IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39679 of 2010 SOMENDRA JHA Versus THE STATE OF BIHAR & ORS ----------- 2. 10.11.2010. Heard. As regards the order dismissing the petition of complaint the court does not find any demerit in that order and as such the petition appears of no merit. However, the court is concerned about one aspect of the order passed by Sri A.K.Thakur, Judicial Magistrate, Ist Class, Sitamarhi in Complaint Case No.1957 of 2009 when he was issuing a notice to show cause against the complainant for being tried under Section 344 of the Cr.P.C. If the learned Magistrate before proceeding to direct issuance of the notice to show cause against the complainant(petitioner)had simply considered the language of the provisions of Section 344, he could have appreciated that the summary trial could be held only when some one had given “false evidence”. This might have raised a question before the court as to what was the meaning of „evidence‟. If the learned Magistrate had considered the provisions contained in Section 200 Cr.P.C. he could have found that he was simply 2 to examine the complainant and the witnesses, if present, upon oath and reduce such examination into writing. If he would have considered this provision and had pondered over it to find out as to whether such recording of the statements of the complainant or his witnesses could be treated as evidence, then he could have found that it might be a statement on oath but because the witness or the complainant had not been subjected to cross-examination, their mere statements could not be classified as evidence. It might be true that the statements of the complainant and the witnesses had been recorded by a Judicial Magistrate on oath, but the proceeding was yet to reach the stage of a judicial proceeding, as no order of summoning had been passed against the accused to appear before the court below for reply to a particular charge. If the learned Magistrate could consider the definition of judicial proceeding which is contained in Section 2(i)he could find that a proceeding could be a judicial proceeding only in the course of which evidence is or may be legally taken on oath. The term „enquiry‟ has been defined again by the Cr.P.C. in Section 2(g)as meaning every inquiry, other than a trial conducted under this Code by a Magistrate 3 or court. Thus, an enquiry is not a trial and in that case any material which could be collected for passing a judicial order on the merits or truthfulness of the allegations of the complaint petition, there could not be any recording of evidence. The court believes that the mere statements of witnesses which could be recorded during the enquiry held under Section 202 of the Cr.P.C. would never be termed as evidence and in that case if the statements are false the same cannot be said to be “false evidence” and as such that particular direction appears uncalled for. That part of the order is hereby quashed and any miscellaneous proceeding which could have been initiated as per the direction of the learned Magistrate shall stand quashed. B.Kr. ( Dharnidhar Jha,J.)