Not being satisfied opposite party No. 1 filed written complaint on 29 -9 -1986 in the Court of the Judicial Magistrate. First Class, Nimapara. The learned Magistrate directed the opposite party No. 1 to produce all his witnesses as the allegations include an offence under Section 436, I.P.C. triable by the Court of Sessions. This was purported to be an enquiry under Section 202, Criminal Procedure Code In the enquiry he examined all the witnesses named in the complaint petition on different dates and recorded the initial statement of the complainant on 24. 1 -1986. On perusal of those statements, he recorded the prima facie findings and took cognizance of the offences. Processes were directed to be issued against the Petitioner for appearance. On 25th March, 1987, Petitioners appeared through advocate and prayed for adjournment to move this Court on the question of maintainability of die case. As the accused persons did not appear personally, the learned Magistrate directed issue of Non -Bailable Warrant of Arrest fixing 24th April. 1987 for production of the Petitioners. On the direction of this Court further proceeding has been stayed and the Non -Bailable Warrant of Arrest have been recalled.

(3.) MR . Panda submitted that the language of Section 200, Cr, P. C. leaves no option to the learned Magistrate not to examine the witnesses present since the phrase 'shall examine upon oath the complainant and the witnesses present, if any, ''is of mandatory character. He relied upon a decision of Calcutta High Court reported in Mac Culloach v, The State and Anr., 1974 Cri. L. J. 1982, in support of his contention. With respect. I am not able to accept the ratio decidendi of the said decision. In Nirmaljit Singh Hoon v. The State of West Bengal and Ors. : A.I.R. 1972 S.C. 2639. the object of the examination of witnesses has been laid down as follows ;