The main legal point established in the judgment is the correct interpretation and application of the provisions of sections 156(3) and 202 of the Criminal Procedure Code in cases triable exclusively by the Court of Session.

ORDER : -

Being aggrieved by the order dated 19-9-2003, passed by the Judicial Magistrate First Class, Raghogarh, District Guna (M. P.) in Criminal Case No. 356/2003, which has been set aside by the II Additional Sessions Judge, Guna in Criminal Revision No. 223/03, vide order dated 24-8-2004, this petition under section 482 of the Code of Criminal Procedure has been filed by the petitioner.

2. The facts giving rise to this petition, in short, are that the petitioner filed a private complaint in the Court of Judicial Magistrate First Class, Raghogarh under sections 147, 148, 323, 395 read with section 149 of Indian Penal Code against 28 accused persons, in which about 18 accused persons were Police Officers. Prior to the date of incident, a murder case was got registered against 15 family members belonging to the complainant. The learned trial Court sent the complaint under section 156(3) of Criminal Procedure Code to the police for investigation and after receiving the report from the police, dismissed the complaint against all the accused persons under sections 148 and 395 of Indian Penal Code and took cognizance against accused Vijay Singh, Lekhraj, Komal, lal Singh, Ram Singh, Prabhulal, Bahadur Singh, Kamal Singh, Chhatar Singh and Kalyan Singh under sections 147 and 323 read with section 149 of Indian Penal Code and they were summoned on 19-9-2003.

3. Learned counsel for the petitioner submits that as per allegation of the complainant, the offence is triable exclusively by the Court of Session.

Therefore, the learned trial Court has committed illegality by calling report under section 156(3) of Criminal Procedure Code. It is the duty of the Magistrate to consider the case as per provision of section 202 of Criminal Procedure Code to examine all the witnesses and thereafter he shall take cognizance of the offence. But in this case the Court with the aid of section 156(3) of Criminal Procedure Code registered the case against few accused persons under sections 147, 323 read with section 149 of Indian Penal Code and not registered the complaint for the offence under section 395 read with section 149 of Indian Penal Code. Further, it is also submitted that the revision petition was filed by the complainant against the order of the learned trial Court partly registered the criminal complaint.

4. Being aggrieved by the order of the learned trial Court the complainant filed a revision petition but the Sessions Court committed error by setting aside the complete order dated 19-9-2003 of the learned trial Court when there was no revision filed by the accused persons against whom the case was registered under sections 147, 323 read with 149 of Indian Penal Code. As there was no revision filed by the aggrieved persons, the Sessions Court ought not to have set aside whole order of the learned trial Court. It is also submitted that the Sessions Court by passing the impugned order, mis-construed the facts and law against the cognizance of offences which are exclusively triable by the Court of Session. The revision was filed only for direction to the learned trial Court for taking cognizance against the remaining accused persons by complying the provisions of section 202(2) of Criminal Procedure Code. In this regard, learned counsel for the petitioner relied on Rosy and another vs. State of Kerala and others, reported in AIR 2000 SC 637.

5. On behalf of the respondent, the impugned order has been supported by learned Public Prosecutor.

6. Two points are involved in this case, whether the learned trial Court has power to direct investigation under section 156(3) of Criminal Procedure Code in case of complaint in which the allegations are that it is triable by the Court of Session and second is that when accused persons who are aggrieved persons, have not filed any revision against the cognizance of offence taken by the learned trial Court, whether the Sessions Court has power to set aside the whole order instead which was challenged by the pet