ORDER

This present petition has been preferred on behalf of the petitioner under Section 482 of Cr.P.C. being aggrieved by the order dated 31.07.2021 passed by JMFC, Garoth, Mandsaur in connection with Complainant Case No.0/2019 under Section 196, 199, 406, 420,467, 468, 471 and 120-B of IPC whereby the Judicial Magistrate First Class has sent the matter to the concerned police station for investigation under Section 202 of Cr.P.C.

2. Succinctly stated brief facts leading to the present petition are that a complainant has been lodged under Section 200 before the trial Court against the petitioner. A civil suit between the petitioner and respondent is already pending before the concerned Court. The allegations against the petitioner has been leveled that he has filed false and fabricated affidavit before the Civil Judge in the civil suit. Even after various directions, the complainant has not filed original copy of the affidavit and only filed the photocopy of the same. The learned trial Court without considering the material available on record and without considering the appropriate provisions of law, wrongly sent the matter for investigation under Section 202 of Cr.P.C. to the concerned trial Court without having powers vide the impugned judgement. Hence, the present petition.

3. Learned counsel for the petitioner submits that the petitioner is an old age person and suffering from multiple disease. It is further submitted that the complaint filed by the respondent under Section 200 of Cr.P.C and so also passing of the impugned order under Section 202 of Cr.P.C. is illegal, perverse and bad in law. It is also submitted that the learned trial Court has passed the impugned order by ignoring the settled principle of law that the offence and charges leveled against the petitioner are not triable by Judicial Magistrate First Class and the same can only be tried by Court of Sessions. It is also submitted that the learned trial Court has wrongly sent the matter for further investigation solely on the basis of documents placed before the Court. Hence, the impugned order is liable to set aside being illegal.

4. In support of his contention, counsel for the petitioner relying upon the judgment dated 03.12.2004 passed in Kamlesh Pathak vs. State of M.P., (M.Cr.C. No.2798/2004). Relevant paragraphs no.12 of the judgment passed in the case of Kamlesh Pathak (Supra):

12. Thus, after perusing the aforesaid case laws and the language of proviso to Section 202 it clearly appears that the Magistrate has no power to issue direction under Section 156(3), Cr.P.C. in cases where offence is triable by exclusively by Sessions Court and if directions are issued that would be without jurisdiction. In case a complaint is made to the Magistrate of an offence which is exclusively triable by Sessions Court it is incumbent on him to call upon the complainant to produce witnesses on which he relies and after recording their statements the Magistrate may decide whether cognizance of offence is to be taken or not. In the present case the Court has not followed the Said procedure and has directed investigation by police under Section 156(3), Cr.P.C.

5. On the other hand, counsel for the respondent has opposed the prayer by supporting the impugned order. It is submitted that the learned trial Court has rightly passed the impugned order and sent the matter for further investigation correctly to the concerned police station. It is also submitted that the documents which has been placed alongwith the complainant are sufficient to take cognizance against the petitioner. Hence, prays for dismissal of the petition.

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

7. Prior to considering the matter in hand, it would be appropriate to consider the provisions of Section 200 and 202 of Cr.P.C. first, which reads as under:-

200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the com