RAM ASHISH CHAUDHARY Vs. MAHANTH PRASAD

JUDGEMENT

(1.) THE present application has been filed for quashing the order dated 5.2.2002 passed in Complaint Case No. 1101 (C) of 2001 passed by the Chief Judicial Magistrate, Gopalganj, dismissing the complaint case under Section 203 of the Code of Criminal Procedure. The petitioner also seeks quashing of the consequential order dated 19.5.2003 passed in Cr. Rev. No. 104/2002 passed by the District and Sessions Judge, Gopalganj affirming the said order.

(2.) THE case of the petitioner is that Gopalganj PS Case No. .15/2001, dated 15.1.2001 was registered under Sections 147, 148, 149, 504 and 436 of the Penal Code. Wherein the petitioner was the informant. The police submitted Final No. of 2001, dated 21.1.2001 that the case appeared to be false and recommend proceedings under Sections 182 and 211 of the Penal Code against the informant. Thereafter a protest petition was filed by the petitioner on 26.3.2001. The learned Chief Judicial Magistrate Gopalganj examined the complainant on solemn affirmation on 15.9.2001, took cognizance of the case and proceeded to hold enquiry under Section 202 of the Code of Criminal Procedure.

(3.) COUNSEL for the petitioner contends that since offence under Section 436 of the IPC was triable exclusively by the Court of Session the learned Chief Judicial Magistrate had no option but to commit the case to the Court of Sessions and that he could not dismiss the case after having taken cognizance by meticulous examination, as a trial Court, of the evidence led before him during the course of enquiry under Section 202. Learned counsel for the petitioner submits that the Magistrate was only required to commit the case to the Court of Sessions which would have then proceeded in accordance with law. Learned Counsel for the petitioner in support of the preposition that the learned Magistrate could not have entered into meticulous examination of the evidence as a trial Court, in an enquiry under Section 202, relies upon an unreported judgment of this Court in Cr. Appeal No. 9 of 1992. In the context of examination of this case it is relevant to set out Section 192 (1) and 202 (2) of the Code of Criminal Procedure: ''