( 1. ) THIS petition is filed by the accused under Section 482, Cr. P. C. for quashing the First Information Report in Criminal Case No. 302/03 lodged by respondent Pawan Sharma against the present petitioners and subsequent proceedings in pursuance thereof.

( 2. ) THE brief facts of the case are that Kamlesh Pathak has some family dispute with his wife, Smt. Meera Pathak, who has lodged the complaint against the present petitioner No. 1, Kamlesh Pathak for committing offence under Section 498-A, I. P. C. and also filed proceedings under Section 125, Cr. P. C. for maintenance. She was residing with her brother, respondent No. 2, Pawan Sharma. It is alleged by the petitioner that he along with his Lawyer, Mr. Nandan Dixit went to the house of respondent No. 2, Pawan Sharma for reconciliation of the dispute, it is alleged by the petitioner that at time respondent No. 2 and his colleagues fired gun shot against the present petitioner and his Counsel in which his Counsel, Mr. Nandan Dixit died. The present petitioner was also injured in the incident. Pawan Sharma and other persons ran away from the spot, and police chased them and thereafter there was exchange of firing between respondent No. 2 and police party in which some police personnel were injured.

( 3. ) AFTER the said incident Pawan Sharma wrote a letter to Chief Judicial Magistrate alleging that present petitioners along with his colleagues had fired gun shot which were struck in the house and wall of the complainant. The complainant escaped in the said incident. Thus, according to Pawan Sharma present petitioner has committed offence under Section 307, I. P. C. It is alleged by the petitioner that police conducted inquiry on the basis of said letter and found that the offence is not made out. Thereafter Pawan Sharma filed a private complaint in which the Magistrate issued a direction on 8. 9. 2003 for making an investigation under Section 156 (3), Cr. P. C. This order is under challenge in the present petition.

( 4. ) THE main contention raised by Mr. V. K. Saxena, Sr. Advocate appearing for the petitioner is that as the complaint is lodged by respondent No. 2, Pawan Sharma, for committing an offence under Section 307, I. P. C. which is triable by the Sessions Court, the Magistrate has no power to direct the police authorities to make investigation under Section 156 (3), Cr. P. C. For this purpose Counsel for the petitioner has invited attention of this Court to proviso (a) to Sub-clause (2) of Section 202, Cr. P. C. , which reads as under: "202. Postponement of issue of process.-- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In any inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness 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. "

( 5. ) PROVISO to Sub-section (1) where it appears to the Magistrate that the offence complained of is triable exclusively by the Sessions Court then the direction under Section 156 (3), Cr. P. C. should not be passed and it is incumbent on the Magistrate himself to take cogn