- (1.) THE instant application under Section 482, Cr PC is directed against the order dated 5.5.2004 passed in P.C.R. Case No. 177 of 2003 whereby the Chief Judicial Magistrate, Jamtara had directed for issuance for summons to certain witnesses to be examined under Section 311, Cr PC during inquiry conducted by him on a protest -cum -complaint petition under Section 202, Cr PC.
(2.) IT appears that the petitioner had filed a complaint before the Chief Judicial Magistrate, Jamtara against certain accused persons under Sections 323, 365 and 367, IPC. The Chief Judicial Magistrate, after receipt of the complaint, had forwarded the same to the police for registering a case and for investigation. The police, after conclusion of the investigation, had submitted final form declaring the case to be false and had recommended for initiating a proceeding under Section 182/211, Cr PC. Thereafter, the petitioner filed a protest petition on which the learned Court below had proceeded to conduct inquiry under Section 202, Cr PC and in course of which the complainant and the witnesses produced by him, were examined on solemn affirmation. The learned Court below instead of confining the inquiry to the evidences produced by the complainant, had sought to examine other witnesses named in the case diary, or the purposes of examining them under the purported exercise of powers under Section 311, Cr PC. Assailing the impugned order learned counsel for the petitioner submits that learned Inquiry Magistrate has exceeded its powers and has made a wrong application of the provisions of Section 311, Cr PC without appreciating the fact that in the scope of Inquiry under Section 202, Cr PC. by the Inquiry Magistrate is limited to the extent of examining witnesses produced by the complainant and there is no scope for invoking the powers under Section 311, Cr PC at that stage. It is further submitted that the learned Court below has failed to appreciate that in his protest petition, the complainant had categorically stated that in collusion with the accused persons the Investigating Officer had conducted a totally unfair investigation and has recorded statements of only those persons as witnesses who were produced by the accused persons themselves in their favour. Learned counsel adds that in this manner the learned Court below has given an opportunity to the accused persons to get examined witnesses in their favour even at the stage when the case is still under inquiry and order relating to cognizance of the offence is yet to be taken by the Inquiry Magistrate. Learned counsel adds further that by passing the impugned order, the learned Court below has adopted a procedure which is unknown to the law and is, therefore, the same is thoroughly illegal and not maintainable. Learned counsel has further mentioned that earlier, the petitioner had preferred criminal revision against the same impugned order vide Criminal Revision No. 13 of 2004 before the learned Sessions Judge, Jamtara but the same was dismissed as withdrawn with a liberty to the petitioner to move before the High Court under Section 482, Cr PC.
(3.) LEARNED counsel appearing for the State has conceded that the impugned order is not in consonance with the, provisions of law and it appears that learned Court below has assumed the role of trial Court and that the learned Court below has committed an error of law while passing the impugned order.;