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2003 DIGILAW 641 (CAL)

NABANITA DUTTA v. STATE OF WEST BENGAL

2003-12-17

P.N.SINHA

body2003
P. N. SINHA, J. ( 1 ) THIS revisional application is directed against the order dated 1-9-2003 passed by the learned Sub-Divisional Judicial Magistrate, serampore, in petition No. 1740 filed by this petitioner in the said Court and thereby dismissing the complaint under section 203 of the Cr. P. C. ( 2 ) AFTER hearing the learned Advocate for the petitioner, I am of thetdpinion that the instant revisional application can be disposed of without serving notice to the State. ( 3 ) THE learned Advocate for the petitioner contended that the impugned order is bad in law as without complying with the provision of section 203 of cr. P. C. , the learned Magistrate dismissed the complaint. Moreover, the learned magistrate did not consider that in order to attract offence under sections 420 and 406 of I. P. C. and section 45 of the Special Marriage Act, no question of complaint from any Court is required. In respect of offence under sections 196 and 199 of the I. P. C. there may be a bar under section 195 of Cr. P. C. , but there cannot be any bar under section 195 of Cr. P. C. in respect of offence under sections 420/406 of I. P. C. and section 45 of the Special Marriage' Act. ( 4 ) AFTER hearing the learned Advocate for the petitioner and perusing the application and annexures therein. I find that this petitioner filed a complaint before the learned S. D. J. M. , Serampore, for alleged offence under sections 420/ 406/196/199 of I. P. C. and section 45 of the Special Marriage Act and prayed for sending the petition of complaint to Officer-in-Charge, Uttarpara P. S. for investigation under section 156 (3) of Cr. P. C. treating the complaint as F. I. R. ( 5 ) THE learned Magistrate by the impugned order refused to send the complaint to the O. C. concerned for investigation under section 156 (3) of Cr. P. C. Thereafter, the learned Magistrate heard the learned Advocate for the complainant, perused the petition of complaint and dismissed the complaint under section 203 of Cr. P. C. I find that the impugned order is bad in law as the learned Magistrate, after taking cognizance, did not examine the complainant and her witnesses under section 200 of Cr. P. C. Section 203 of Cr. P. C. I find that the impugned order is bad in law as the learned Magistrate, after taking cognizance, did not examine the complainant and her witnesses under section 200 of Cr. P. C. Section 203 of Cr. P. C. prescribed that if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202 of Cr. P. C. , the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. It is clear that the learned Magistrate did not comply with the provision of sections 200/ 202 of Cr. P. C. and accordingly, the order dismissing the complaint straightaway under section 203 of Cr. P. C. without complying the said provisions is bad in law. ( 6 ) MOREOVER, the learned Magistrate did not consider that in respect of offence under sections 420/406 of I. P. C. no complaint of Court is necessary and section 195 of Cr. P. C. cannot be a bar in respect of such offences. The law is not that the learned Magistrate should consider all the sections of offence mentioned in the complaint and the learned Magistrate is to apply his mind to find out which offence has been made out after examining of complainant on oath and her witnesses. The impugned order being without jurisdiction, improper, incorrect and illegal is accordingly, set aside. ( 7 ) THE learned Sub-Divisional Judicial Magistrate, Serampore, is directed to proceed with the complaint in accordance with law, as indicated above, from the stage of examining the complainant and her witnesses under section 200 of Cr. P. C. onwards. ( 8 ) THIS revisional application is, thus, disposed of. Criminal section is directed to supply the certified copy of this order, if applied for, to the petitioner with utmost expedition.