IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28913 of 2005 1. KAMESHWAR YADAV SON OF LATE GOVIND YADAV 2. BAL MUKUND YADAV SON OF SH. KAMESHWAR YADAV 3. RAGHU NANDAN YADAV SON OF SH. KAMESHWAR YADAV 4. HARIHAR YADAV SON OF LATE LALO YADAV 5. SURRENDRA YADAV SON OF LATE MAHAVIR ALL RESIDENT OF VILLAGE + P.O.- NAWDIHA JHURANG, P.S.- FATEHPUR, DISTRICT- GAYA 6. BASUDEO YADAV SON OF LATE ETO YADAV R/O VILLAGE- HARA KHURA,P.S.- FATEHPUR, DISTRICT- GAYA 7. BALESHWAR YADAV SON OF SH. SOHAR YADAV RESIDENT OF VILLAGE- MANJHALA KALA, P.S.- FATEHPUR, DISTRICT- GAYA ……………………..PETITIONERS Versus 1. STATE OF BIHAR 2. HAIDERALI SON OF LATE WASILKHAN, RESIDENT OF VILLAGE AND POST- NAWDIHA JHURANG, P.S.- FATEHPUR, DISTRICT- GAYA ----------- For the Petitioners :- Mr. Rana Pratap Singh, Sr. Advocate Mr. Sumant Singh, Advocate Mr. Sandip Kumar Gautam, Advocate For the State :- APP For the Opposite Party No. 2 :- Mr. Hare Krishna Kumar, Advocate Mr. Ritesh Kumar Narayan Singh, Advocate Mr. Amiya Kunal, Advocate ----------------------- 17 24/02/2010 Heard Mr. Rana Pratap Singh the learned Senior Counsel for the petitioners, learned APP and Sri Hare Krishna Kumar learned counsel for the opposite party no. 2. 2. This application for quashing the order dated 2.6.2005 passed by the learned Judicial Magistrate, Ist Class, Gaya has been filed on behalf of the petitioners whereby and whereunder cognizance for the offence punishable under Sections 302,/34 and 120 B of the Indian Penal Code has been taken against the petitioners and 2 others in protest Complaint Case No. 910 of 2003 arising out of Fatehpur P.S. Case No. 18 of 2000 dated 21.2.2000 lodged by the O. P. No. 2. 3. O. P. No. 2 has given his fard beyan to the Officer-In-Charge of the Fatehpur Police Station that he is maternal uncle of Bibi Firoza Khatoon. At 9.00 A.M. on 21.2.2000 daughter of Nankhu Chaudhary came and asked Haidar Ali that when she went for playing then she noticed the blood in the house of deceased Firoza Khatoon. The O. P. No.2, namely, the informant along with Chowkidar; Chandra Dev Paswan, Sarpanch; Sajjad Khan and villagers went to the house of Firoza Khatoon and found that the door was open and dead body of Firoza Khatoon was lying. The body was having mark of violence upon the forehead. Rafique Khan was married with Firoza Khatoon two years earlier but later on both started living separately. Six months prior to the occurrence Firoza Khatoon married with Baleshwar Yadav. Firoza Khatoon has come to the village along with her husband Baleshwar Yadav. On 16.2.2000 two days thereafter, Baleshwar Yadav went to offer his prayer in the masque and on return some hot discussion occurred with petitioner no. 5 Surendra Yadav. While O. P. No. 2 was returning at 9.30 P.M. on 20th February, 2000 then he noticed accused persons talking among themselves that the task has been accomplished. The informant learnt in the 3 next morning about killing of Firoza Khatoon so the hands of the accused persons were suspected. In course of investigation the I. O. recorded the statement of Baleshwar Yadav under Section 164 Cr.P.C. wherein he stated that the informant and his gang men have assaulted his wife Firoza Khatoon @ Savita Devi by sharp cutting weapon and thereafter, the informant and others have taken Baleshwar Yadav towards secluded site. After investigation the police submitted final form and Chargesheet was submitted against the informant of the case and others including Maidun Khan, Jabbar Khan, Sajjad Khan and Baleshwar Yadav. Haidar Ali, Maidun Khan, Jabbar Khan and Baleshwar Yadav were exhibited as absconder in the Chargesheet. The informant was sought to be prosecuted under Section 182 and 211 of the Indian Penal Code. When the Chargesheet was under way then the informant has filed a protest petition before the learned Chief Judicial Magistrate on 22.12.2000 in connection with Fatehpur P.S. Case No. 18 of 2000 which was numbered as Complaint Case No. 910 of 2003. In that case name of Baleshwar Yadav was shown as one of the accused. The first information report, Chargesheet, case diary and records were perused and cognizance for the offence punishable under Sections 302/34,1209 B of the Indian Penal Code was taken against the informant, namely, Haidar Ali and others by the learned Chief Judicial 4 Magistrate. The order dated 14.3.2001 by which cognizance was taken was challenged before this Court in Cr. Misc. No. 3960 of 2002 and this Court remitted the matter by order dated 11.9.2002 to verify the records and it was observed that if any protest petition was filed then to enquire as to whether necessary notice was given to the informant or not and only then the order of cognizance was to be passed. It was also observed that if the protest petition was pending then the cognizance would be deemed to have been set aside and the fresh order was to be passed after hearing the informant and considering the facts and circumstances of the case. 4. After receipt of the order of this court the learned C.J.M. verified the records and noticed that a protest petition filed by Haidar Ali was pending. After having gone through the records again cognizance against the informant and others was taken. Thereafter, the informant moved this Court against the order of a cognizance by filing Cr. Misc. No. 30902 of 2003 which was dismissed as withdrawn on 14.7.2004. Thereafter, trial of O.P. No. 2 and others commenced and two witnesses were examined in Sessions Trial No. 144 of 2002. 