R.R.PRASAD, J. - (1.) THIS application filed under Section 482 of the Code of Criminal Procedure is directed against the order dated 29.7.2008 passed by learned Sessions Judge, Giridih in Cr. Rev. No. 110 of 2006 whereby learned Sessions Judge upheld the order dated 23.6.2006 whereby learned Magistrate after holding enquiry under Section 202 of the Code of Criminal Procedure did find prima facie case against the petitioners under Section 302/34 of the Indian Penal Code and thereby summoned the accused person to face trial.
(2.) LEARNED Counsel appearing for the petitioner submits that for murder of one Sunaina Devi, two cases were lodged, one by Tulsi Rai, husband of the deceased -Sunaina Devi, putting allegation against the petitioners, who are the villagers, of committing murder, whereas Sudama Singh, father of the deceased -Sunaina Devi, lodged another case, wherein he has alleged that it was the husband, namely, Tulsi Rai, who committed murder of Sunaina Devi. Subsequently, in course of investigation of a case lodged by Tulsi Rai, the police did not find allegation to be true and hence, submitted final form. Thereupon, a protest petition was filed by Tulsi Rai which was treated to be a complaint and the court below having examined Tulsi Rai on solemn affirmation put the case for enquiry and recorded the statements of four witnesses only, whereas in the protest petition more than four witnesses had been cited and on the basis of the statements made by the complainant and the witnesses, cognizance was taken though the learned Magistrate before taking cognizance was required to examine all the witnesses cited in the complaint petition and since it has not been done, the impugned order suffers from illegality. In support of his submission, learned Counsel has referred to decisions rendered in the case of Sri Jayram R. Ranjan Gud V/s. The State of Bihar and Ors. 1980 B.B.C.J. 265 and in the case of Moideenkutty Haji and Ors. V/s. Kunhikoya and Ors. AIR 1987 Kerala 184 (Full Bench)] wherein it has been held that examination of all the witnesses cited in the complaint disclosing offence being exclusively triable by the court of sessions is condition precedent for issuance of process.
(3.) IN the context of said ratio, learned Counsel appearing for the petitioners submits that the impugned order under which petitioners have been summoned under Section 204 of the Code of Criminal Procedure is quite bad as all the witnesses cited in the complaint have not been examined by the complainant before issuance of the process and hence, the order passed by the leaned Magistrate and also the order of the revisional court under which said order has been affirmed are fit to be set aside.;