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2005 DIGILAW 1026 (RAJ)

Dr. Satyanarain Sharma v. State of Rajasthan

2005-04-06

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-Heard learned Counsel for the parties. 2. On 03.01.1996, complainant Mst. Munni Devi filed a criminal complaint in the Court of Chief Judicial Magistrate, Dausa. The learned Magistrate, exercising the powers under Section 156 (3) CrPC sent the said complaint to the S.H.O., Police Station Dausa. The S.H.O. in turn registered FIR No.84/1996 and after completion of investigation, submitted Final Report No.203/1996. The complainant filed protest petition on 01.02.1997 and the learned Magistrate vide its order dated 012.2002 took cognizance of the offence under Section 406 IPC in respect of the petitioner. The petitioner challenged the order of the learned Magistrate in revision petition before the Court of Sessions. The revisional Court vide its order dated 12.04.2004 affirmed the order of the trial Court and dismissed the revision petition. Hence, the present petition. 3. Mr. Taylor, learned Counsel for the petitioner has assailed the order taking cognizance as also the order passed by the revisional Court on the ground that the learned Magistrate has taken cognizance of the offences on the protect petition having been filed by the complainant, without observing the procedure laid down in Sections 200 to 204, CrPC. While producing with this petition the copies of order sheets of the trial Court starting from 1st February, 1997 till 211.2002 i.e., nearly for five years, learned Counsel submitted that during this long span of about 5 years the complainant, despite having been granted about 50 opportunities for getting him and his witnesses examined, did not examine him nor adduced any evidence, but still the learned trial Court in the absence of statements of the complainant and his witnesses took cognizance of the offence while treating the protest petition as complaint. There was no material with the trial Court to prima facie constitute offence under Section 406, IPC, of which cognizance has been taken. On this strength, learned Counsel strenuously contended that the order taking cognizance having been passed without adhereing to the provisions of Sections 200, 202 and 204, CrPC deserves to be quashed and aside. 4. I have given my anxious consideration to the above argument. It is a settled proposition of law that in case if a protest petition is ordered to be treated as a complaint, the Magistrate is under an obligation to proceed further in accordance with the procedure laid down in Sections 200, 202 and 204 CrPC. 4. I have given my anxious consideration to the above argument. It is a settled proposition of law that in case if a protest petition is ordered to be treated as a complaint, the Magistrate is under an obligation to proceed further in accordance with the procedure laid down in Sections 200, 202 and 204 CrPC. I am fortified in my view by a decision of the Apex Court in Ashok Vs. State of UP, 1994 CrLJ 2132 wherein their Lordships have observed that whenever a protest petition is treated as a complaint, the Magistrate will have to proceed in accordance with the procedure laid down in Sections 200, 202 and 204 CrPC in Vinod Baid vs. State of Rajasthan, 2002 (2) RLR 56 while relying upon the aforesaid decision in Ashok vs. State of UP, (Supra) has also taken the same view. 5. In the case at hand, from the order sheets of the trial Court produced on record it is crystal clear that protest petition of the complainant was treated as complaint and according the complainant was given numerous occasions to get himself and his witnesses examined as required by the provisions of Sections 200 and 202 CrPC. But the complainant failed to do so and ultimately the trial Court after hearing arguments on cognizance took cognizance of the offence. The Chief Judicial Magistrate was under an obligation to proceed in accordance with the provisions of Sections 200, 2002 and 204 CrPC viz., to record the statements of complainant and his witnesses before passing the impugned order taking cognizance. The learned Magistrate having failed in doing so, the impugned order taking cognizance and that of the revisional Court deserve to be quashed and set aside on this score. 6. In the result, this petition is allowed. The impugned orders dated 012.2002 and 12.04.2004 passed by the trial Court and the revisional Court, respectively are quashed and set aside. The trial Court is directed to pass fresh order after following the procedure laid down in Sections 200, 202 and 204 CrPC.