JUDGMENT
M.S. Patil, J.
1. On a private complaint filed by respoudent-2 against the petitioners alleging commission of the offence of murder punishable under Sections 302 read with 34 IPC, the J.M.F.C., Yelburga, having issued process against the petitioners, they have approached this court invoking the inherent powers under Section 482 Cr.P.C. ‘with a prayer to quash the proceedings so instituted against them.
In sum and substance, the allegations made in the complaint are : The deceased Shivawwa alias Mallamma was given in marriage to the 1st petitioner Mariappa of Yeddoni village and she was being ill-treated by the petitioners and they were forcing her to bring money, gold and other ornaments from her parent’s house and on the intervention of some persons although he had sent her to her husband’s house, advising her to live there and bring good name to the family, but on the very day on which he had sent, he learnt later on that the deceased had died. When he went back to Yeddoni, the dead body was in the well and when it was removed, there were marks of throttling and although he had so complained to the police, the police without making a fair investigation had sent up a charge-sheet against the petitioners for the offence punishable under Section 498-A IPC suppressing the real facts.
2. The learned Magistrate taking cognizance of the offence on the private complaint proceeded to record sworn statement of the complainant and four witnesses examined on behalf of the complainant and directed to issue process, the correctness of which is sought to be challenged; firstly on the ground that the Magistrate had committed error in issuing process without recording evidence of all the witnesses cited by the complainant and such of the other witnesses whose evidence would be relevant and secondly on the ground that the Magistrate had taken cognizance of the offence punishable under Section 498-A IPC on the report submitted by the police, therefore, the proper course open to the Magistrate was merely to file the complaint in the police case, instituted on the police report, as required under Section 210 Cr.P.C. instead of taking cognizance or making enquiry as has been done by the Magistrate.
3. The provisions of Sub-section (2) of Section 202 Cr.P.C. regarding the enquiry which are mandatory in nature read as follows :
“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 Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.”
The provisions of- Section 210 Cr.P.C. deal with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence and read as follows :
“210(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.
(2) If a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
(3) If the police report does not relate to any accused in the complaint cage or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code.”
4. The accused concerned in the case here, instituted on the police report and on the private complaint are one and the same. However, the offences alleged in the police report and those tried to be made out in the private complaint are different, but in respect of the same person and in relation to the same case. Having regard to what has been stated in Sub-section (2) of Section 210, it is only in cases where the Magistrate has already taken cognizance on the police report against the same persons and for the same offence or offences triable by himself, it may be permissible for the Magistrate merely to file the complaint in the case instituted on police report, but where the offence alleged are different or against different persons or when the offences tried to be made out in the complaint case are exclusively triable by the court of Sessions and those mentioned in the report are triable by the Magistrate, such a course will not be permissible. To do so would be to ignore the allegations made in the complaint. Now, since as provided under Section 323 Cr.P.C. whenever it appears to the Magistrate, at any stage of the proceedings, that the case is one which ought to be tried by the Court of Sessions, it is permissible to the Magistrate to commit the case to the Court of Sessions, the proper course in such a situation where the offences alleged in the complaint are exclusively triable by a court of Sessions, is to stay the enquiry in the case instituted on the police report and make an inquiry in the case instituted on the complaint, record the evidence of all witnesses cited in the complaint and of such others considered relevant and necessary and then issue process to the accused and on appearance of the accused to commit the case to the court of Sessions in compliance of the provisions of Section 209 Cr.P.C. and while so committing it, commit the case instituted on the police report as well to the Court of Sessions as a case which ought to be tried by the Court of Sessions under Section 323 Cr.P.C. It would be then open to the Sessions Judge to club both the cases and dispose of the same in accordance with law.
5. The Magistrate here has although proceeded to make inquiry on the complaint, but has issued process to the accused-petitioners before recording of the statement of all the witnesses cited in the complaint. Since the process has to be issued only after recording of the statement of all the witnesses cited and such other witnesses whose evidence is considered relevant in the case, the process issued, without recording the statement of all the witnesses being not in compliance with the provisions of Section 202 Cr.P.C., the process issued against the petitioners are liable to be quashed.
The process issued are accordingly quashed and the matter is remitted back to the Magistrate with a direction to make enquiry and dispose of the case in accordance with law and in the light of the
observations made above.