DAROGA CHAUBEY Vs. KANTI BAITHA

JUDGEMENT

(1.) This application is directed against the order of the learned Magistrate dated 9.3.1977 by which he has taken cognizance against the petitioners under sections 147, 148, 323, 324, 379 and 436 of the Indian Penal Code.

(2.) On 10.11.1976 opposite party no. 1 lodged a petition of complaint alleging that on 8.11.1976 at 10 p.m. the petitioners after having formed an unlawful assembly came to his house duly armed with bhala, garasa and lathi. It was also his case that at the instance of petitioner Ramaji Tiwari (petitioner no. 7), Bhup Narain Tiwari (petitioner no. 6) set fire to his house, and on his protest he was assaulted by means of pharsa by petitioner Jamuna Tiwari and others. In the petition of complaint 6 persons were named as witnesses. The learned Magistrate examined the complainant on solemn affirmation, and out of the 6 witnesses he examined 4 and 2 witnesses, namely, Bechan Bharihar and the Doctor who had examined the injuries of opposite-party no. 1 were not produced. The learned Magistrate by his order dated 9.3.1977 took cognizance against the petitioners and summoned them for trial. Being aggrieved by the aforesaid order, the petitioners have moved this court for quashing of the cognizance.

(3.) Learned counsel appearing on behalf of the petitioner has contended that the petitioners have been summoned under saction 436 of the Penal Code which is triable exclusively by the Court of Session, and all the witnesses named in the petition of complaint have not been examined, and, therefore, the order of the learned Magistrate is bad in law, and fit to be set aside. In support of his contention, reliance has been placed on a Bench decision of the Calcutta High Court in Kamal Krishna v. The State, (1977 Cr LJ 1492) Mr. M. N. Jha learned counsel appearing on behalf of opposite party no. 1, has contended that under the law a duty is cast upon the Magistrate to direct the complainant to produce his witnesses and, even if some witnesses are not produced, that will not vitiate the order of the learned Magistrate. It has also been submitted that opportunity was given to the complainant to produce his witnesses by the Magistrate and, therefore, the order of the Magistrate should not be disturbed. Similar stand has also been taken on behalf of the State.