Gour Mondal and Others Vs The State

J.N. Chaudhury, J.@mdashIn the present case arising out of Case No. 34C/81 pending in the Court of the S.D.J.M., Ghatal, the learned S.D.J.M., in an exclusively Sessions triable case initiated on a complaint after taking cognizance, issued process against the accused under Sections 147 \\ 380 \\ 436 I.P.C. without examining on oath all the witnesses of the complainant or calling upon the complainant to produce all his witnesses for such examination as was mandatory on him under the proviso to Section 202 (2) Cr.P.C. The offence u/s 436 I.P.C. is exclusively triable by the Court of Sessions. The orders of the learned S.D.J.M. being order no. 1 dated 4. 2. 81 and order no. 2 dated 5. 2. 81 out of which the present revisional application arises, make the same abandantly clear.Mr. Banerjee appearing on behalf of the petitioners relied on a Bench decision of this Court reported in 81 CWN 976 (Kamal Krishna De and others vs. State and others). The said decision has relied on a decision of the Supreme Court reported in Gurbachan Singh Vs. State of Punjab, . It is settled law that in an exclusively sessions triable case the proviso to Section 202 (2) comes into operation and it is incumbent upon the learned Magistrate to act in accordance with the same. Learned Advocate appearing on behalf of the State fairly concedes that from the records it will, in fact, appear that all the witnesses of the complainant were neither examined on oath nor did the learned S.D.J.M. call upon the complainant to produce them.

2. Accordingly, both the orders of the learned Magistrate referred to above are set aside and the proceedings are quashed. The learned Magistrate will begin from the stage prior to the issue of process and will proceed in accordance with law, in the light of the observations made above. The Rule is made absolute.

Let the records be sent back forthwith with.