M.L. Jain, J.
1. The facts of this petition are that Badri Narain Suthar reported to the police on 15.11.74 that his sister Deoki who was married to Bhanwar Lal was burnt alive by her mother in-law Kaiki and sister-in-law Narayanee on 6.11.74. She was admitted to the hospital in Phalodi but she was discharged from there and thereafter died. The police registered a case under Sections 302 and 501 I.P.C. hut after investigation submitted only a final report. This final report came up for consideration before the Judicial Magistrate, Phalodi on 19.4.75. Before giving any order on the final report, the learned Magistrate thought it proper to examine and accordingly recorded the statements of as many as 15 witnesses and then by his order dated 6.12.75, he refused to accept the final report made by the police and instead took cognizance under Section 302 I.P.C. against Mst. Narayanee rod Kaiki and under Sections 176 and 201 I.P.C. against Bhanwar Lal and four others. Before the Magistrate could commit to be case to the court of sessions this petition under Section 482 Cr.P.C. was filed in this Court by Narayanee and Kalki on 31.1.1976.
2. I have bend arguments and seen the record.
3. The final report of the police was that in the beginning the Case as put forward appeared to be that Mst. Deoki was burnt, while she was boiling milk on the stove Deoki's mother Mst. Naini alleged that her daughter was burnt by her brother-in-law and sister-in law. The police did Dot believe her story. There finding was that it was an accidental death, Dr. Suresh Chandra Mathur stated that he was called to the house of Deoki at about 3.30 p.m. He advised the patient to be removed to the hospital where she was taken and given first aid. At 4 p.m. her condition began to grow worse. He advised them to take her to Jodhpur and discharged her from the hospital. He stated that be was told by the members of Deoki's family that Deoki got burnt while working on the stove. Amini Kutti PW. 3 was the nurse attending on her and Fatima PW. 4 was the patient on the nearby bed. Both of them have said that Deoki told them that she caught fire while preparing tea on the stove. The learned Magistrate also examined the accused party but they all maintained that she got built while boiling milk. Mst. Naini, however, deposed that when she went to see her daughter in the hospital, Deoki told her that the was beaten by her husband and then was burnt by her mother in law and sister-in-law by pouring kerosene oil on her.
4. The learned Magistrate however, felt that there was on reason to disbelieve the statement of Mst. Naini. He noticed that there were contradictions in the statements of medical officer on the one hand and the nurse en the other. He also found it suspicious and intriguing that her husband Bhanwar Lal did state that an old lady bad come to hospital to see the patient but he could not say whether that woman was his mother-in-law or not. The learned Magistrate was therefore of the view that Mat. Deoki was done to death by Natayanee and Kalki and that she was cremated by Bhanwar Lal and other co-accused persons without informing the police. He therefore, took cognizance as aforesaid.
5. The learned Counsel for the petitioners submitted that after the final report was made the learned Magistrate held no authority to examine any witnesses to find out whether any offence has been committed or not. Before the new code came into force, it was perhaps possible for the Magistrate to record evidence before taking cognizance on a final report made by the police, vide Pancham Singh v. State A.I.R. 1967 Pat. 417. But as per the New Code, if a Magistrate took cognizance upon a police report whether it is a negative or a positive report, he is required to commit the case to the court of sessions if it is exclusively triable by that court. He has urged that the procedure adopted by the learned Judicial Magistrate was unusual, and not authorised by law, It was also submitted that even on merits, it was a case of no evidence.
6. I have considered. Out of the fifteen witnesses that the Magistrate examined, seven were accused persons and all were administered oath. How could they be summoned as witnesses and bow could the learned Magistrate take their statements into consideration to spell out a case for a possible prosecution I have not been able to locate any provision of the Code of Criminal Procedure under which the procedure followed by the learned Magistrate could be covered. It has caused nothing but prejudice to the accused. It is also not possible to direct that all these statements could be ignored and could not be used for any purpose. The proceedings were therefore illegal and amount to abuse of process. Having so held I need not discuss the merits of the case.
7. Consequently, I accept this application and quash the order dated 6.12.75 made by the learned lower court and all consequential proceedings pending in that court against the accused. If the complainants feel aggrieved, they may, if so advised, file a complaint in the matter.