1. In this petition filed Under Section 397 r/w. S. 401 Cr. P.C., the challenge is to an order made by the JMFC, Ron, on 4-12-82 in C.C. 658/82 on his file issuing process to the petitioner for an offence under Section 302 r/w. 109 IPC.
2. In order to appreciate the contentions raised by the petitioner in the matter, a few facts which are not in dispute may be stated :
The proceeding in the Court below in C.C. 658/82 was initiated by the first respondent Mallanagouda by filing a complaint therein under Section 200 Cr. P.C. (Code). Hiscase was that 4 persons mentioned in his complaint as Accused 1 to 4 had during the night between 13th and 14th of March 1982 at Arahunshi, Taluk Ron of District Dharwad assaulted Shantavva and Basanagouda and that due to that assault Shantavva had sustained injuries and Basanagouda had died: that they had done so at the instance of the 5th accused Kedargouda (petitioner herein): that, the Ron police who had registered a case for these offences, afterinvestigation, had placed their final report in the Court showing only the first four as the accused and omitted the 5th accused; that therefore he had preferred this complaintdirectly to the Court so that the Court may take cognizance of the offence against the 5th accused also and further proceed in the matter.
3. The J.M.F.C. taking cognizance of this complaint under Section 200 of the Code recorded the swornstatements of the complainant Mallanagouda and 3 others, Kamalavva, Shantavva and Appanna. On examination of that material, and, being of opinion that there was sufficient ground to proceed against the 5th accused (the petitioner herein) also in the case, issued process on 4-12-1982 to him for the aforesaid offence.
4. It may be relevant to note that by then (by 4-12-1982), having taken cognizance of the offences in question on the charge sheet placed by the Ron police against the first 4 accused, he had held an enquiry and committed those accused to the Court of Session, exercising his powers under Section 209 of the Code.
5. Challenging the order dated 4-12-1982 issuing process to the petitioner it was argued by his Learned Counsel that in view of Section 319 of the Code the Court below ought not to have entertained the complaint, held an enquiry and issued process to the petitioner. Elaborating his submission what he contends is that it would be open to the Court of Session, if it appears to it during the Trial of the case from the evidence that this petitioner also had a hand in thecommission of that offence to proceed against and try him along with the other accused who are already before him. He further argued that since the Sessions Court has also already taken cognizance of the offence in question U/s. 193 of the Code, the JMFC had no powers to entertain this complaint and proceed in this way. On the other hand, it was argued by the Learned State Public Prosecutor that the power vested with the JMFC under Section 190 of the Code to take cognizance of the offence and to entertain a complaint under Section 200 thereof and to proceed with the enquiry has not been taken away by the Court merely because Section 319 of the Code enables the Court of Session also to proceed against the person named not an accused. He conceded relying upon a decision in Mahant Amar Nath -v.- State of Haryana and another, : 1983CriLJ433 that in an appropriate case the Sessions Court can take recourse to Section 319 also. However, he argues, that the power vesting with the Magistrate of probing into a private complaint to find out as to whether in respect of an offence process is at all to be issued, and, if so, against whom all, cannot be said to have been in any manner affected either by 319 of the Code or by any of the otherprovisions. According to me, there is a good deal of force in this contention. In a situation like this, in an appropriate case, the JMFC can entertain a complaint and examine on merits to find out as to whether he should issue process to others also not sent up by the police in their final report.
6. Another submission made by the Learned Counsel for the petitioner may also be noted. He argued that in issuing process to his client the Learned Magistrate had not complied with the requirements of the relevant pro-visions contained in Chapter XV of the Code. In this connection he drew my attention to a decision of this Court in Ramanatha & Anr. -v.- State & Ors., 1984(2) KLJ 126 It is true that in Ramanatha this Court has observed that a Court on receipt of a complaint involving an offence exclusively triable by a Court of Session may have to examine all the witnesses before deciding as to whether process at all has to be issued to the persons concerned. That was a case in which the JMFC concerned had for the first time taken cognizance of the offences alleged on the basis of the com-plaint in question. The Court takes cognizance of the offences and not of the offenders. Before issuing process, the Court will have to see as to whether there is a prima facie case in re: the alleged offence and, if so, process is to be issued. In the instant case the Court below, as already stated, had taken cognizance of the offences in question on the final report submitted by the police earlier to this complaint. The only question that was required to be examined by the Learned Magistrate in the matter of this complaint was as to whether process was required to be issued to the petitioner also. It is from this angle and to examine this limited question the Learned Magistrate, using his discretion, had chosen to examine some of the important witnesses and this he appears to have done exercising his powers under Section 202 of the Code. In these circum-stances, this case being distinguishable on facts from the case in Ramanatha and another, the ratio enunciated therein that the Court should examine all the witnesses will not apply and it is sufficient if he examines a few important witnesses. Since that is complied with in this case nothing else is required to be done.
7. Clarifying the interim stay issued by this Court, in this proceeding it is made clear that since the Court below had passed an order committing the accused to the Court of Session by the time the stay was communicated to it, the said stay order has become infructuous.
8. For reasons stated above, I am not inclined to interfere with the order of the Learned Magistrate impugned herein. Accordingly, this Petition is dismissed.