VISHNU CHANDRA GUPTA, J. - (1.) HEARD learned counsel for the petitioners and learned A.G.A. for the State. None appeared on behalf of opposite party no.2 inspite of sufficient service of notice as per Office report dated 19.08.2014.
(2.) BY means of this petition, under Section 482, Cr.P.C., the petitioners have prayed for quashing the summoning order dated 05.08.2013 passed by learned Additional Chief Judicial Magistrate, Court No.4, Hardoi passed in Complaint Case No.1922 of 2011 (Smt. Bitana Vs. Bhaina and others), under Sections 452, 376, 504, 506 IPC and Section 3(2)(5) of SC/ST Act, Police Station Atrauli, District Hardoi and also for quashing proceedings of Complaint Case No.1922 of 2011 (Smt. Bitana Vs. Bhaina and others), under Sections 452, 376, 504, 506 IPC and Section 3(2)(5) of SC/ST Act, Police Station Atrauli, District Hardoi pending in the court of learned Additional Chief Judicial Magistrate, Court No.4, District Hardoi.
(3.) BRIEF facts for deciding this petition are that opposite party no.2 -Smt. Bitana filed a Complaint having No.1922 of 2011, under Sections 452, 376, 504, 506 IPC, Police Station Atrauli, District Hardoi before learned Additional Chief Judicial Magistrate -IV, District Hardoi with the allegation that the petitioners committed rape upon her on 13.10.2011 at about 7:00 P.M. The complainant -opposite party no.2 also mentioned the name of Smt. Maharaja, Vishram and Chhotakkey as witnesses, who saw the incident. She herself medically examined on the same day at District Hospital, Hardoi. Thereafter, learned Magistrate after recording the statements of complainant under Section 200, Cr.P.C. on 30.11.2011 and her witnesses, namely, Vishram and Smt. Maharaja on 18.05.2012, summoned the petitioners vide order dated 05.08.2013 under Sections 452, 376, 504, 506 IPC and Section 3(2)(5), SC/ST Act to face trial. Aggrieved by the order dated 05.08.2013, the present petition has been filed by the petitioners. It has been contended by learned counsel for the petitioners that the proviso to Section 200(2), Cr.P.C. has not been complied with by learned Magistrate, which requires that if it appears to the Magistrate that the offence complained of is triabal exclusively by the court of session, he shall call upon the complainant to produce all his witnesses and examine them on oath. On the strength of this provisions, it has been submitted that the entire witnesses named in the complaint has not been examined under Section 202, Cr.P.C. and the order of summoning is bad as the petitioners have been summoned under Section 376 IPC, which is exclusively triable by the court of session.;