Hari Bans Tewari and Others vs Hari Shanker and Others

J.P. Chatarvedi, J.—This is an application by Hari Bans Tewari, Hri-daya Narain. Tewari, Bansh Gopal Tewari, Nand Lai Tewari and Chhotey Lal u/s 482 Code of Criminal Procedure for setting aside an order of the learned II Additional Sessions Judge, Ghazipur dated 30th April, 1976 allowing a revision of the opposite party Hari Shanker Tewari and setting aside the order of the Magistrate for not summoning the applicants for an offence u/s 307 IPC.

The facts giving rise to this application are that Hari Shanker Tewari made a complaint on 7th August, 1974 in the Court of the Judicial Magistrate, Ghazipur that Hari Bansh Tewari, Hri-daya Narain Tewari, Ban SC opal Tewari, Nand Lal and Chhotey Lal armed with pistols and spears and Gandasa entered the house of the complainant. They started dismantling his Ahata and when he protested Hari Bansh Tewari exhorted his companions whereupon Htidaya Narain fired four shorts from his pistol and Nand Lal inflicted a blow with his spear. The complainant however, escaped injuries. Thereupon other assailants started pelting brick bats causing injuries to him. Learned Judicial Magistrate recorded statements of the prosecution witnesses and after considering the same and other evidence on record he was of the view that offences under Sections 440, 323 and 452 IPC were made out. He accordingly summoned the accused for those offences. He did not summon the accused for an offence u/s 307 IPC.

The complainant filed a revision in the Court of Sessions. The revision was heard by the II Additional Sessions Judge who allowed the revision holding that the learned Magistrate had no jurisdiction to make an enquiry and assess the value of the evidence and discharge the accused of an offence which was exclusively triable by a Court of Session, an offence u/s 307 IPC being such an offence.

The applicants have assailed the order of the learned Sessions Judge and have contended that the Magistrate had jurisdiction to consider the evidence before him to determine whether a prima facie case in respect of an offence exclusively triable by a Court of Session has been made out or not. After taking cognizance under the provision of Section 190 Code of Criminal Procedure on the basis of a complaint the Magistrate has to deal with the complaint in the manner provided in Chapter XIV. Section 200 requires him to examine the complainant and his witnesses on oath and to reduce to writing the substance of their statements. Section 202 further empowers him to postpone the issue of process until an enquiry into the case by the Magistrate himself or investigation by police. Sub section (1) is subject to a proviso that investigation cannot be ordered to be made in a case which is exclusively triable by a Court of , Sessions. Sub-section (2) further lays down that in an enquiry under sub-section (1), the Magistrate may, take evidence of witnesses on oath. But in a case which is exclusively triable by a Court of Session he has no such option. He has to record statements of the complainant and the witnesses. The proviso is to the following effect :

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

This provision has escaped the notice of the learned Sessions Judge. It make obligatory on the Magistrate to hold an enquiry u/s 202 in a case exclusively triable by a Court of Sessions and to examine the complainant and all the witnesses. u/s 203 the Court has to consider the statements of the complainant and his witnesses and dismiss the complaint if no prima facie case is made out. This provision is applicable to cases which have been initiated on a complaint irrespective of the fact whether the offence is triable by a Magistrate or is exclusively triable by a Court of Session. If it is so the Magistrate has prima facie to find out whether on the basis of the evidence before him an offence exclusively triable by a Court of Sessions is made out and if no offence is made out he can dismiss the complaint. Where more than one offence is alleged the Magistrate may partly dismiss the complaint in respect of such offence as has not been made out on consideration of the statements of the witnesses. u/s 201 he can issue process only in respect of such offence as has been prima facie made out. The order of the Magistrate was, therefore, legally correct and the learned Sessions Judge was not justified in interfering with it.

The petition is, therefore, allowed and the order of the learned II Additional Sessions Judge dated 30th April, 1976 in Criminal Revision No. 21 of 1976 Hari Shauker Tewari v. State, is quashed. The stay order is vacated. The learned Magistrate is directed to proceed with the trial.