The Magistrate's power to examine witnesses under Section 209 CrPC is limited to ascertaining whether the offence is exclusively triable by the Court of Sessions. The Magistrate cannot examine the investigator to determine the nature of the offence.

N.N. Sharma, J.

1. Both these revisions are connected and are being disposed of by this order.

2. Criminal Revision No. 2432 of 1984 is directed against order dated 6-10-1982 recorded by Sri S. B. L. Kakkar, learned Sessions Judge, Saharanpur by which he allowed Criminal Revision No. 101 of 1982 and set aside the order of learned Magistrate dated 30-3-82 to proceed with the trial of the case himself as a warrant case under Section 323/324/325 IPC by dropping Section 308 IPC. In pursuance of the order of revisional court, the learned Magistrate committed the case to the court of Sessions. Learned Sessions Judge framed a charge under Section 307 IPC against the revisionists on 7-6-84. This charge along with the order was assailed on behalf of accused-revisionists in Criminal Misc. Application No. 5271 of 1984, under Section 482 CrPC, That application was rejected on 13-11-84.

Criminal Revision No. 2.433 of 1984 is directed against that order dated 7-6-84 recorded by Sri K. K. Srivastava, learned Additional Sessions Judge, Saharanpur who framed the charge against the accused under Section 307 IPC in Sessions Trial No. 146 of 1983, State v. Rustam and others.

3. One Ashique Hussain lodged a report against accused at Police Station Jwalapur, district Saharanpur on 28-11-80 at 7.45 P.M. about the assault on Mohd. Saddique and Mushtaque with lathis and spear. Accused Baqer was alleged to have used spear while the remaining assailants used lathis.

4. Mohd. Sadique and Mushtaque were medically examined on the same day. X-ray examination of one injured was also done.

On 12-12-1980 charge sheet was submitted by investigator Sri Jai Prakash u/Secs. 323, 325 and 308 IPC. Pending the case before the Magistrate, an application was moved by accused on 30-11-1983 by which the investigator was summoned to state that it was on account of mistake that a charge sheet bad been submitted for an offence under Section 308 IPC also. An extract from the case diary was also filed by the investigator on that date in support of his statement.

5. After this statement, learned Magistrate dropped the proceedings under Section 308 IPC vide order dated 30-3-1982.

6. Complainant carried the matter in revision which was allowed as given above.

I have heard learned counsel for parties and perused the record.

7. On behalf of revisionists, it was argued that order dated 30-3-1982 by learned Magistrate was simply an interlocutory order and no revision against the said order could have lain vide Section 397 (2) of Code of Criminal Procedure. This contention is not acceptable to me for the simple reason that when the Sessions Judge found that the Magistrate recorded an order to usurp the jurisdiction of Sessions Judge, so the order was clearly revisable.

8. The next contention was that it was not open to a private party to prefer a revision when the proceedings were initiated on a police report. This contention is also not weighty. The Sessions Judge could have acted suo moto in calling and examining any record of any proceedings pending before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying the correctness, legality or propriety of any finding, sentence or order, recorded or passed. So the learned Sessions Judge was well within his right to have examined the record and corrected the error apparent on the face of record.

The next contention was that the learned Magistrate was justified in examining the investigator and such examination was not illegal. Charge sheet was submitted under Sections 323/324/325 IPC. Section 308 IPC was added subsequently. It was open to the investigator to clearify the same. Learned Magistrate also could have ascertained this fact from the investigator.

9. Even at the stage of enquiry, in the interest of justice, in exercise of his power under Section 311, CrPC, a witness could have been examined by the Magistrate. So while acting under Section 209, CrPC the learned Magistrate co