(1) The facts leading to the revision petition brieffy are as follows :- Before Shri K. K. Chowdhury, Judicial Magistrate 1st Class, Delhi, Madan Lal gave a complaint against Chanan Lal and Ved Parkash (Petitioners) on 14-9-71 alleging the commission of offences punishable under Section 323/504 Indian Penal Code . The police had already filed a challan in May, 1971, against yet another Chanan Lal, nephew of Mohan Lal (complainant). There was also a private complaint filed by Sohan Lal, uncle of Chanan Lal (Petitioner) against Mohan Lal (complainant) and two others under Section 323 I. P. C. All these complaints are said to relate to the same occurrence, which happened on 28th of March, 1971.
(2) Shri B. N. Chaturvedi took cognizance of the complaint and examined the complainant besides four others witnesses under Section 202 Cr.P.C. The last of them was examined on 15-2-72. Subsequently it was posted on various dates for arguments and for orders; it was finally posted by Shri B. N. Chaturvedi to 11 -5-78. Shri B. N. Chaturvedi had not directed the issue of process. On 11-5-1972 the successor Magistrate (Shri M. S. Rohilla) directed the issue of process to the accused; the order sheet reads as follows:
'FILEreceived today. Present complainant along with his counsel. Preliminary arguments heard. Orders passed. Accused persons be summoned for 27-5-72 on P.F. deposit under Section 323/504 I.P.C.'
The revision petition is directed against the said order of issue of process.
(3) On the ground that under Section 204 of the Cr.P.C. it is only a Magistrate who takes cognizance of the complaint who can issue the process to the accused but not a succeeding Magistrate who has not himself taken the cognizance and recorded the sworn statement of the complainant and/or of the witnesses of the complainant.
(4) It is, necessary, before adverting to the terms of Section 204 Cr. P.C. to notice the following provisions. Sections 192, 200(c) and 204(1) of the Cr.P.C. read as follows :
SEC. 192(1). Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. (?) Any District Magistrate may empower any Magistrate of the first class who has taken cognizance of any case, to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial, and such Magistrate may dispose of the case accordingly.'
'WHENthe case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate whom it is so transferred shall not be bound to reexamine the complainant.'
'IFin the opinion of Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which, according to that column) a warrant should issue in the first instance, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has not jurisdiction himself). Some other Magistrate having jurisdiction. (IA) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. (IB) Exactly the same question was considered by the Supreme Court in Rajendra Nath Mahato v. Deputy Superintendent of Police : 1972CriLJ268 . AN. Ray J. (as he then was) speaking for the Supreme Court held that only a Magistrate who takes cognizance of a complaint under Section 204 Cr.P.O., could issue the process unless the case comes under any of the exceptions to Section 200 Cr.P.C. Only exception (c)to Section 200 Cr.P.G. could possibly apply to the present situation. It provides that where there is a transfer under Section 192 of the Cr.P.G., the complainant need not be examined again, there is no other situation in which the fresh examination is dispensed with by a successor Magistrate before directing the issue of process to the accused. In the case before the Supreme Court also there was no such transfer. The following observations of A.N. Ray,J., are material and have to be set out.
'THEquestion for consideration is whether Shri Sarkar could have issued process in the present case. Shri Ganguly was the Magistrate who took cognizance. Shri Sarkar was not the Magistrate who took cognizance. thereforee, under Section 204 of the Code of Criminal Procedure the Magistrate who took cognizance of the case could issue process.' 'In these cases where either the Magistrate has taken cognizance and is in seisin of the case or where as case is transferred by a Magistrate who has taken cognizance to another Magistrate subordinate to him the complainant is required to be examined under Section 200 of the Code of Criminal Procedure. There are certain exceptions with which we are not concerned in the present appeal. The relevant section which confers power on the Magistrate to whom the case has been transferred to issue process is Section 202 of the Code of Criminal Procedure. The language of S. 202 of the Code of Criminal Procedure is that the Magistrate, may for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against. thereforee, the power of the Magistrate to issue process under S. 202 of the Code of Criminal Procedure is not limited by the terms of S. 204 of the Code of Criminal Procedure to issue process.'
'THEREFORE,the two courses are: first, under Section 204 of the Code of Criminal Procedure for the Magistrate taking cognizance to issue progress or secondly under Section 202 of the Code of Criminal Procedure for a Magistrate to whom a case has been transferred to issue process.'
(5) In the present case there was no order of transfer of the case by Shri Ganguly to Shri Sarkar. The issue of process is a matter for judicial determination Before issuing a process the Magistrate has to examine the complainant. That is why the issue of process is by the Magistrate who has taken cognizance or the Magistrate to whom the case has been transferred. The High Court thereforee correctly quashed the issue of process.'
(6) In the case before the Supreme Court the cognizance of the offence had been taken by Shri S.K. Ganguly (a Magistrate) but the process was directed to issue by a different Magistrate, Shri S. Sarkar, who had not taken cognizance of the offence. It was, thereforee, held that Shri S. Sarkar had no right to direct the process to issue to the accused under Section 201 Cr.P.C.
(7) This is exactly the situation here except for the fact that the observations were made by the Supreme Court in a case where there had been a further enquiry directed under Section 436 after dismissal under Section 203 Cr.P.C. This is not sufficient to distinguish the said case from the present one; the observations quoted above are the direct application to the pregent case.
(8) Shri Bawa Gurcharan Singh, who kindly assisted the court, drew my attention to Section 350 and 359 of the Code of Criminal Procedure. But these general provisions do not apply when Section 204 and Section 200(C) Gr.P.G. are the specific provisions directly applying to the present situation.
(9) The order passed by Shri M.S. Rohilla directing the issue of process is set aside. The learned Chief Judicial Magistrate, before whom the complainant will appear on 4-6-73, will transfer this complaint under Section 192 Cr.P.C. to a learned Magistrate other than Shri M.S. Rohilla, for the complaint being proceeded with further according to law. The revision petition is ordered accordingly. The say petition is dismissed and interim stay vacated.