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Patna High Court · body

1997 DIGILAW 252 (PAT)

Sarba Nand Singh v. Nand Bhushan Singh

1997-03-31

P.K.SARIN

body1997
Judgment P.K.Sarin, J. 1. This criminal revision application is directed against the judgment and order dated 15th November, 1980 passed by the 6th Additional Sessions Judge, Patna in Cr. Revision No. 542 of 1989 whereby the learned Sessions Judge has allowed the criminal revision filed by Opposite Party complainant and set aside the order dated 6.4.1989 passed by the Sub-Divisional Judicial Magistrate. Danapur in Complaint Case No. 121 (c) 89 whereby the learned Magistrate had dismissed the complaint petition. 2. It appears that the Opposite Party filed a complaint before the learned Sub-Divisional Judicial Magistrate on 27.3.1989 who ordered it to be registered and directed the case to be put on 28.3.1989, as the complaint was filed late. On 28.3.1989 the case was adjourned to 6.4.1989 on the application of complainants Counsel for time. On 6.4.1989 further a request was made for examining the complainant on oath. The learned Magistrate did not appear to have passed any order on the application of time. However, he noted on that date that the complaint did not bear the signature of the complainant. It is further noted that the learned Counsel for the complainant had requested for time and permission for getting the signature of the complainant done on the complaint. Thereafter the learned Magistrate dismissed the complaint on the ground that the complaint does not bear the signature of the complainant. Being aggrieved by the said order the Opposite Party filed Criminal Revision No. 542/89 which has been allowed by the impugned judgment and order. The learned Additional Sessions Judge served that the complainant could not have been dismissed without examining the complainant on oath and without considering the statement on oath of the witnesses to be examined on behalf of the complainant. The learned Additional Sessions Judge further observed that the learned Magistrate has erred in dismissing the complaint on the ground that the same has not been signed by the complainant. Being aggrieved by the order of the revisional Court this criminal revision application has been filed by the petitioners who were impleaded as accused in the complaint. 3. It has been contended by the learned Counsel for the petitioners that the order passed by the learned Magistrate dismissing the complaint was legal as there could not be any complaint without the signature of the complainant. 3. It has been contended by the learned Counsel for the petitioners that the order passed by the learned Magistrate dismissing the complaint was legal as there could not be any complaint without the signature of the complainant. It is contended that in absence of the signature of the complainant it could not be ascertained if the complainant had actually filed the complaint. It is further contended that the complainant did not appear before the Court for making his statement on oath despite taking time on 28.3.1989 and the Court had no option but to dismiss the complaint if the complainant did not appear to make his statement on oath in support of the complaint despite having been given opportunity for the same. 4. On the other hand, it has been contended by the learned Counsel for the Opposite Party that there is no provisions in the Code of Criminal Procedure that the complaint should be signed by the complainant. The learned Counsel has placed reliance on a decision of Gujarat High Court in the case of AIR 1967 Gujarat 15 G. K. Mazumdar V/s. Mohd. Kasam Mirza, wherein it has been held that complaint under the provisions of Prevention of Food Adulteration Act need not be signed by the complainant, when Section 248 of the Code of Criminal Procedure may be applied to the un-signed complaint. As regards the signing of the complaint there is no express provision in the Code of Criminal Procedure that the complaint should be signed by the complainant. The definition of complaint as given in Section 2 (d) is as follows: "Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report." The said definition shows that complaint may be made orally or in writing to a Magistrate if the complaint is written by the complainant himself and it is not signed it may be said that non-signing was not fatal as complaint in writing was there but where a complaint is not written by the complainant himself but is got typed it cannot be said to be a complaint made in writing by the complainant, if a typed complaint does not bear the signature of the complainant. The contention of the learned Counsel for the Opposite Party is that the complaint was signed by the lawyer of the complainant. Perusal of the lower Court record shows that the complaint has been signed by the learned Counsel for the complainant. The learned Counsel was appointed by a Vakalatnama. It is in the record of the learned Magistrate. It does not authorise a Counsel to sign a complaint on behalf of the complainant. It only authorised him, to do pairvi and file compromise or admission or sign the ... etc. The Counsel would act only within the power granted to him by his client. The vakalatnama of learned Counsel for the complainant does not contain any terms by which the learned Counsel was authorised to file a complaint and sign the same. Therefore signing of the complaint by the