RAJENDRA BHARDWAJ Vs. ASHA VERMA
LAWS(UTN)-2013-3-149
HIGH COURT OF UTTARAKHAND
Decided on March 12,2013

RAJENDRA BHARDWAJ Appellant
VERSUS
Asha Verma Respondents

JUDGEMENT

- (1.) By means of this petition moved under Section 482 Cr. P.C., the applicant/petitioner Rajendra Bhardwaj seeks to quash the summoning order dated 03.08.2012 and entire proceedings of criminal complaint case no. 260 of 2012 captioned as Asha Verma vs. Dhan Singh & others, under Sections 323, 504, 506, 376/511 IPC pending in the Court of Civil Judge (J.D.)/Judicial Magistrate, Haridwar.
(2.) A perusal of the impugned order makes it amply clear that only the statement of complainant Smt. Asha Verma was recorded under Section 200 Cr.P.C. and the statements of other witnesses, namely, Gulab Singh and Jagpal were recorded under Section 202 Cr.P.C. A copy of medical examination of Asha Verma was filed with the complaint, but such medical report dated 06.06.2012 was not called upon to prove. Copies of the applications addressed to S.O., Shyampur and S.S.P., Haridwar were also filed on behalf the complainant but the same too were not called upon to prove. On the basis of oral evidence of Smt. Asha Verma, Gulab Singh and Jagpal, the accused persons namely, Dhan Singh, Rajendra and Vijendra were summoned to face trial for the offences punishable under Sections 323, 504, 506 and 376/511 IPC. The offence punishable under Sections 376/511 IPC is exclusively triable by the Court of Sessions. The offences punishable under Sections 323, 504, 506 IPC are triable by the Court of Magistrate. Had learned Judicial Magistrate, Haridwar summoned the accused persons in connection with offences punishable under Sections 323, 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 offence which was 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 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, 1[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 376 IPC may be proved without proving the medical report. The offence punishable under Section 376 IPC cannot be proved only on the strength of oral testimony of the witnesses. In other words, proving of 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 to follow the same.;


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