- (1.) UMESHWAR Pandey, J. Heard learned Counsel for the petitioners, learned A. G. A. and the learned Counsel appearing for the complainant.
(2.) THIS petition under Section 482 Cr. P. C. is directed against the order of Magistrate dated 22-12-2004 and also against the order dated 11-7-2005 passed by the Addl. Sessions Judge in his revisional jurisdiction. An F. I. R. was lodged from the side of the Respondent No. 2 against the petitioners imputing allegations against them of the offences punishable under Sections 457, 380 and 436 I. P. C. It was stated in the F. I. R. that the accused persons in the morning of 18-2-2003 came to informant's shop with burning Mashal and took away all the articles kept therein and thereafter set fire to it. On these allegations, the police registered a case under those offences and investigated the matter. Investigation concluded and the police submitted final report whereupon the Respondent No. 2 preferred protest petition before the Magistrate who treating it a criminal complaint called upon the complainant to adduce evidence. The complainant examined himself under Section 200 Cr. P. C. and also examined his brother Vinod Kumar under Section 202 Cr. P. C. and closed the evidence. It was thereafter that the impugned order dated 22-12-2004 was passed by the Magistrate taking cognizance in the matter and summoning the petitioners-accused for further proceedings. This order of the Magistrate was challenged in revisional jurisdiction before the Sessions Judge in Criminal Revision No. 100 of 2005. It was dismissed, vide impugned order dated 11-7-2005 by the Addl. Sessions Judge. The learned Counsel appearing for the petitioners has submitted that in the present matter the Magistrate has committed initial mistake of procedure rendering his order to summon the accused and proceed with the case, as wholly illegal and untenable in law. It is not a case in which the Magistrate has straightway taken cognizance of the case under Section 190 (b) of the Code of Criminal Procedure, but instead, he had proceeded under Chapter XV of the Code and treated the protest petition of the respondent as a criminal complaint and the cognizance has been taken under Section 190 (a) of Cr. P. C. In such criminal complaint the proviso appended to sub-section (2) of Section 202 Cr. P. C. requires that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. The learned Counsel, thus, emphasized that in the present case the Magistrate did not examine all the witnesses whose names were disclosed either in the F. I. R. or in the complaint, but has simply examined himself and his brother. This procedure adopted by the Magistrate is faulty in view of the aforesaid proviso of sub-section (2) of Section 202 of the Code.
(3.) REPLYING to the aforesaid piece of argument, the learned Counsel representing Respondent No. 2 has submitted that non-compliance of the proviso to sub-section (2) of Section 202 Cr. P. C. by the Magistrate does not vitiate the case nor the further trial unless such non-compliance prejudices the accused, as such. The mandate of the proviso is not absolute. He has also submitted that the enquiry envisaged in Chapter XV of the Code is discretionary only. Such enquiry is not an indispensable course for issue of process against the accused. In this context the learned Counsel has placed reliance on the case of Rosy & Anr. v. State of Kerala & Ors. , 2000 (1) JIC 815 (SC) : 2000 (40) ACC 444 (SC ). As from the narrated facts it is obvious that the criminal complaint case since it also relates to the offence punishable under Section 436 I. P. C. it is a case exclusively triable by a Court of Sessions. The proviso attached to sub-section (2) of Section 202 Cr. P. C. reads : "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. ";