VISHWA MOHAN SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application under Section 482 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the Code) the petitioner seeks quashing of order dated 23.7.1996 passed by Judicial Magistrate, Patna, in complaint case No. 480 (c) of 1994 by which the learned Judicial Magistrate has rejected the application of the petitioner for sending back the case to the court of Chief Judicial Magistrate which had transferred the case under Section 192 of the Code to the Judicial Magistrate. Patna.

(2.) It appears that a criminal complaint was filed by opposite party No. 2 against the present petitioner and others in the court of Chief Judicial Magistrate who by his order dated 28.5.1994, after ordering the complaint to be registered, transferred the case under Section 192 of the Code to the Court of Sri Arunendra Singh, Judicial Magistrate, first class, Patna, for enquiry and disposal. On receiving the complaint case under the orders of the Chief Judicial Magistrate, the learned Judicial Magistrate recorded the statement of the complainant and the document filed by him he found the prima facie case to be made out for summoning the accused persons (including the petitioner) for the offences punishable under Sections 430 and 504 of the Code. This order was passed on 28.6.1994. The accused put in appearance. An application was filed on behalf of the accused person before the learned Judicial Magistrate that the transfer of case to his court by Chief Judicial Magistrate without taking cognizance is against the provisions of Section 192 of the Code, hence the case be transferred back to the court of Chief Judicial Magistrate. The le***ned Magistrate rejected the said application by the impugned order dated 23.7.1996. Feeling aggrieved by the said order the petitioner (one of the accused) has moved this application.

(3.) The learned Counsel for the petitioner has contended that the learned Chief Judicial Magistrate has himself not recorded the statement of the complainant under Section 200 of the Code which could be recorded only by the Magistrate taking cognizance and the transfer of the case under Section 192 of the Code could be done only after taking cognizance. The contention of the learned Counsel is that the cognizance cannot be taken unless the complainants are examined under Section 290 of the Code. His further contention is that record must show that the learned Magistrate has applied his judicial mind for taking cognizance. But, in the instant case, the learned Magistrate has simply ordered for registering the complaint any by the same order he has transferred the complaint under Section 192 of the Code to the learned Judicial Magistrate which is against the mandatory provision of Section 192 of the Code. Sub-section (1) of Section 192 of the Code lays down that any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for enquiry or trial to any competent Magistrate subordinate to him.