IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16800 of 2004 DHARMENDRA NARAYAN @ BABLOO & ANR Versus STATE OF BIHAR & ANR ----------- For the Petitioners: Shri Krishna Pd. Singh, Sr. Advocate For the State : Dashrath Mehta, APP For the O.P. No. 2: Shri Chandrasen Pd. Singh, Advocate 5/ 19.8.2010 After having heard both the sides, what appears is that the order which was passed on 2.9.2002 could not have been passed by the A.C.J.M., Barh, Patna in Complaint Case no. 325 C of 2002 Barh because, on consideration of the proviso appended to section 202(2) of the Code of Criminal Procedure, the Magistrate, when finds that the offence complained of was exclusively triable by the court of Sessions, he was to call upon the complainant to produce or not to produce the witness. Then only he could have proceeded to pass an order finally to as to whether there were sufficient material or there was no sufficient material to proceed. The order passed in derogation of the above provision under section 202(2) proviso of the Cr.P.C. cannot be sustained and the same is hereby set aside. The matter is remitted back to the learned A.C.J.M., Barh with a direction to hold an enquiry in the above mentioned complaint case in the light of section 202 of the Code from the stage at which that particular order was passed. The petition is allowed in the above terms. Anil/ ( Dharnidhar Jha, J.)