RAM BILAS SINGH Vs. SUMITRA KUER

JUDGEMENT

(1.) This application has been filed for quashing the order dated 18-4-1990 by which the learned Sub-divisional Magistrate has summoned the petitioners to face trial.

(2.) Upon filing of the petition of complaint by his order dated 20-1-1990/29-1-1990 the learned Chief Judicial Magistrate after perusal of the record made over the case of the file of Sub-divisional Judicial Magistrate, Aurangabad for disposal under Section 192 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'New Code'). The learned Subdivisional Judicial Magistrate upon receipt of the records examined the complainant on solemn affirmation and decided to hold an enquiry under Section 202 of the New Code. Upon completion of the enquiry he has summoned the petitioners by the impugned order. Hence, this application for quashing.

(3.) The only point raised on behalf of the petitioners in support of this application is that it was incumbent upon the learned Chief Judicial Magistrate to first examine the complainant on solemn affirmation before passing any order under Section 192 of the New Code. In support of his submission learned counsel has placed reliance upon a decision of this Court by a learned Single Judge in the case of Arvind Kumar Sinha and another v. The State of Bihar and another, 1990 BBCJ page 142, in which case cognizance was quashed upon two grounds. Firtly, on the ground that the petition of complaint did not disclose any criminal offence of secondly, on the ground that the learned Magistrate transferred the case under Section 192 of the New Code without examination of the complainant on solemn affirmation. In my view, it is not possible to follow this decision and the law laid down therein can not be a binding precedent as the said decision is per incuriam in view of the fact that it has not even referred to an earlier decision of this Court by a Division Bench in the case of Sudama Singh v. Kyvindra Narain Singh, 1973 Bihar Law Journal Reports, page 66 laying down contrary law. In that case without examination of the complainant on solemn affirmation the case was transferred under Section 192 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Old Code'). The transferee court also did not examine the complainant on solemn affirmation and he directed for issuance of process against the accused. This Court maintained the order passed by the learned Magistrate, transferring the case under Section 192 of the Old Code and set aside the order of the transferee court only by which without examination of the complainant on solemn affirmation he had directed for issuance of process against the accused after interpreting provisos (a; and (c) of Section 200 of the old Code, which run thus :