JOKHAN JHA Vs. RAM SARAN JHA

JUDGEMENT

(1.) The petitioner has Come up to this Court against an order of an Honorary Magistrate of Samastipur who summoned a witness as a Court witness and commenced his examination on 12.2-1965 The impugned order is dated 20th September 1965.

(2.) The facts of the case are these. On the 23rd August, 1962, the petitioner filed a petition of complaint before the Sub-Divisional Magistrate, Samastipur, making out a case under Section 395 of the Indian Penal Code against 11 persons on the ground that the police was inimical towards him. The petitioner, who had received injuries, was an indoor patient in the Samastipur Hospital, and on a report from the Hospital authorities, the police instituted a case on the same facts and ultimately submitted a charge-sheet under Sections 147 and 380 of the Penal Code. The Sub Divisional Magistrate took cognizance under Sections 147, 323, 325 and 380 of the Penal Code, not on the police report, but on the facts made out by the complainant. So, this was a complaint case.

(3.) The case was transferred to a First Class Magistrate for disposal, who examined one witness for the prosecution and thereafter the case was transferred to the file of a Second Class Magistrate who adopted the procedure of a warrant trial, in spite of a protest by the complainant, and examined three witnesses for the prosecution. Thereafter the case was transferred to an Honorary Magistrate with first class powers, namely, Shree S.S. Singh. The petitioner filed a petition before him for adopting the committal procedure laid down in Chapter XVIII of the Criminal P. C. This prayer of the petitioner was rejected, however, on the 30th January, 1964. Ultimately, a few more witnesses were examined by the petitioner before this Magistrate, as also the Doctor of the Samastipar hospital. Then a Dasti summons was given by the Magistrate to the lawyer for the accused to bring the police witness, i.e., the Officer who had investigated the police case, on 12.2.1965 in order to examine this officer as a Court witness, and, in fact, the Magistrate did examine this officer in part on the lath February, 1965; but he had to stay his hands, as the petitioner filed a petition praying for time to move the higher Courts for transfer of the case from his file. Having failed to get his remedy before the Sessions Judge of Darbhanga the petitioner came to this Court and this case was referred to a Division Bench on 19-4.1966 by one of the learned Judges of this Court