The main legal point established in the judgment is that a Magistrate has the jurisdiction to summon the accused based on the complaint and the complainant's statement under Section 200 Cr.P.C. even in cases exclusively triable by the Court of Sessions, if the complainant fails to produce witnesses in the enquiry under Section 202 Cr.P.C., but must follow the procedure outlined in the proviso to Section 202(2) Cr.P.C.

1. Heard the petitioners and State. No one appears for opp. party no.2.

2. Petitioners have fiied instant application for quashing order dated 23.11.2004, in Cri. Revision case no. 37 of 2003, passed by Addl. Sessions Judge I, Katihar affirming the order dated 18.2.2003, whereby the Magistrate took cognizance of the offence under Sections 376/34 I.P.C. and summoned them to face trial.

3. Facts of the case in short is that opposite party number 2, namely, Rabina Khatoon filed a complaint on 7.1.2002 giving rise to Complaint case no.41 of 2002. In the complaint, she alleged that all the three petitioners committed rape on her, which she narrated to the passers by. The complainant supported the prosecution case in her examination on Solemn Affirmation (SA) under Section 200 Cr.P.C. The learned Chief Judicial Magistrate, Katihar transferred the case to Sri B.B. Yadav, Judicial Magistrate, 1st class, Katihar for enquiry and disposal under Section 192 Cr.P.C.

4. Learned Magistrate started enquiry under Section 202 Cr.P.C. and by order dated 26.2.2002, 13.3.2002, 5.4.2002, 13.5.2002, 3.6.2002, 5.7.2002, 31.7.2002 & 27.8.2002 directed the complainant to produce the witnesses. However on 8.10.2002 complainant filed a petition for examining witnesses other than those named in the complaint, as they were not willing to depose. By order dated 8.10.2002 the learned Magistrate directed the complainant to produce other witness on 18.11.2002. Despite similar directions on 11.1.2003,13.1.2003, 30.1.2003 & 13.2.2003, the complainant was not able to produce any witness for enquiry u/s 202 Cr.P.C. However, on 18.2.2003 the learned Magistrate took cognizance of the offence under Sections 376/ 34 of the I.P.C. and summoned the petitioners to face trial. The Magistrate in his order dated 18.2.2003 observed that though no independent witness could be produced to support the allegation made by the complainant, still on basis of allegations made in complaint petition and SA under Section 200 Cr.P.C, there appears sufficient ground to proceed against accused persons.

5. The petitioners had arrayed six more persons as opp. party, apart from the State of Bihar. However he subsequently deleted name of opposite party numbers 3, 4, 6 and 7.

6. The petitioners challenged the impugned order taking cognizance and summoning them to face trial on the following grounds:-

Firstly, opp party no.2 is a fictitious woman and not a resident of village Mariya Sihpur, Police Station Balia Belone, Katihar as claimed in the complaint petition. Secondly, the instant complaint has been filed as a vengeance to put pressure upon the petitioners to compromise Kadwa Police Station case no. 152 of 2001, lodged by sister of petitioner no.2 under Section 376 against opposite party no.7, one Moinuddin Ansari. Thirdly, the Magistrate erred in law in issuing summons to the petitioners to face trial only on the basis of complaint and her statement on SA and without examining any witness in enquiry required u/s 202 Cr.P.C. Fourthly, the learned Magistrate could not have taken cognizance and summoned the petitioner to face trial without disposing of his objection that complainant in an enquiry u/s 202 Cr.P.C. cannot examine witnesses other than those mentioned in complaint petition.

7 Counsel for the opp. party no.2 stated that the learned Magistrate can take cognizance of offence and summon accused to face trial also alone on basis of complaint and SA only in exceptional circumstances, even in Sessions triable cases, if he is other wise satisfied that there are sufficient materials to proceed against them as complainant failed to produce a witness in enquiry despite opportunities.

8. The main issue for consideration of this Court is whether a Magistrate has jurisdiction to summon a person to face trial only on basis of complaint and her statement on SA u/s 200 Cr.P.C. in respect of an offence exclusively triable by Court of Sessions, if complainant fails to produce any witness i