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2005 DIGILAW 30 (GAU)

Sandip Roy Choudhury v. Nupur Saha

2005-01-17

I.A.ANSARI

body2005
ORDER I.A. Anasari, J. 1. The order, under challenge in the present revision, was passed, on 26.04.2004, by the learned Additional Chief Judicial Magistrate, Dhubri, in CR Case No. 787/2004, taking cognizance of offences under Section 420/422/406 IPC against the accused-Petitioner and directing issuance of warrant of arrest for Rs. 5,000/- against him. 2. I have heard Mr. R.K. Agarwal, learned Counsel for the accused-Petitioner, and Mr. G.N. Sahewalla, learned Sr. advocate, assisted by Mr. P. Bora, learned Counsel, for the complainant-opposite party. 3. Briefly stated, the facts giving rise to the present revision are as follows: A complaint, in writing, was lodged by one Sri Gopal Chandra Barman in the name of Smti. Nupur Saha, as complainant, describing himself as a duly constituted attorney of the said complainant, the complaint having been made against the present Petitioner as the accused. Based on this complaint, CR Case No. 787 of 2004 aforementioned was registered with Smti. Nupur Saha as the complainant. The learned Court below examined the said attorney, namely, Sri Gopal Chandra Barman and passed the impugned order, dated 26-04-2004, aforementioned. 4. The challenge to the impugned order, dated 26-04-2004, aforementioned is posed on the ground that in the case at hand, the learned Court below has taken cognizance and issued process without examining the complainant, who lodged the complaint, and thereby the mandatory provisions of Section 200 Code of Criminal Procedure have been violated, which vitiates the entire process of issuing of the warrant of arrest against the accused-Petitioner. 5. The question, therefore, which the present revision has raised in this: Can a Magistrate, taking cognizance of an offence, issue process without examining the complainant in terms of Section 200 Code of Criminal Procedure? 6. My quest for an answer to the above question bring me to Section 200 Code of Criminal Procedure which if I may quote, reads as follows: 200. 6. My quest for an answer to the above question bring me to Section 200 Code of Criminal Procedure which if I may quote, reads as follows: 200. Examination of complainant-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complainant is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to Anr. Magistrate under Section 192: Provided further that if the Magistrate makes over the case to Anr. Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them. 7. A careful reading of the provisions of Section 200 Code of Criminal Procedure shows that except when a complaint is lodged by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or when the Magistrate makes over the case for inquiry or trial to Anr. Magistrate under Section 192 Code of Criminal Procedure or when the complainant has already been examined before the complaint is made over under Section 192 Code of Criminal Procedure, the examination of the complaint, on oath, is essential. The object behind this examination is to ascertain if a prima facie case for issuing process against the accused has been made out. This apart, Section 200 Code of Criminal Procedure functions as a safety valve against false and frivolous complaints inasmuch as the statement of a complainant, if examined under Section 200 Code of Criminal Procedure, will expose him to consequences, which may ensue filing of false or frivolous complaint. Moreover, Section 200 Code of Criminal Procedure also provides protection against false or fictitious complaints, for, it may so happen that in a given case, a complaint may be lodged without the knowledge, information or consent of the complainant using his or her name as a complainant. Moreover, Section 200 Code of Criminal Procedure also provides protection against false or fictitious complaints, for, it may so happen that in a given case, a complaint may be lodged without the knowledge, information or consent of the complainant using his or her name as a complainant. Considered thus, there can be no escape from the conclusion, and I do hold, that the examination of a complainant, on oath, in terms of Section 200 Code of Criminal Procedure is mandatory except when the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint or when the Magistrate makes over the case for inquiry or trial to Anr. Magistrate under Section 192 Code of Criminal Procedure. 8. I am fortified in coming to the above conclusion from the decision in N. Harihara Iyer v. State of Kerala, reported in 2000 Cri. L.J. 1251 (Ker), wherein it has been held and laid down thus, "We, therefore, hold that the enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process. Therefore, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. 9. In addition to the above observations in N. Hariharan Iyer (supra), I add that the object of Section 200 is also to ensure that false, frivolous and fictitious complaints are not allowed to proceed and if this object has to be achieved, examination of the complainant cannot be avoided, for, the complainant may, in a given case, appear, at a later stage, and assert that the complaint has been lodged in his/her name without his/her knowledge and/or consent. 10. In the case at hand, the complainant, admittedly, was Smti. Nupur Saha, who is not a public servant, nor was the complaint made over to Anr. Magistrate under Section 192 Code of Criminal Procedure Sri Gopal Chandra Barman was not even cited as a witness in the complaint. 10. In the case at hand, the complainant, admittedly, was Smti. Nupur Saha, who is not a public servant, nor was the complaint made over to Anr. Magistrate under Section 192 Code of Criminal Procedure Sri Gopal Chandra Barman was not even cited as a witness in the complaint. Had Sri Gopal Chandra Barman lodged the complaint himself as an attorney of Smti. Nupur Saha, Sri Gopal Chandra Barman would have become the complainant and the situation, in such a case, would have been quite different; but when the complaint has been lodged in the name of Smti. Nupur Saha, the learned Court below ought to have examined her in order to find out as to how far she would stand by the allegations made in the complaint so as to ensure not only that a prima facie case for issuing of process against the accused is made out before the process is issued, but also to prevent the lodging of a false, frivolous and fictitious complaint in the name of the complainant, namely, Smti. Nupur Saha. 11. Because of what have been pointed out above, I am clearly of the view that without examining the complainant, namely, Smti. Nupur Saha, the learned Court below could not have legally considered the question of issuing process against the accused-Petitioner, for, the omission to examine the complainant is wholly against the scheme of the provisions of Section 200 Code of Criminal Procedure. 12. Situated thus, the impugned order, dated 26-04-2004, aforementioned is hereby set aside and quashed. The complaint is remanded to the learned Court below with direction to examine the complainant and proceed with the matter in accordance with law. I may hasten to, however, point out that the Magistrate, may, in addition to examining the complainant and the witnesses present, if any, hold, if need be, further inquiry under Section 202 Code of Criminal Procedure. 13. Before parting with this revision, it is made clear that this Court has not decided the question as to whether the contents of the complaint, in question, constitute any offence under Section 420/422/406 IPC or not, for, this Court has consciously refrained from expressing any view on this aspect of the matter inasmuch as the revision Petitioner has not a contended before this Court that the complaint, in question, does not make out any case for issuance of process. 14. Send back the LCR.