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2007 DIGILAW 909 (MAD)

V. Kandasamy & Others v. Dakshinamoorthy

2007-03-12

R.REGUPATHI

body2007
Judgment :- This is a petition seeking to quash the proceedings, a private complaint, for an offence punishable under Sections 147, 148, 203, 341, 447, 427, 343, 336, 307 and 294(b) and 506(ii) IPC. 2. The learned counsel for the petitioner submits that in the said complaint, three incidents, which took place, on 30.1.2003, 2. 2003 and 12. 2003, have been clubbed together in a single case, and secondly, the learned Magistrate, before issuing process to the petitioner/accused, has not examined the witnesses produced. 3. On the basis of the allegation, prima facie, the offence is liable to be committed to the Court of Sessions. To assess such availability of materials, the learned Magistrate should have examined the complainant and other witnesses either before taking cognizance of the case himself or taking up further proceedings for committal to the Court of Sessions, as contemplated under Section 202(2) Cr.P.C. Section 202(2) Cr.P.C., reads as follows: "Sec.202(2). In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. 4. It is submitted that the procedure contemplated under Section 202(2) Cr.P.C. has not been adopted by the learned Magistrate before issuing process to the petitioner/accused. Unless such a procedure is followed by the learned Magistrate before issuing summons to the accused, such issuance of summons is erroneous and in such circumstances, sought for quashing of the entire proceedings. 5. Per contra, the learned counsel for the complainant/respondent would submit the complainant/respondent is willing to produce all his witnesses before the learned Magistrate and on assessment of the materials, the learned Magistrate may proceed with the case in accordance with law. 6. I have perused the materials available on record and heard the submissions put forward by the learned counsel on either side. 7. Though it has been contended that three incidents have been clubbed together in one case, it cannot be claimed that there are irregularities in filing such a complaint, clubbing together three incidents. As per Section 219 Cr.P.C., three offences of same kind within year may be charged together. Under such circumstances, I do not find any irregularity in filing of the private complaint. As per Section 219 Cr.P.C., three offences of same kind within year may be charged together. Under such circumstances, I do not find any irregularity in filing of the private complaint. However, the learned Magistrate ought to have recorded the statement of the complainant and other witnesses produced before him, before taking cognizance of the case either himself, or if materials available, to commit the case to the Court of Sessions. Since such a procedure contemplated under the Act is not adopted, I find, it is a fit case for quashing the process issued by the learned Magistrate, without disturbing the pendency of the private complaint. Accordingly, the process issued to the learned Magistrate is quashed. However, the learned Magistrate is directed to receive the statement of the complainant, witnesses and other materials, and proceed with the case in accordance with law. 8. The criminal original petition is disposed of accordingly. Consequently, connected miscellaneous petition is closed.