The main legal point established in the judgment is that the procedure for taking cognizance of offenses by a Magistrate under Section 190 and the application of Section 202 in cases where cognizance has been taken under Section 190(1)(b) based on material collected during investigation were discussed and clarified by the court.

( 1 ) DOUBTING the correctness of a Single Judge decision in the case of Moahabbat Ali v. State of U. P. reported in 1985 UP Cri R 264 : (1984 All LJ NOC 31), Honble S. Harkauli, J. has referred the following question for consideration by a larger Bench : "whether the view taken in the aforesaid case of Mohabbat Ali is correct ?"

( 2 ) BY the order of the Honble the Chief Justice, the matter has been assigned to this Bench.

( 3 ) BEFORE we start our discussion on the aforesaid question, we may first put in brief facts of this case.

( 4 ) ON an application moved by Smt. Vimala Devi, the Magistrate in exercise of powers under Section 156 (3), Cr. P. C. directed the police to register the case and investigate the same. Consequently an F. I. R. under Sections 467/468/419/420/364 and 392, I. P. C. was registered and investigated. On completion of investigation, police forwarded a final report to the Court of the concerned Magistrate. Feeling aggrieved, the complainant Smt. Vimala Devi filed objections in the form of protest Petition against the acceptance of final report. Along with the said petition, she also filed her own affidavit and affidavits of witnesses Ram Charan and Mata Prasad. It further appears that the learned Magistrate, on the basis of material on record came to the conclusion that there was sufficient ground to proceed against the applicants and issued process against them under Section 204 of the Code of Criminal Procedure. Thereafter, an application on behalf of the applicants was moved before the Magistrate for recalling the summoning order dated 7-7-97. This application was however rejected by the learned Magistrate by the order dated 21-10-99 holding that the applicants had no right of hearing before passing of the summoning order and as cognizance has been taken under Section 190 (1) (b), Cr. P. C. the order of summoning was amenable to revision. The applicants then preferred before the Session Judge against the aforesaid order dated 29-10-99. The revision has also been dismissed by the learned Session Judge by the impugned order dated 15-5-2000. The applicants have now approached this Court for invoking inherent powers of the Court under Section 482, Cr. P. C. seeking quashing of the summoning order dated 7-7-97.

( 5 ) WHEN this application was taken up for admission on 25-5-2001 by this Court, it was urged on behalf of the applicants that they have been summoned under Section 364, I. P. C. also which offence is triable exclusively by the Court of Session, yet before issuing process the learned Magistrate did not record statements of all the witnesses as required by the proviso to Section 202 (2), Cr. P. C. In support of this contention reliance was placed upon a single Judge decision of this Court in Mohabbat Alis case (supra ). The facts of that case were that one Mohammad Sharif filed a complaint under Section 395/397, I. P. C. against Mohabbat Ali and others. After investigation final report was submitted by the police. On receipt of Protest application from the complainant, the learned Magistrate summoned the accused persons to stand their trial under Section 395/397, I. P. C. The learned Single Judge allowed the said revision and quashing the order of summoning on the holding that charge under Section 395/397, I. P. C. is exclusively triable by the Court of Session and as proviso to Section 202 (2) of the Code of Criminal Procedure lays down 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 but that procedure was not adopted by the learned Magistrate before passing the order of summoning.

( 6 ) HONble S. Harkauli, J. hearing the present application expressed the view that Section 202 (falling under Chapter XV) applied only to a case instituted upon a complaint and cognizance taken under Section 190 (1) (a) and not to cases covered by S