IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.539 of 2007 SHAIL DEVI Versus STATE OF BIHAR & Ors. ----------- 7 1.9.2008 It appears that name of the State counsel does not appear in the cause list. 2. Let name of G.P.14, namely, Sanjay Kumar appear in the cause list. 3. In the instant writ application the petitioner prays for an appropriate direction to police personnel for complying with the direction of the learned C.J.M., Samastipur, dated 29.7.2007 for submission of a police report. 4. In my view the procedure adopted by the learned Magistrate is contrary to the provision of proviso to sub- section (2) of Section 202 of Cr.P.C. 5. The facts of the case in short are as follows:- The petitioner filed a complaint case before C.J.M., Samastipur under sections 342,323,354,364,448,376 and 511 of I.P.C. as well as 3(x) of S.C. and S.T. Act. making allegations against the accused persons of kidnapping as well as committing rape. The aforesaid complaint case was filed on 28.3.2007.The learned Magistrate vide his order dated 29.3.2007 called for a report from the office of the S.P., Samastipur, and thereafter the proceeding proceeded without any progress as the concerned report from the S.P. Office was not received. The petitioner as such has 2 prayed for an appropriate direction to the Magistrate to proceed with the complaint case. 6. Learned counsel for the State seeks time to file counter affidavit. 7. On receipt of a complaint of an offence a Magistrate has to proceed in accordance with the provisions enumerated in Chapter xv of Cr.P.C. Section 202 of Cr.P.C. provides that a Magistrate taking cognizance of an offence of complaint shall examine upon oath the complainant and the witnesses present, provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting in discharge of his official duty or court makes the complainant. Further if the Magistrate makes over the case to another Magistrate under section 192 of Cr.P.C.Section 202(1) of Cr.P.C. after examining complainant’s witnesses, the latter magistrate need not re-examine them. Further on receipt of a complaint of an offence which is not exclusively triable by court of Sessions and which a Magistrate is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit , postpone the issue of process against the accused and may resort one to three more mentioned therein (i)`he can straight way issue summons to the accused persons to face the trial (ii) he may enquire into the matter himself or (iii) he may direct an investigation to be made by a Police Officer or such other person as he thinks fit. 3 8. However, The proviso to sub section (2) of section 202 of Cr.P.C. states that in case of an offence which is exclusively triable by a court of Sessions, the court shall call upon the complainant to produce all his witnesses. The aforesaid proviso clearly does not vest power with the Magistrate to seek police report in case of an offence exclusively triable by court of Sessions.The court on the contrary has to call upon the complainant to produce all his witnesses for examination in enquiry. The offence in question is one under sections 364 and 376 I.P.C. which is exclusively triable by a Court of Session and as such procedure of enquiry will be governed by proviso to sub section (2) of Section 202 of Cr.P.C.. 8. In such factual aspects of the case, the learned Magistrate has erred in law in seeking police report in respect of offence made in the complaint case. The order of the Magistrate is in teeth of proviso to sub-section (2) of section 202 of Cr.P.C. which prohibits issuance of any direction for submission of report or investigation by Police or any other agencies and as such the order dated 29.7.07 of C.J.M., Samastipur in C.R.No.335/07 is set aside. The learned Magistrate would examine the Complainant on oath and proceed in accordance with section 200 and section 202 of Cr.P.C. as would be applicable. 9. With the aforesaid observations and directions the writ application is allowed to the extent stated above. Anilksinha (Samarendra Pratap Singh,J.)