VIJAY PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard. Petitioners have filed this application for quashing order dated 30.08.2000 passed by Chief Judicial Magistrate, Araria in Complaint Case No. 1470C of 2000 under Sections 376, 341, 323, 504 of Indian Penal Code by which, after taking cognizance, non- bailable warrant of arrest against the petitioners was issued, order dated 17.09.2002 passed by Sessions Judge, Purnea in Criminal Revision No. 441 of 2000 whereby and whereunder the revision filed by the petitioners against order dated 30.08.2000 passed by learned Chief Judicial Magistrate, Araria was dismissed and also order dated 3.12.2004 passed by Chief Judicial Magistrate, Araria by which his earlier order dated 30.08.2000 has been reiterated.

(2.) Learned Counsel of petitioners submits that on the basis of complaint petition filed by opposite party No. 2 against the petitioners under Sections 376, 341, 323, 504 of Indian Penal Code, the learned Chief Judicial Magistrate, Araria, without examining the witnesses of complainant, took cognizance of the offence and issued non-bailable warrant of arrest against the petitioners. The petitioners challenged this order before the learned Sessions Judge, Purnea in Criminal Revision No. 441 of 2000 who by his order dated 17.9.2002, by observing that since the case being exclusively triable by Court of Session, the learned Chief Judicial Magistrate should have entered into an enquiry under Section 202 of Criminal Procedure Code although dismissed the revision but gave direction to Chief Judicial Magistrate to enter into enquiry under Section 202 of Criminal Procedure Code by calling upon complainant to produce her witnesses and, thereafter, pass necessary orders in accordance with law. It is further submitted that after passing the aforesaid order in revision, the matter again was considered by learned Chief Judicial Magistrate, Araria where complainant, instead of producing her witnesses, filed a petition for withdrawal of the case on the ground of compromise and the learned Chief Judicial Magistrate by his order dated 3.12.2004, by observing that since his earlier order dated 30.8.2000 had not been set aside by learned Sessions Judge, Purnea in revision, reiterated his earlier order by which non-bailable warrant of arrest against the petitioners had already been issued. Learned Counsel of petitioners submits that the learned Sessions Judge, Purnea in Criminal revision preferred by petitioners accepted their plea that in a case exclusively triable by Court of Session, according to the proviso to Section 202 of Criminal Procedure Code, Magistrate was required to call upon the complainant to produce her witnesses for examining them on oath and since this procedure was not followed and learned Chief Judicial Magistrate had straightway taken cognizance and issued non-bailable warrant of arrest against the petitioners for their appearance in the case, the order was not in accordance with law and learned Sessions Judge although gave direction to learned Chief Judicial Magistrate to enter into enquiry under Section 202 of Criminal Procedure Code and call upon the Complainant to produce her witnesses and, thereafter, pass necessary orders in accordance with law but because in his order, he made observation that he did not feel inclined to set aside the impugned order, therefore, the learned Chief Judicial Magistrate, even after passing of order in Criminal Revision No. 441 of 2000 observed that since his order dated 30.8.2000 had not been set aside reiterated this order by which non-bailable warrant of arrest against the petitioners were already issued.

(3.) By order dated 30.8.2000, learned Chief Judicial Magistrate issued non-bailable warrant of arrest against the petitioners and when the learned Sessions Judge, Purnea in Criminal Revision sent back the matter to learned Chief Judicial Magistrate with direction to enter into enquiry under Section 202 of Criminal Procedure Code by calling upon complainant to produce her witnesses and thereafter to pass necessary orders in accordance with law, it means that at least that part of order of learned Chief Judicial Magistrate issuing non-bailable warrant of arrest against the petitioners, was set aside. In this view of the matter, I find that the observation of learned Sessions Judge in Criminal Revision No. 441 of 2000 that he did not feel inclined to set aside the impugned order is not the correct observation.