A.N. Banerjee, J.
1. This Rule is for quashing of a proceeding pending in the Court of the learned Sub-Divisional Judicial Magistrate, Arambag and also for setting aside the order dated 28-3-1977 passed by him.
2. It appears that on 17-1-1977 the opposite party filed a petition of complaint against the petitioners, who are fourteen in number, alleging that after forming themselves into an unlawful assemly being armed with deadly weapons they trespassed into her house on 14-1-77 and after abusing her and her son, who was not present, and after assaulting her took away certain quantity of paddy worth about Rs. 250/-. The learned Sub-Divisional Judicial Magistrate took cognizance on the basis of such complaint and was of the view that since the offences complained of under Sections 395/397 of the Indian Penal Code which were triable exclusively by the Court of Session, he was adopting the procedure laid down under the proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure. Accordingly, he called upon the complainant to produce all her witnesses for examination on the same day that is to say 17-1-1977. He examined the complainant and six of her witnesses who were present and thereafter issued process under Sections 395/397 of the Indian Penal Code against the accused petitioners. The accused petitioners along with others surrendered by petition and they were granted bail. Subsequently, they filed an application before the learned Magistrate for an order of discharge in their favour. This was rejected by the learned Magistrate by his order dated 28-3-1977. Thereafter the petitioners moved this Court and obtained the present Rule,
3. Heard the learned Advocates of the respective parties. It appears that although the learned Magistrate was conscious that in view of the nature of the offences as disclosed in the complaint he was required to follow the procedure laid down in the proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure he did not choose to follow such procedure but adopted a procedure of his own. It would appear that he has recorded the evidence of 7 witnesses almost in identical language giving in brief the essential ingredients of an offence under Sections 395/397 of the Indian Penal Code. In other words the learned Magistrate wanted to record their evidence in a manner which would only indicate the essential ingredients of an offence under Section 395/397 of the Indian Penal Code shorn of any further details. I am afraid, it was not the purpose of the proviso to Sub-section (2) of Section 202 of the Code of Criminal Procedure that a Magistrate would have to record the substance of the evidence only Which would go to establish the ingredients of an offence. Had the learned Magistrate been a little more careful, which he should have been, he would have noticed the difference in the language of Section 200 and the proviso to 6ub-section (2) of Section 202 of the Code. Under Section 200 of the Code a Magistrate taking cognizance of an offence on a complaint is required to examine on oath the complainant and the witnesses present, if any, and to record in writing the substance of such examination. But In an enquiry under the proviso to Sub-section (2) of Section 202 of the Code there is nothing which would justify a Magistrate holding such an enquiry to record the substance of the evidence adduced before him. If he does so, he acts arbitrarily and illegally. Such an arbitrary act of the learned Magistrate may seriously prejudice an accused and also put the Sessions Court into an embarrasing position. It is to be remembered that before a Sessions Court the accused can claim for an order of discharge. The learned Sessions Judge is to consider the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, he may discharge an accused if there is no sufficient ground for proceeding against him. But if the Magistrate chooses to hold an enquiry under the proviso to Sub-section (2) of Section 202 of the Code in the manner it was done in the present case, it may deprive both the accused and the Sessions Court from proceeding in accordance with the provisions of Sections 227 and 228 of the Code. I am, therefore, of the view that non-conformance to the mandatory provisions to proviso to Sub-section (2) of Section 202 of the Code by the learned Sub-Divisional Judicial Magistrate, Arambag has rendered hi3 order issuing processes against the accused petitioners and others and all subsequent orders without jurisdiction and as such the matter must go back to him with a direction to proceed in accordance with the provisions of law and in the light of the observations as made above from the stage case reached prior to the issue of the processes against the accused persons.
4. Accordingly, the Rule is disposed of in the light of the observations and directions as made above.
5. Let the records go down as quickly as possible.