SURENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application is directed against the order dated 6th of December, 1975 (Annexure 4) passed, by the Chief Judicial Magistrate, Patna, issuing processes against both the petitioners under Section 204 of the Code of Criminal Procedure, 1973 (briefly the 'new Code') for their trial for an offence under Section 302 of the Indian Penal Code, said to have been committed by them, on the ground that the said order was vitiated for non-compliance of the provision of Section 202(2) of the new Code which had already come into force on the date of the passing of the impugned order. The relevant facts may be stated in brief.

(2.) Mossomat Chandramati Devi (opposite party No. 2) had filed a petition of complaint on 30.1.1973 in the Court of the Sub-divisional Magistrate, Patna, against the petitioners and two others alleging that they had committed the murder of her husband Ragho Singh on 18.11.1972. Four persons were mentioned as witnesses in the petition of complaint. It is not necessary to state the other allegations made by the said complainant against the petitioners for decision of the question in issue in this case.

(3.) For the said occurrence, earlier a police case was instituted on the report of Krishna Kumar Singh (nephew of the deceased and now one of the accused in the present complaint case) in which both the petitioners were prosecution witnessess. The police, after investigation, had submitted chargesheet and all the accused were sent up to stand their trial. By a judgment passed by the Third Additional Sessions Judge Patna, on 31.7.1975, the trial however ended in their acquittal. In the meantime as already seen earlier the complaint petition in question was filed. The complainant was examined on solemn affirmation by the Sub-divisional Magistrate on the same day and thereafter he sent the case for inquiry under Section 202 of the Code of Criminal Precedure, 1898 (briefly the 'old Code') to Sri T.P. Sinha, a first class Magistrate, Patna. The Enquiring Magistrate examined two of the witnesses, named in the petition of complaint and submitted his report dated 24.4.1973, holding that the case of the complainant was false and the complaint was fit to be dismissed. The matter, however remained pending in the file of the Sub-divisional Magistrate till the new Code came into effect on 1.4.1974 and, conseqnently, the file was Transferred to the Chief Judicial Magistrate, Patna. The matter was taken up by the Chief Judicial Magistrate, and by his order dated 16.9.1974, he called the case diary along with the supervision note and the report of the C.I.D. in the earlier case, but inspite of several adjournments, only the case diary was received and the learned Chief Judicial Magistrate, after perusing the petition of complaint and examining the sworn statement of the complainant and the evidence of the two witnesses examined by the Enquiring Magistrate, held that a prima facie case was made out under Section 302 of the Indian Penal Code. Accordingly, he issued non-bailable warrant of arrest against the accused persons. It is this order that is being challenged by the persent application.