ABDULLAH KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application filed under S. 482 of the Code of Criminal Procedure, prayer made by the petitioners is to quash the order dated 10-4-2001 passed by the Judicial Magistrate, Ist Class, Bettiah in Complaint Case No. 1434 (C)/2000 (Trial No. 1540 of 2001), whereby the learned Magistrate, having found that a prima facie case under Ss. 302, 201/34 of the Indian Penal Code has been made out, directed for issuance of process.

(2.) Bereft of unnecessary details, facts giving rise to the present application, is that the complainant O.P. No. 2 Maqbool Ahmad, filed a petition of complaint in the Court or the Chief Judicial Magistrate, Bettiah for proceeding against the petitioners for commission of offence under S. 302/34 of the Indian Penal Code. The Chief Judicial Magistrate perused the complaint petition and after hearing the counsel for the complainant, by order dated 11-9-2000, made over the case to another magistrate for disposal in accordance with law, in exercise of its power conferred under S. 192(1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The transferee Magistrate, examined the complainant on oath and decided to hold an inquiry under S. 202 of the Code in which witnesses were examined. The transferee Magistrate, being satisfied, prima facie, that the allegation made in the complaint petition, statement of the complainant on solemn affirmation and the witnesses examined during the course of inquiry, disclosed commission of offence under Ss. 302/34 and 201 of the Indian Penal Code, by order dated 10-4-2001, directed for issuance of process against the petitioners. It is this order of the learned Magistrate which has been impugned in the present application.

(3.) Mr. Raghib Ahsan, learned counsel appearing on behalf of the petitioners, contends that S. 192 of the Code confers power to the Chief Judicial Magistrate to make over a case to another Magistrate but the same is permissible only after the Chief Judicial Magistrate examines the complainanant on solemn affirmation. He points out that in the present case, the Chief Judicial Magistrate without examining the complaint on solemn affirmation, has made over the case to another Magistrate which is impermissible in law and as such, the order of the transferee Magistrate issuing process, is illegal. He further submits that the order of the Chief Judicial Magistrate, does not indicate that he had taken cognizance before making over the case and as such, the impugned order passed by the transferee Magistrate, is vitiated in the eye of law.