MOHD.YAMIN, J. - (1.) BY this petition under Section 482 Cr.P.C, the petitioners have challenged the order framing charges against them for offences under Sections 147, 148, 323, 324/149, 427 and 395 IPC by the learned Additional Sessions judge, Deeg by his order dated 27.3.2000. They have also challenged the orders dated 10.3.2000 and 15.3.2000.
(2.) THE factual matrix of the case is that it was alleged that on 10.3.1988 at about 10.00 am. when the informant Rajendra prasad was sitting at his shop in company of his brothers Hotilal, Kanhaiyalal and Dharmendra, the accused persons namely Chhaju Khan, Bannu Khan, Nasru Khan, Zakir Khan, Mumrej Khan, Razak Khan, Kallu, Nannu, Ramesh Mishtri and four others who were unknown came to the shop. Nasru khan was armed with a pistol while Mumrej had a farsa and the rest had lathies and jellies. All of them came and opened assault with an intention to kill. Mumrej dealt a blow on the person of Hotilal resulting an injury on his head. Hotilal is the real brother of complainant who was present at the shop at the relevant time. The rest of the brothers who were present at the shop were also assaulted by all of the above -named persons. They all received injuries. The accused persons took away a sum of Rs. 600/ - along with some papers which were lying in the cash box. The case box itself was taken away. The showroom (shop) was also damaged resulting in glass pieces falling in the sweets lying there, rendering the sweets to be useless. A case was registered under various sections. On the other hand accused petitioner Rujjal also got registered a case against the complainant party for offences punishable under Sections 147, 148, 149, 323, 324, 427 and 379 IPC. After due investigation chargesheets were submitted in both the cross cases. In the present case against the petitioners, no chargesheet was submitted against Bashir, Babu, Sultan and Rujjal and the chargesheet was submitted against other accused petitioners for offences under Sections 147, 148, 149, 323, 324 and 427 IPC. The complainant party was aggrieved at the hands of the investigating agency and submitted a protest petition seeking addition of Section 395 IPC. At the same time, another application also come to be filed by complainant Rajendra Prasad seeking for re -addition of accused petitioners Babu, Bashir, Sultan and Rujjal on account of their names being dropped from the list of the accused persons by the investigating agency. The learned Magistrate while deciding above -mentioned application and protest petition re -added Sultan, Babu, Bashir and Rujjal as accused persons and also took cognizance for the offence under Section 395 IPC. Then he committed the case to the Court of Sessions and the learned Additional Sessions Judge framed charges including the charge under Section 395 IPC against all the accused petitioners.
(3.) LEARNED counsel for the petitioners submitted that the learned Magistrate committed grave error by taking cognizance for offence under Section 395 IPC as also re -adding the names of Babu, Bashir, Sultan and Rujjal without complying with the procedure laid down under Chapter XV of the Code of Criminal Procedure. He drew my attention to Section 202 Cr.P.C. which is as follows: 202. (1) Any Magistrate, on receipt of a complainant of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, 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 Session; 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 witnesses 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 Code on an officer in charge of a police station except the power to arrest without warrant. It is provided under Sub -section (2) of this section 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. ;