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2006 DIGILAW 1758 (MAD)

Parthasarthy v. Sumathy

2006-07-12

R.REGUPATHI

body2006
Judgment : Per R. REGUPATHI, J. This petition has been filed seeking for a direction to the learned Judicial Magistrate No.I, Karur to take the private complaint on file under Section 200 Cr.P.C. and proceed with the case, in accordance with law. 2. I have heard the learned counsel for the petitioner and the respondent. I have perused the materials available on record. 3. Learned counsel for the petitioner submits that a private complaint has been filed on 19.9.2005 for the offence punishable under Section 500 I.P.C. Learned Magistrate initially returned the papers on 2.12.2005 stating “as to explain how this complaint is maintainable, during the pendency of a case in Crime No.21 of 2005”. The same has been represented by assigning reasons, that the pendency of the case in Crime No. 21 of 2005 may not stand in the way of taking the present private complaint on file. In spite of that, on 17.2.2006, once again the papers were returned for ‘proper compliance‘. Learned counsel for the petitioner submits that it is the duty of the learned Magistrate to take the private complaint on file, examine the complainant on oath and further, examine witnesses produced on the side of the complainant. Thereafter, as per the subsequent provisions of law, he may take up the private complaint on file, if sufficient ground for proceeding further is made out by the complaint or if not, dismiss the same. 4. To substantiate this contention, learned counsel for the petitioner relied upon the case reported in Adalat Prasad v. Rooplal Jindal and others (2005) MLJ (Crl) 166 (SC) : 2004 (4) CTC 608 wherein it has been held as under: “Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complaint and the witnesses has not made out sufficient ground for proceeding. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complaint and the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at the stage has materials to proceed, he can proceed to issue process under Section 204 of the Code. 14. Section 202 contemplates postponement of issue of process : it provides that if the Magistrate on receipt of a complaint if he thinks fit, to postponement the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a Police Officer or by other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code. 15. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code.” 5. Learned counsel for the respondent submits that a case in Crime No. 21 of 2005 has been pending before the same learned Magistrate, in which the offence alleged is under Section 498-A. The Petitioner herein, and his wife are A.3 and A. 4 in that case. Learned counsel for the respondent submits that a case in Crime No. 21 of 2005 has been pending before the same learned Magistrate, in which the offence alleged is under Section 498-A. The Petitioner herein, and his wife are A.3 and A. 4 in that case. It is submitted that, that case is under investigation and final report has not yet been filed. Under such circumstances, the present private complaint has been filed before the same learned Magistrate. 6. However, learned counsel for the respondent fairly submitted that he is in agreement with the proposition laid down by the Supreme Court in the decision cited supra and accordingly, an enquiry may have to be conducted by the learned Magistrate before coming to a conclusion one way or the other. 7. In the facts and circumstances of the case, Learned Judicial Magistrate No.I, Karur is directed to take up the private complaint on file under Section 200 Cr.P.C. and pursue further in accordance with law, as per the proposition laid down by the Supreme Court. The petition is ordred accordingly.