learned Counsel for the complainant cannot be said to be a complaint in writing by the complainant. In the said decision of the Gujarat High Court relied upon by the learned Counsel for the opposite party the question related to the unsigned complaint and it was held that where once withdrawal of complaint was granted under Section 248 of the Code of Criminal Procedure the Magistrate has no power to sanction for a fresh complaint. In the said case the provisions of Section 80 of the Prevention of Food Adulteration Act was considered wherein the requirement was that the prosecution is to be instituted by a written consent of the concerned Government or a local authority or a person authorised in that behalf by the State Government or a local authority. In this context it was observed that consent may be proved in course of the trial if required. It was also noted that the sanction of the Chief Officer of the Municipality was also on record. In these circumstances it was held that it was not necessary for a complaint to be signed by the complainant and there was no reason why the provisions of Section 248 of the Code Of Criminal Procedure should not be applied to the case in question. In the facts of the present case here a complaint was filed but the same did not bear the signature of the complainant. In the facts of the present case here a complaint was filed but the same did not bear the signature of the complainant. The complainant did not appear to support the complaint on oath despite having been given opportunity on 28.3.1989 when the case was adjourned to 6th April. 1989. On 6.4.1989 also the complainant was absent and an application was again filed for time. In this view of facts the learned Magistrate dismissed the complaint on the ground that the same did not bear the signature of the complainant. Section 203 of the Code of Criminal Procedure lays down that the Magistrate if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of enquiry or investigation (if any) under Section 202, forms an opinion that there is no sufficient ground for proceeding he shall dismiss the complaint after recording his reasons for so doing. The stage of Section 205 would come after enquiry under Section 202 if the Magistrate postpone (the issue of process against the accused and has ordered for enquiry. In the present case no order for enquiry under Section 202 Cr. P.C. was passed. The matter was at the stage of Section 200 Cr. P.C. itself and the complainant did not come forward to support his complaint despite having been given opportunity for the same. Therefore, there was no occasion for the Magistrate to decide whether or not postponing the issue of process and make enquiry under Section 202 Cr. P.C. The learned Sessions Judge appears to have decided the revision under the impression that the learned Magistrate has acted under Section 203 Cr. P.C. The learned Additional Sessions Judge has observed that without considering the statement or witnesses under Section 202 Cr. P.C. order under Section 203. Cr. P.C. could not have been passed. In my opinion, the learned Additional Sessions Judge erred in considering the provisions of Section 203 of the Code of Criminal Procedure for the purposes of deciding the revision. He ought to have considered whether the learned Magistrate was justified in dismissing the complaint when the same did not bear the signature of the complainant and was not in the writing of the complainant and further that the complainant did not bother to come to support the complaint on oath despite having been given opportunity for the same. He ought to have considered whether the learned Magistrate was justified in dismissing the complaint when the same did not bear the signature of the complainant and was not in the writing of the complainant and further that the complainant did not bother to come to support the complaint on oath despite having been given opportunity for the same. The learned Counsel for the petitioner has placed reliance on the decision of Calcutta High Court in the case of AIR 1926 Calcutta 596 Ram Prasad Maitra V/s. Emperor, wherein it has been held that where a Magistrate dismisses complain under Section 203 without examining the complainant he not being present on any of the dates of hearing, the complainant cannot afterwards be heard to say that the matter should be sent back for further enquiry. It was observed in the said case that it was the business of the complainant to be present in Court if he desired to have his statement taken on oath. Similar fact appears to be in the present case. The complainant did not appear for being examined on oath in support of his complaint under Section 202 Cr. P.C. although the learned Magistrate had granted him time at his request on 28.3.1989. On 6.4.1989 also the complainant did not appear for his statement. In these circumstances, the learned Magistrate had no option but to dismiss the complaint. More so when the complaint did not bear the signature of the complainant. In my opinion, the learned Additional Sessions Judge has erred in allowing the criminal revision application filed by the Opposite Party complainant and remitting the matter again to the learned Magistrate for a decision in the said case. 5. In the circumstances, the criminal revision application is allowed. The impugned judgment and order under revision is set aside. The order passed by the learned Magistrate is restored.