SANJEEV AND THREE OTHERS Vs. STATE OF UTTARAKHAND & ANOTHER
LAWS(UTN)-2013-3-138
HIGH COURT OF UTTARAKHAND
Decided on March 12,2013

Sanjeev And Three Others Appellant
VERSUS
State of Uttarakhand and another Respondents

JUDGEMENT

- (1.) By means of this petition moved under Section 482 Cr. P.C., the applicants/petitioners Sanjeev, Bittu, Sandeep Kumar and Surender Singh seek to quash the summoning order dated 09.01.2013 passed by Additional Chief Judicial Magistrate, Laksar, District Haridwar, and to quash further proceedings of criminal complaint case no. 511 of 2012, captioned as Mulayam Singh vs. Sanjeev and others, under Sections 364, 307, 384, 504 and 506 IPC, pendng in the Court of Additional Chief Judicial Magistrate, Laksar, District Haridwar.
(2.) A perusal of the impugned order makes it amply clear that only the statement of complainant Mulayam Singh was recorded under Section 200 Cr.P.C. and the statements of other witnesses, namely, Balveer, Ram Swaroop and Deshraj were recorded under Section 202 Cr.P.C. Complainant filed injury report in support of the contention that he was assaulted by the accused persons, but the complainant was not called upon to prove those injuries. Copies of the applications addressed to S.O., Laksar, C.O., Laksar and S.S.P., Haridwar were also filed on behalf the complainant. On the basis of oral evidence of Mulayam Singh, Balveer Singh, Ram Swaroop and Deshraj, the accused persons namely, Sanjeev, Bittu, Sandeep Kumar and Surendra Singh were summoned to face trial for the offences punishable under Sections 364, 307, 384, 504 and 506 IPC. The offences punishable under Sections 364 and 307 IPC are exclusively triable by the Court of Sessions. The offences punishable under Sections 384, 504 and 506 IPC are triable by the Court of Magistrate. Had learned Additional Chief Judicial Magistrate, Laksar, Haridwar summoned the accused persons as regard offences punishable under Sections 384, 504 and 506 IPC (i.e. Magistrate triable offences), there was no problem. The problem arose because the learned Magistrate summoned the accused persons to face the trial for the offences which were exclusively tribale by the Court of Sessions without asking the complainant to produce all his witnesses and examine them on oath. The said provision of law (Section 202 Cr.P.C.) is reproduced herein below for ready reference. "(1) Any Magistrate, on receipt of a complaint 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, [and shall, in a case where the accused is residing at a place beyond the area in which he excercise his jurisdiction]. 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 Sessions 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 witness 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 Court on an offer in charge of a police station except the power to arrest without warrant."
(3.) That being the situation, the impugned order cannot be allowed to sustain, in as much as, no offence punishable under Section 307 IPC may be proved without proving the injury report. The offence punishable under Section 307 IPC cannot be proved only on the strength of oral testimony of the witnesses. In other words, proving of injury report/medical report is necessary. Likewise, the complainant was also required to prove the applications submitted by him to the police authorities to indicate that he was forced to file the criminal complaint case only when the police did not take action on the basis of his application. It will be worthwhile to point out at this stage that the word used in the proviso to sub section (2) to Section 202 Cr.P.C. is "shall" and therefore a mandatory duty is cast upon him (Magistrate) to follow the same.;


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