Orissa High Court
Prasanna Kumar Das Alias Prasanna Das vs Sudarsan Sethy on 17 November, 1999
Equivalent citations: 2000(I)OLR37
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. One of the accused persons in ICC Case No. 58/96 has filed this application under Section 482, Code of Criminal Procedure (in short, the "Cr.P.C"), for quashing the order dated 30.5.1996, whereunder the Sub-Divisional Judicial Magistrate (in short, the "S.D.J.M."), Bhubaneswar, directed to issue process against the accused persons including the present petitioner on the ground that prima facie an offence under Section 307, India Penal Code, (in short, the "I.PC") had been made out.
2. Several points had been urged but the learned counsel appearing for the petitioner in support of his prayer for quashing the order. However, it is unnecessary to notice all such contentions as the petition is to be allowed on a short point relating to non-compliance with the provisions contained in section 202(2), Cr.P.C. There is no doubt that the allegations in the complaint petition prime facie disclosed an offence, inter alia, under Section 307,1.P.C. An offence under Section 307,1.P.C is conclusively triable by a Court of Session. As such, as per the proviso to Section 202(2), Cr.PC, a Court before deciding to issue process is required to call upon the complainant to produce all his witnesses and examine them on oath. A perusal of the order-sheet in the present case makes it clear that such provision has not been complied with. To be more specific, it appears from the order dated 20.4.1996 that one witness produced by the complainant was examined and the S.D.J.M. directed :
"............ put up on 1 5.5.1996 for further enquiry Under Section 202, Cr.P.C. Complainant to produce witnesses on the date fixed."
On the next date, i.e. on 18.5.1996, the following order was passed :
"No time, put up on 20.5.1996 for orders."
Subsequently, by order dated 30.5.1996, the SDJM decided to issue process on the ground that prima facie an offence Under Section 307, IPC had been made out. It is thus clear that though the SDJM had fixed 18.5.1996 for examination of other witnesses of the complainant, without examining any further witness, the SDJM posted the matter to 20.5.1996 for orders. As a matter of fact, the order dated 18.5.1996 makes it clear that the SDJM did not have any time to consider the present case. As such there was no occasion for the Magistrate to direct that the matter should be placed for orders regarding taking of cognisance or not. If the Magistrate did not have any time, the case was required to be adjourned to a further date in order to complete the inquiry under Section 202, Cr.P.C. It is well settled that non-compliance of Section 202(2), Proviso, vitiates the order relating to issuance of process. Accordingly, the order dated 30.5.1996 is quashed and the S.D.J.M. is directed to proceed with the inquiry under Section 202, Cr.P.C. from the stage at which it wits on 20.4.1996.
The Criminal Misc. Case is accordingly allowed. The lower Court records be sent back immediately.