- (1.) The main and clinching issue springing for determination is whether it was open to the committal Magistrate to launch on a process of meticulous examination of the evidence adduced by the complainant under Section 200 and 202, Cr. P. C., if the case is triable by a Court of session?
(2.) This issue arises in the following circumstances- (i) An FIR was instituted by the complainant petitioner (for short the complainant with the Police Station Ramgarh, Distt. Alwar against the accused non-petitioners Nos. 2 to 4 along with Fateh Singh and Mangtu Ram (Fateh Singh and Mangtu Ram died during pendency of the proceedings) for offences under Sections 447, 147, 149 and 436, IPC. After usual investigation the police laid final report. The complainant submitted protest petition and examined himself and his witnesses under Sections 200 and 202, Cr. P. C. Learned Court of Additional Chief Judicial Magistrate No. 2, Alwar vide its order dated October 26, 1991 dismissed the petition and accepted the final report on the ground that witnesses named in the FIR were not produced by the complainant. It was also observed by the learned Magistrate that the complainant in his statement under Section 200, Cr. P. C. did not name those witnesses who were named in the FIR. Therefore, the introduction of witnesses in the statement under S. 200, Cr. P. C. is an after-thought. It was further observed in the order that accused Fateh Singh had already instituted FIR No. 148/89 under Ss. 147, 148, 149, 447, 436, 323, 324 and 307, IPC against the complainant and the witnesses who were examined u/S. 202, Cr. P. C. Evidently, these witnesses gave false statements in order to save themselves from the cross case. Therefore cognizance could not have been taken against the accused persons. (ii) Complainant assailed the order of the Magistrate by filing revision. Learned Court of Additional Sessions Judge No. 3, Alwar vide its order dated January 21, 1998 dismissed the revision petition and confirmed the order of Additional Chief Judicial Magistrate No. 2, Alwar. (iii) Powers under Section 482, Cr. P. C. have been invoked by the complainant seeking quashing of the orders of ACJM No. 2, Alwar and Additional Sessions Judge No. 3, Alwar.
(3.) Mr. S. R. Bajwa, learned Senior Counsel appearing for the complainant vehemently canvassed that offence under Section 436, IPC is exclusively triable by Court of Sessions and it was obligatory for the ACJM to send the case for trial to the Court of session. The evidence was not required to be meticulously examined. Reliance was placed on AIR 1986 SC 1780 and 1992 Cri LR (Raj) 116 : (1993 Cri LJ 1274).;