JUDGMENT
S.B. Sinha, J.
1. This application is directed against an order dated 7.1.1987 passed by Shrimati S. Sinha, Chief Judicial Magistrate, Giridih in T.R. Case No. 562/87 whereby and whereunder the said learned Court directed issuance of processes as against the petitioners for standing trial for an alleged offence under Sections 144 and 379 of Indian Penal Code.
2. Mr. Ram Autar Sharma learned Counsel appearing on behalf of the petitioners, raised two fold contentions in support of this application. The learned Counsel firstly submitted that the learned Magistrate being not satisfied that a case for issuance of processes has been made out, called for a report from the police and from that the officer-in-charge, Dumari Police Station submitted a report wherein he stated that only a few petitioners are guilty of the alleged offence. The learned Counsel, therefore, submitted that the learned court below had no jurisdiction to examine any further witnesses in an enquiry under Section 202 of the Code of Criminal Procedure and directing issuance of processes as against all the petitioner in pursuance thereof.
3. Secondly, the learned Counsel submitted that as the police report was called for by Shri P.R.P. Verma, Judicial Magistrate, Shrimati S. Sinha had no jurisdiction to issue processes.
4. My attention has also been drawn to an order dated 19.9.1985 passed in Cr. Misc. No. 3469/85 (R) wherefrom it appears that earlier this Court quashed the order taking cognizance as against the petitioner and remitted the case back to the court below for disposal thereof in accordance with law.
5. It is not in dispute that after the complaint petition was filed, the complainant was examined on solemn affirmation on 15.11.1984 as is evident from the certified copy of the complaint petition itself.
6. From the order sheet it appears that the case was later on transferred to the court of Shri B.B. Pandey, Judicial Magistrate, Giridih and was registered T.R. No. 562/87.
7. It is evident that Smt. S. Sinha, is a successor in office of the court of Shri P.R.P. Verma, Judicial Magistrate as the order sheet suggests.
8. So far as the first contention raised by Mr. Sharma is concerned, in my opinion, the same has no substance. Only because a report has been called for by a court from the officer in-charge of a Police Station, the same does not mean that the court concerned would be bound by the report submitted to him and is precluded from examining any other witnesses in enquiry under Section 202 of the Code of Criminal Procedure.
9. The power of the court to hold an enquiry under Section 202 of the Code of Criminal Procedure in order to come to a conclusion as to whether the case should be enquired into in terms of Section 202 of the Code of Criminal Procedure for the purpose of finding out as to whether any prima facie case has been made out as against the accused person named in the complaint petition or some of them in terms of Section 204 thereof, is a wide one.
10. Evidently the said power is to be exercised in accordance with law.
11. It is evident from the report submitted by the officer-in-charge of the Dumari P.S. that he found that an offence has been committed as alleged by the complainant in her complaint petition.
12. From perusal of the said police report it appears that he found in this prima facie was argued that (1) Kishun Rai (petitioner No. 7), (2) Puran Rai (petitioner No. 8), (3) Fucha Rai (petitioner No. 10), (4) Dinu Rai (petitioner No. 2, (5) Puran Rai (petitioner No. 3). (6) Pran Rai (petitioner No. 21), (7) Lali Rai (petitioner No. 16), (8) Mangar Rai (petitioner No. 22), (9) Janki Rai (petitioner No. 23) and (10) Hemal Rai (petitioner No. 26) participated in the offence. The witnesses who were examined before the court below took the names of (1) Dinu Rai (petitioner No. 2), (2) Endo Rai (petitioner No. 4), (3) Huro Rai (petitioner No. 12), (4) Janki Rai (petitioner No. 23), (5) Hemal Rai (petitioner No. 26). (6) Jhagar Rai (petitioner No. 17), (7) Jhandu Rai (petitioner No. 24), (8) Puran Rai (petitioner No. 3), (9) Fucha Rai (petitioner No. 10) and (10) Gheta Rai (petitioner No. 11). It is, therefore, clear that so far as the aforementioned petitioners are concerned, both from the police report as also the evidence on record the court could not come to a conclusion that a prima facie case been made out. However, no witnesses took the name of any other accused persons. Bedu Yadav (P.W. 1) merely stated that some ladies also took pact in the incidence but he did not take the name of any such lady petitioners.
13. It is, therefore, clear that so far as the other petitioners are concerned there was no material before the court below to issue summons as against them.
14. In this view of the matter, in my opinion, no case for interference so far as the petitioners, namely (1) Dinu Rai (petitioner No. 2), (2) Puran Rai (petitioner No. 3), (3) Endo Rai (petitioner No. 4), (4) Kishun Rai (petitioner No. 7), (5) Puran Rai (petitioner No. 8), (6) Fucha Rai (petitioner No. 10), (7) Huro Rai (petitioner No. 12), (8) Lali Rai (petitioner No. 16), (9) Jhagar Rai (petitioner No. 17), (10) Pran Rai (petitioner No. 21), (11) Mangar Rai (petitioner No. 22), (12) Janki Rai (petitioner No. 23), (13) Jhaadu Rai (petitioner No. 24), (14) Hemal Rai (petitioner No. 26) and (15) Cheta Rai (petitioner No. 11) are concerned, have been made out.
15. However, as noticed hereinbefore, so far as the other petitioners are concerned, no materials have been brought on the records as against them and as such the impugned order as against the said petitioners cannot be sustained.
16. So far as the second contention raised by Mr. Sharma is concerned, in my opinion, the same has no merit.
In terms of Section 192 of the Code of Criminal Procedure, not only a Magistrate may after taking cognizance of an offence issue processes but the same can be issued by a transferee Magistrate. This aspect of the matter is also evident from the provisions of Section 202 of the Code of Criminal Procedure.
17. This position also clearly emergence from the case of Rajendra Nath v. Dy. Superintendent of Police, Purulia reported in 1972 Cr. Law Journal 268 upon which reliance has been placed by Shri Sharma himself.
18. In this view of the matter this application is allowed in part and to the extent mentioned hereinbefore.