Tilte and citation
In decision by Supreme court in Shivjee Singh v Nagendra Tiwary & Ors AIR 2010 SC 2261, the court has placed that the Proviso to Section 202(2) is not a condition precedent for taking cognisance and issue of process against the persons named as accused in the complain and non examination of all thereof will not vitiate the proceeding. In this case, the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions is the question which arises for consideration in this appeal filed against order dated 18.4.2007 passed by the learned Single Judge of Patna High Court in Criminal Miscellaneous Petition No. 1778 of 2007 whereby he remitted the case to Chief Judicial Magistrate, Saran with the direction to make further inquiry and pass appropriate order in the light of proviso to Section 202(2) of the Code of Criminal Procedure (Cr.P.C.). Ratio Decidendi:
Proviso to Section 202(2) is not a condition precedent for taking cognisance and issue of process against the persons named as accused in the complain and non examination of all thereof will not vitiate the proceedings. Facts of the case (in brief )
The Shivjee Singh (appellant's) son, Ajay Kumar Singh is said to have been killed by respondent Nos. 1 to 4 on 1/2.1.1997. The appellant lodged First Information Report on the same day at Police Station, Isuapur. After conducting investigation, the police submitted final form on 3.9.1998 with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition accusing the police of not conducting the investigation properly due to political pressure and prayed that the accused persons be summoned and punished. By an order dated 3.9.2002, the learned Judicial Magistrate accepted the final form submitted by the police but, at the same time, directed that the protest petition be registered as a separate complaint. He also directed the complainant (appellant herein) to produce his witnesses. The appellant examined himself and two out of four witnesses cited in the protest petition-cum-complaint but gave up the remaining two witnesses because he thought that they had been won over by the accused. After considering the statements of the appellant and two witnesses, Chief Judicial Magistrate, Saran passed an order dated 13.12.2006 whereby he took cognizance against respondent Nos. 1 to 4 for offence under Section 302 read with Section 120B Indian Penal Code and Section 27 of the Arms Act and directed issue of non bailable warrants against them. The respondents challenged the order of the Chief Judicial Magistrate by filing a petition under Section 482 Cr.P.C. The learned Single Judge accepted their contention that the Chief Judicial Magistrate could not have taken cognizance against them without requiring the appellant to examine all the witnesses and remitted the matter to the concerned court for passing appropriate order after making further inquiry in the light of proviso to Section 202(2) Cr.P.C. Issues:-
Allegations by appellant
The appellant argued that proviso to Section 202(2) Cr.P.C. is not mandatory in character and the High Court committed serious error by remitting the matter to the Chief Judicial Magistrate for further inquiry only on the ground that all the witnesses named by the appellant had not been examined That non-examination of two witnesses cited in the protest petition- cum-complaint did not preclude the Chief Judicial Magistrate from taking...