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Criminal Revision No. 21 of 1979, decided on 20th February, 1979.

-- Ss. 190 (3) & 200 read with S. 537--Criminal trial-Sessions Judge ordering preliminary enquiry by a Magistrate without having examined complainant in disregard of procedure laid down in sections 190 (3) & 200, Cr. P. C.--Order, held, vitiated and not curable under S. 537, Cr. P. C.--De novo proceedings ordered, in circumstances.

Wasim Sajjad for Petitioner.

Yusuf Ali Khan for Respondents.

I feel constrained to preface this order with an unhappy remark that the order in Criminal Miscellaneous No. 229/Q/78 had earned a scant attention of learned Sessions Judge which had necessitated this second application, now by the complainant, for setting aside the proceedings ending in the order for issue of process to the accused (respondents Nos. 1 to 6).

Learned counsel for the respondents also says that he was not advised to oppose the application.

2. Learned Sessions Judge was directed in unmistakable terms in the order disposing of the previous application referred to above that he will record statement of the complainant under section 200. Criminal Procedure Code before proceeding further in the case. Precisely, the relevant portion of the concluding para of the order reads as below :

"Learned Sessions Judge to proceed with the case from the stage envisaged in section 200, Criminal Procedure Code. He will record statement of the complainant (respondent) may issue process if he feels so advised or may postpone the issue of process and either enquire into the case himself or direct an enquiry to be made by a Magistrate, etc. before issuing the process in accordance with law.

However, learned Sessions Judge ordered preliminary enquiry by Magistrate without having examined the complainant, The latter's statement was recorded by learned Magistrate which he was not comp eten; to do in law. In cases originating with private complaints sent to the Court of Session under section 190 (3), Criminal Procedure Code, learned Session Judge is required to record preliminary statement of the complainant. The proceedings in the case were, therefore, vitiated by substantial error of law which could not be cured under section 537, Criminal Procedure Code. In the result, proceedings taken in the case from the stage of order of learned Sessions Judge sending the case to the Magistrate for enquiry without having recorded statement of the complainant are set aside. Learned Sessions Judge shall first examine the complainant for statement under section 200, Criminal Procedure Code. Preliminary enquiry, if any, be preferably entrusted to a Magistrate other than the one on whose report processes were issued to the accused (respondents).

Petition accepted.

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