IBRAHIM KHAN Vs. STATE

JUDGEMENT

(1.) This Misc. Petition under S. 482, Cr. P. C. is directed against the order D/- 4-9-89 passed by the learned Sessions Judge, Churu whereby he affirmed the order D/- 15-6-89 of the Chief Judicial Magistrate issuing warrant of arrest against the petitioner.

(2.) The short facts of the case are these : Ayub, respondent No. 2 lodged a First Information Report on 30-9-86 against seven persons in respect of an occurrence which took place in the previous night on which a case under S. 307, I. P. C. was registered. As injured Shafi died during investigation, Section 302, I.P.C. was also added. After the completion of the investigation, the police submitted a challan on 6-12-86 against six persons and filed a Final Report against petitioner Ibrahim Khan. Vide order D/- 29-1-87 the six accused challaned by the police were committed to the Court of Session. Thereafter on 20-4-87 first informant Ayub filed a private complaint before the Magistrate against seven persons (six already challaned by the police and Ibrahim, petitioner). The Magistrate recorded statements of the complainant and his witnesses. The Magistrate vide order D/- 15-6-89 ordered the summoning of the petitioner by a warrant of arrest. This order was challenged by petitioner Ibrahim by filing revision petition before the Sessions Judge, Churu who vide order D/- 4-9-89 dismissed the revision petition. Now this Misc. petition.

(3.) Mr. Shishodiya learned counsel for the petitioner vehemently contended that under S. 190, Cr. P. C. the Magistrate takes cognizance of the offence/s and once the Magistrate takes cognizance of the offence/s under any of the clauses (a), (b) or (c) he cannot take cognizance again in respect of same offence/s. He pointed out that the Magistrate had already taken cognizance of the offences in exercise of power under S. 190(1)(b) when the police submitted challan against six persons named in the F. I. R. and contended that after committing the case to the Court of Session the Magistrate had no power to take cognizance against the petitioner on the basis of the private complaint as that amounted to taking of the cognizance twice which is not permissible under S. 190, Cr. P. C. His contention was that if the Sessions Judge is satisfied after evidence is recorded, he may summon the petitioner as additional accused in exercise of power under S. 319, Cr. P. C. but the Magistrate could not do so under S. 190, Cr. P. C. after he had committed the case to the Court of Session. His further submission was that the Magistrate had examined only 11 witnesses before passing the order of summoning the petitioner whereas he ought to have examined all the witnesses as the case was triable by the Court of Session.