Meena Devi and Others vs The State of Bihar and Others

I.P. Singh, J.—This is an application filed u/s 482 of the Code of Criminal Procedure 1973 (in short ''the Code''). It has come up for admission.

This application has been filed for quashing the order dated 28.11.2002 passed by the learned Sub Divisional Judicial Magistrate, Dalsingsarai by which he took cognizance of the offence u/s 302 of the Indian Penal Code on the basis of a belated protest petition filed by the opposite party No. 2. and also ordered for issue of summons.

It appears that opposite party No. 2 (complainant) had lodged a written report on 1.11.1994 with Ujjiarpur police station on the basis of which Ujjiarpur P.S. Case No. 122 of 1994 dated 1.11.1994 was registered u/s 328 of the Indian Penal Code and later on, on 1.3.1995 the case was also registered u/s 302 of the Indian Penal Code. The allergens made by the informant were that he inspected that the Petitioner, Sita Ram (sic)ahto, had administered poison to his father Dhorai Mahto as a result of which he field. In the course of investigation several witnesses had supported the case of the absolution. Ultimately the police submitted final form holding that no body sported the suspicion of the informant that Sita Ram Mahto had administered poison (sic) his father, Dhorai Mahto. Subsequently on 28.9.1999 the informant filed a protest petition against this final form submitted by the police. In this protest petition he had produced some more names. This protest petition was treated to be a complaint petition and the complainant was examined on solemn affirmation on 25.9.2000. After 7 years of the alleged occurrence P.Ws. 1, 2 and 3 were examined in an inquiry u/s 202 of the Code but would appear that none of them were (sic)ye witnesses of the alleged occurrence. The learned Magistrate while holding enquiry u/s 202 of the Code had at complied with its mandatory provision (sic)ating to the committal enquiry in a case inclusively tribal by the court of session (sic)d he has not examined all the witnesses (sic) did he call upon the complainant to produce them. On these grounds amongst (sic)ers it has been contended the impugned (sic)cler be quashed.

The parties have been heard at (sic)oth with respect to the present application. I have perused the impugned order (sic) in which the learned Judicial Magistrate had examined the evidence of three witnesses examined by him in course of the enquiry. He came to the conclusion (sic) a prima facie case u/s 302 the Indian Penal Code has been made after examining the post mortem extension report, viscera report and the defence on record. He, accordingly, ordered for issue of summons against the accused persons who are the present Petitioners.

At the time of hearing it has been pointed out that the impugned order is also liable to be quashed inasmuch as the learned Magistrate has not followed the mandatory provision of law as contained in Section 202(2) of the Code. This sub section runs as follows:

202 (2) -In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:

Provided that if it appears to the Magistrate that the offence complained of is tribal exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

It has been submitted before me on behalf of the Petitioners that since this mandatory provision of law has not been them on oath. It has been further contended that since all the witnesses have not been examined by the learned Judicial Magistrate as per the mandate of proviso to Section 202(2) of the Code, the impugned order is liable to be quashed. In this connection my attention has been drawn to the case of Rosy and Another Vs. State of Kerala and Others, In this decision it has clearly been held that non-compliance with proviso to Sub-section (2) of Section 202 does not vitiate trial unless prejudice is proved to the accused. In other words it has been held that though the word "shall" has been favour of the prosecution. Relying on this decision of the Hon''ble Supreme Court the learned Single Judge (S.K. Chattopadhyaya, J.) in the case of Amirka Thakur and Others Vs. State of Bihar and Others has held that in a case exclusively tribal by the court of session the Magistrate should examine all the witnesses named in the complaint petition. However, he has further held that proviso of Section 202(2) is not mandatory and non-compliance with the same will not vitiate the order taking cognizance. From the aforesaid it would appear that though the word "shall" has been used in he proviso to Sub-section (2) of Section 202, it has not been held to be mandatory so that non-compliance of this provision will result in the order taking cognizance vitiated. Since the offence as alleged is punishable with death or imprisonment for life there would be no bar to taking of cognizance in this case, in term of Section 468 of the Code.

From the detailed discussions made above it becomes perfectly clear to me that there is no merit in this application and it is not fit for admission. It is, accordingly, rejected.