Patna High Court
Ram Bilas Singh And Ors. vs Sumitra Kuer on 7 September, 1990
Equivalent citations: 1991(1)BLJR255
Author: B.N. Agrawal
Bench: B.N. Agrawal
JUDGMENT B.N. Agrawal, J.
1. This application has been filed for quashing the order dated 18.4.1990 by which the learned Sub-Divisional Judicial Magistrate has summoned the petitioners to face trial.
2. Upon filing of the petition of complaint by his order dated 20.1.1990/29.1.1990 (sic) the learned Chief Judicial Magistrate after perusal of the record made over the case to the file of Sub-Divisional Judicial Magistrate, Aurangabad for disposal under Section 192 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'New Code'). The learned Sub-Divisional Judical Magistrate upon receipt of the records examined the complainant on solemn affirmation and decided to hold an enquiry under Section 202 of the New Code, Upon completion of the enquiry he has summoned the petitioners by the impugned order. Hence, this application for quashing.
3. The only point raised on behalf of the petitioners in support of this application is that it was incumbent upon the learned Chief Judicial Magistrate to first examine the complainant on solemn affirmation before passing any order under Section 192 of the New Code. In support of his submission learned Counsel has placed reliance upon a decision of this Court by a learned Single Judge in the case of Arvind Kumar Sinha and Anr. v. State of Bihar and Anr. 1990 BBCJ p. 142 in which case cognizance was quashed upon two grounds. Firstly, on the ground that the petition of complaint did not disclose any criminal offence and secondly, on the ground that the learned Magistrate transferred the case under Section 192 of the New Code without examination of the complainant on solemn affirmation. In my view, it is not possible to follow this decision and the law laid down therein cannot be a binding precedent as the said decision is per incuriam in view of the fact that it has not even referred to an earlier decision of this Court by a Division Beach in the case of Sudama Singh v. Kavindra Narain Singh 1973 BLJR p. 66 laying down contrary law. In that case without examination of the complainant on solemn affirmation the case was transferred under Section 192 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Old Code'). The transferee court also did not examine the complainant on solemn affirmation and he directed for issuance of process against the accused. This Court maintained the order passed by the leered Magistrate, transferring the case under Section 192 of the Old Code and set aside the order of the transferee court only by which without examination of the complainant solemn affirmation he had directed for issuance of process against the accused after interpreting Proviso (a) and (c) of Section 200 of the Old Code, which run thus:
Provided as follows:
(a) When the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under Section 192.
(c) When the case has been transferred under Section 192 and the Magistrate so transferring it has already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.
4. In the case of Sudama Singh (supra) referred to above, the Division Bench after taking into consideration the aforesaid two Provisos has held that if a complaint is in writing, it is not necessary for a Magistrate before transferring the case under Section 192 of the Old Code to examine the complainant on solemn affirmation and, therefore, the Division Bench has upheld the order of transfer, but has set aside the order issuing process passed by the transferee court without examination of the complainant on solemn affirmation. In my view, though the present case is under the New Code but the ratio decided in the case of Sudama Singh (supra) in relation of the cases under the Old Code would apply to cases under the New Code also as Provisos to Section 200 of the New Code are on similar lines which read thus:
Provided that, when the complaint is made in writing the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
5. Since the language of Provisos to Section 200 of the Old Code and New Code is same in my view, the present case is squarely covered by the Bench decision of this Court in the case of Sudama Singh (supra) which is binding upon me.
6. For the foregoing reasons this application fails and is accordingly dismissed.