M.L. Pendse, J.
1. By this petition filed under Article 227 of the Constitution of India and under section 482 of the Code of Criminal Procedure, the petitioners-original accused are challenging the order dated August 20, 1981 passed by the Judicial Magistrate, First Class, Jamkhed issuing process under section 302 read with section 34 of the Indian Penal Code against the two petitioners.
2. Respondent No. 2 complainant filed Criminal Case No. 22 of 1981 on March 25,1981 before the Judicial Magistrate, Jamkhed, claiming that the two accused committed the murder of her husband on February 13, 1981. On presentation of the complaint, the trial Magistrate by his order dated March 25,1981 directed the complainant to lead entire evidence on the next date. In the meanwhile the trial Magistrate also called for the report from the police. The report was to the effect that the deceased had committed suicide. On the next date of hearing, i.e. August 20,1981, the presiding Magistrate, who succeeded to the office after March 25, 1981 , passed the impugned order observing that on perusal of the contents of the complaint and on verification of the complaint prima facie case for committing the accused to the Sessions Court has been made out and, therefore, process was issued under section 302 read with section 34 of the Indian Penal Code. That order is under challenge.
3. Shri Apte, the learned Counsel appearing in support of the petition, submitted that the trial Magistrate was clearly in error in over-looking the earlier order dated March 25,1981 passed by his predecessors. The submission of Shri Apte is correct and deserves acceptance. The proviso to sub-section (2) of section 202 of the Code of Criminal Procedure clearly provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, then he shall call upon the complainant to produce all his witnesses and examine them on oath. Inspite of this mandatory provision of the Code of Criminal Procedure, the trial Magistrate has issued the process observing that prima facia case has been made out. The order passed by the trial Magistrate is clearly erroneous and the trial Magistrate should not have overlooked the earlier order passed by his predecessors.
4. Accordingly, the petition succeeds and the order dated August 20, 1981 passed by the trial Magistrate issuing process is set aside. The trial Magistrate is directed to proceed with the complaint in accordance with the earlier order passed by his predecessor on March 25,1981.