Mohabbat Ali and Others vs State

S. Zaheer Hasan, J.—This is a revision against the order dated 20-9-1982 passed by the VIIth Addl. Munsif Magistrate Sultanpur.

Mohammad Sharif filed a complaint under Sections 395/397 IPC against the revisionists. A final report was submitted by the police. On receipt of protest application from the complainant the learned Magistrate summoned the accused persons to stand their trial under Sections 395/397 IPC. Aggrieved by this order, the accused persons have come up in revision.

The charge is under Sections 395/397 IPC which is exclusively triable by the court of session. Proviso to Section 202(2) of the Code of Criminal Procedure, 1973 lays down 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.

In Mahendra Tiwary Vs. Mt. Lal Pari Devi and Others, (Lucknow Bench) it was held by this Court that the Magistrate could take cognizance of an offence u/s 190(1)(c) of the Code on the basis of complainant''s protest petition and accompanying affidavit even if the final report submitted by police u/s 169 was not accepted by him. In such a case if the offence complained of is exclusively triable by Court of Session, the procedure prescribed for trial or enquiry of a case instituted on a private complaint has to be followed. He cannot issue process straightway to the accused. He cannot commit him to Sessions without recording complainant''s evidence as laid in Section 202(2) Proviso. After enquiry under the said proviso he can issue process against accused if necessary and commit him to Sessions in accordance with law.

In Dinesh Chand Sinha Vs. Rahmatullah and Another, : Dinesh Chand Sinha Vs. Rahmatullah and Another, it was held that in view of the proviso to Sub-section (2) of Section 202 Code of Criminal Procedure the Magistrate is bound to examine all the witnesses who are to be produced on behalf of the complainant before summoning the accused in cases which are exclusively triable by the Court of Session. If, therefore, a Magistrate summons an accused in a case triable exclusively by the Court of Session without examining all the witnesses who are to be produced by the complainant the order summoning the accused would be illegal. The Magistrate can certainly summon the accused even after examining some of the witnesses mentioned in the complaint but the complainant has to make it clear that the witnesses examined on his behalf were the only witnesses on whom he intended to rely upon. If the complainant does not make his position clear then it is not open to the Magistrate to summon the accused without examining all the witnesses either mentioned in the complaint or in the list accompanying the complaint.

In Ahibaran Singh and Others Vs. State of U.P. and Another, this Court observed that where the case was registered against the person u/s 307 IPC and before the acceptance of the final report submitted by the Police, the informant had filed a protest petition and the Magistrate after considering the same had passed the order that the accused persons be summoned, that part of the order whereby the Magistrate took cognizance was well within his competence in view of the powers vested u/s 190 Code of Criminal Procedure, but as the case was exclusively triable by Sessions Court, that part of the order which straightway directed summoning of accused was not valid. In such a case, Section 204 would also be attracted and as provided u/s 202(2) all the witnesses, which the person making the protest petition desired to produce, should have been examined and only then the Magistrate should have passed a suitable order in the light of the evidence produced before him.

In view of what has been stated above, the impugned order in the instant case is clearly illegal and has to be set aside.

The revision is allowed and the impugned order is quashed. It will be open to the Magistrate to summon the accused, if warranted by evidence, after adopting the procedure prescribed by law.