PRASANNA KUMAR DAS ALIAS PRASANNA Vs. SUDARSAN SETHY

JUDGEMENT

(1.) ONE of the accused persons in ICC Case No. 58/96 has filed this application under Section 482, Code of Criminal Procedure (in short, the 'Cr.P.C'), for quashing the order dated 30.5.1996, whereunder the Sub -Divisional Judicial Magistrate (in short, the 'S.D.J.M.'), Bhubaneswar, directed to issue process against the accused persons including the present petitioner on the ground that prima facie an offence under Section 307, India Penal Code, (in short, the 'I.PC') had been made out.

(2.) SEVERAL points had been urged but the learned counsel appearing for the petitioner in support of his prayer for quashing the order. However, it is unnecessary to notice all such contentions as the petition is to be allowed on a short point relating to non -compliance with the provisions contained in section 202(2), Cr.P.C. There is no doubt that the allegations in the complaint petition prime facie disclosed an offence, inter alia, under Section 307,1.P.C. An offence under Section 307,1.P.C is conclusively triable by a Court of Session. As such, as per the proviso to Section 202(2), Cr.PC, a Court before deciding to issue process is required to call upon the complainant to produce all his witnesses and examine them on oath. A perusal of the order -sheet in the present case makes it clear that such provision has not been complied with. To be more specific, it appears from the order dated 20.4.1996 that one witness produced by the complainant was examined and the S.D.J.M. directed :