5. Further facts of the case is that the learned C.J.M. vide order dated 11.7.2003 directed to register the protest complaint as Complaint Case lodged by Haider Ali 5 and accordingly Complaint Case No. 910 of 2003 was registered. In that Complaint Case the complainant was examined on S.A. In course of inquiry under Section 202 Cr.P.C. Haidar Ali, Saleem Khan, Safayat Khan, Rafiq Khan, Shaligram Prasad and Md. Nayeem Khan were also examined as witnesses and thereafter, cognizance was taken. 6. The petitioners have challenged the order on the ground that the implication is on account of enmity which is apparent from the fact that Fatehpur P.S. Case No. 39 of 2000 under Sections 364, 120 B of the Indian Penal Code was registered on the basis of complaint of Sri Yadav-brother of Baleshwar Yadav. In that case Haidar Ali and Sajjad Khan were named accused and they faced Sessions Trial 12 of 2002 and were convicted by the trial court and in Fatehpur P.S. Case No. 50 of 1998 under Section 302 of the Indian Penal Code lodged by one of the petitioners in connection with murder of Mahavir Yadav-brother of Harihar Yadav, Haidar Ali and other persons were accused and they were facing trial. On that basis it was argued that the petitioners’ implication was on account of series of enmity. 7. Learned counsel for the petitioners has argued that the order taking cognizance is bad because all the witnesses named in the complaint were not examined and this order is in violation of the mandate of the Apex Court as 6 well as Code of Criminal Procedure. Learned counsel for the petitioners has relied upon proviso 2 of Section 202 Cr.P.C. that in an inquiry the Magistrate has to examine all the witnesses on oath. This has not been done in the present case and so the order impugned is bad. 8. On the other hand learned counsel appearing on behalf of the opposite party no. 2 has submitted that it is not incumbent upon the Magistrate to examine all the witnesses rather the Magistrate has to examine the witnesses produced on behalf of the complainant so that he could come to the satisfaction as to whether there is material to proceed against the accused persons. 9. Section 202 Cr.P.C. is reproduced below:- “Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he 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 either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable 7 exclusively by the Court of Sessions; or (b) where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. 2. In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” 10. In a case triable exclusively by the Court of Sessions, if the Magistrate proceeds without examining all the witnesses then the accused can validly object to that but a trial is not vitiated due to non-compliance of Section 202 (2) proviso. The scope of inquiry under Section 202 (2) Cr.P.C. is not intended to take the place of a trial as the object is not to see as to whether the accused is guilty or not, the purpose of inquiry is only to ascertain whether there is 8 sufficient evidence of a prima face case upon which the proceeding should commence. This is the core object of Section 202 Cr.P.C. Complainant cannot be prevented from bringing all the witnesses. He must get opportunity to substantiate his complaint by the evidence of his choice and the witnesses of his choice, if the complainant is willing to examine the witnesses then the Court has to record. 11. This Court in a Division Bench Judgment rendered in the case of Naresh Singh and 2 others Versus The State of Bihar reported in 1988 PLJR 216, had occasioned to consider the scope of Section 202 (2) proviso and it has been held that “law requires Magistrate to call upon complainant to produce all his witnesses and examine them on oath, if so produced- it is not obligatory on the part of the Magistrate to wait till all the presence of the witnesses named in the complaint petition is secured- if the complainant failed to produce all his witnesses, Magistrate will be justified in proceeding to consider the question as to whether complaint petition should be dismissed or accused should be summoned on basis of the materials on record.” It was also held in the aforesaid judgment that the Magistrate has to apply his mind only to materials produced in the complaint case. In another Division Bench judgement in the case of Smt. Nagawwa Versus veeranna Shjivalingappa Konjalgi and Others reported in (1976) 3 9 SCC 736, the Hon’ble Supreme Court considered the scope of Section 202 Cr.P.C. and was pleased to hold that the scope of inquiry under Section 202 Cr.P.C. is extremely limited and limited to the ascertainment of the truth or falsehood of the allegations made in the complaint – (i) on the materials placed by the complainant before the Court; (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It has also been held that in proceeding under Section 202 Cr.P.C. the accused has got absolutely no locus standi to be heard on the question as to whether the process should be issued against him or not. 12. In the case in hand, it appears that the Magistrate has considered the facts brought on record and after considering the statements of the witnesses and other facts and circumstances, came to the opinion that there were sufficient grounds to proceed with the case against the accused persons under Section 302/34 and 120B of the Indian Penal Code. The legal requirements were fulfilled in the facts and circumstances of the case. Therefore, I am in agreement with the submission of the learned counsel for the opposite party no. 2 that the impugned order is correct and the objection of the learned counsel for the petitioners does 10 not stand. In view of the clear legal position and in view of the facts and circumstances, this application is held to be without merit. It is accordingly, dismissed. avin (Shyam Kishore Sharma, J.)