Section 202 no use by the magistrate.
Querist :
Anonymous
(Querist) 24 June 2011
This query is : Resolved
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 inquire 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 an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses 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.
Question: As if the offence is triable by the session court than the investigation shall not be made but sub section say that (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.) my question is if the offence is trialable by the session court & if the investigation is not made then why to take the evidence & take the witness evidence what is the need. First part say no investigation if offence triable by the session court & other say that triable by the session court then evidence should be taken I think it is illogically as magistrate don’t have to do with the trial process or investigation then he/she has to unnecessary take the evidence & all procees.
Totally Confused what section what to says?
any case law to understand the section more
Thanks
virender
(Expert) 24 June 2011
the investigation refers as the power of magistrate to direct the police to investigate. where a compliant is made under section which is triable by session judge than the magistrate cannot order police to investigate and he has to investigate himself by recording evidence
Ajay Bansal
(Expert) 25 June 2011
Agreed with virender.
Querist :
Anonymous
(Querist) 25 June 2011
Thanks Sir
The magistrate cannot order police to investigate and he has to investigate himself by recording evidence.
So in this case the magistrate will be known as the IO (investigation Officer) & then he/she will will forward all the things to the session court.
sir can u give me any case law in which magistrate becomes the investigation officer & then he has forwarded the all things to the session court.
Thanks once again.
Advocate. Arunagiri
(Expert) 25 June 2011
u/s 202 the Magistrate is having the power to conduct inquiry (not investigation, not even enquiry)or the purpose of deciding whether or not there is sufficient ground for proceeding:
This is applicable to private complaint only. Once the witnesses are examined if needed, the court either proceed the case in the same court or will forward the case to the court (magistrate or sessions court) for further proceedings.
Till this point the accused will not be summoned. Then the concerned court will order summon or warrant to the accused.
