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Laxmiben Wife of Magan Parshottam Vs. Magjibha Bijiyabhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1982)2GLR724
AppellantLaxmiben Wife of Magan Parshottam
RespondentMagjibha Bijiyabhai and ors.
Cases ReferredChandradeo v. Prakash Chandra
Excerpt:
.....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. 5. a mere look at the aforesaid provisions of section 202 leaves no room for doubt that when it appears from the complaint filed before a magistrate that the offence complained of is triable exclusively by a court of session, the learned magistrate cannot direct any investigation to be made regarding the said offences but he has to inquire into these offences himself. sub-section (2) of section 202 of the code read with the proviso clearly fortifies this position by enjoining upon the magistrate in such cases to call upon the complainant to call all his witnesses and examine them on..........to inquire under section 202 of the code of criminal procedure, 1973 and report there after to the learned magistrate. the said order is passed below a private complaint filed by the petitioner-complainant before the learned trial magistrate. the said complaint is filed against respondents nos. 1 to 5 herein who are arraigned as original accused nos. 1 to 5.2. in view of the fact that the order challenged in this revision is an interlocutory order, this petition at the oral request of mr. patel, learned advocate for the petitioner, is permitted to be converted into a petition under article 227 of the constitution and is being disposed of as such.3. the petitioner has filed an application being miscellaneous criminal application no. 17 of 1782 before the learned trial magistrate against.....
Judgment:

S.B. Majmudar, J.

1. In this revision application, the petitioner who is the original complainant has challenged an order passed by the learned judicial Magistrate, first class, Pardi directing the P.S. I Pardi to inquire under Section 202 of the Code of Criminal Procedure, 1973 and report there after to the learned Magistrate. The said order is passed below a private complaint filed by the petitioner-complainant before the learned trial Magistrate. The said complaint is filed against respondents Nos. 1 to 5 herein who are arraigned as original accused Nos. 1 to 5.

2. In view of the fact that the order challenged in this revision is an interlocutory order, this petition at the oral request of Mr. Patel, learned Advocate for the petitioner, is permitted to be converted into a petition under Article 227 of the Constitution and is being disposed of as such.

3. The petitioner has filed an application being miscellaneous criminal application No. 17 of 1782 before the learned trial Magistrate against the concerned accused, respondents Nos. 1 to 5 herein, alleging that they were guilty of offences punishable under Sections 302, 307, 326, 325, 324, 323, 506 (2), 147, 148, 149, 34 and 114, 0. P. Code. For the present purpose, it is not necessary to mention in details various allegations made in the complaint against the concerned accused. Fact remains that various offences are alleged against the concerned accused which are triable exclusively by the court of session.

4. The short question is, when the complaint discloses such offences exclusively tribal by the court of session, what is the procedure which is required to be adopted by the learned Magistrate. The answer to this question is provided by the legislature by enacting Section 202 of the Code which reads as under:

(1) Any Magistrate, on receipt of a complainant of an offence which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made.

(a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the court of session-or

(b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200,

(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath;

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.

(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.

5. A mere look at the aforesaid provisions of Section 202 leaves no room for doubt that when it appears from the complaint filed before a Magistrate that the offence complained of is triable exclusively by a court of session, the learned Magistrate cannot direct any investigation to be made regarding the said offences but he has to inquire into these offences himself. Sub-section (2) of Section 202 of the Code read with the proviso clearly fortifies this position by enjoining upon the Magistrate in such cases to call upon the complainant to call all his witnesses and examine them on oath. In the present case, it goes without saying that the complainant does allege various offences which are exclusively triable by a court of session as offences under Section 302, 307 read with Section 114, 1. P. Code are clearly mentioned therein. Consequently the impugned order passed by the learned Magistrate is clearly contrary to the provisions of Section 20 (1) proviso and is patently illegal and without jurisdiction. On this short ground, the impugned order is required to be quashed and set aside. The learned Magistrate is directed to proceed with the complaint filed by the petitioner-complainant in accordance with law and as per the requirements of Section 20 (1) read with Section 20 (2), by holding proper inquiry in the matter himself. Before parting with the present proceedings, I must mention one salient feature. The original accused who were mentioned in the complaint of the complainant have been joined as respondents Nos. 1 to 5 herein. Notices of rule issued to them have still not been received back either served or unserved. In ordinary circumstances, that would have made this petition unready. But it is not necessary to wait for return of notices sent to the concerned accused-respondents Nos. I to 5 herein, as at the stage of inquiry order Section 202 and till process is issued to the concerned accused, the concerned accused are out of picture and they have no right to take part in the proceedings as laid down by various judgments of the Supreme Court, one of them being Chandradeo v. Prakash Chandra : [1964]1SCR639 . Rule is accordingly Made absolute.


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