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2012 DIGILAW 177 (GAU)

Padumi Das v. Bibhashree Dass

2012-02-09

I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. With the help of this application, made under Section 482, Cr.PC, the petitioners, who are accused in Complaint Case No. 23/2008, have sought for setting aside and quashing the order, dated 16.05.2008, passed by the learned Sub-Divisional Judicial Magistrate (M), Pathsala, directing issuance of process against the accused-petitioners and also issuance of warrant for search and seizure of the properties, which the complainant had alleged to be her stridhan. None has appeared on behalf of the parties concerned. 2. While considering the present application, it needs to be noted that a complaint was made by the opposite party herein, namely, Smt. Bibhashee Das, wife of Rajib Das, her complaint being, in brief, thus : The complainant's marriage with accused Rajib Das was solemnized on 26.12.2007 and, in her marriage, a large number of articles were given to her by her parents and the said articles were entrusted with the accused No. 1, but the accused No. 1, in collusion with the remaining accused, started since after the complainant's marriage with him, demanding Rs. 1 lakh on the ground that the articles, which had been given at the time of her marriage, were not sufficient and as the complainant could not fulfill the demands raised by her husband and his relatives, they, on 03.04.2008, at about 10 p.m., assaulted the complainant and, again, on 24.04.2008, they tied her to the bed and when the informant informed her father, over phone, on 25.04.2008, her father rescued her by taking her away from her matrimonial house. On 07.05.2008, the complainant along with her father went back to the house of the accused to fetch the articles, which the complainant's parents had given at the time of marriage of the complainant, but the accused refused to give them any article and threatened that the complainant and her father would be killed if they ever came to collect the articles. 3. 3. Based on the above complaint, Complaint Case No. 23/2008 was registered under Sections 406/34, IPC Thereafter, the complainant, though present, was not examined under Section 200 Cr.PC; but her father was examined and, then, the learned Court below recorded that a prima facie case, under Sections 406/34 IPC, had been made out against the accused persons and, therefore, directed, on 16.05.2008, issuance of process against the accused-petitioners and search warrant for search and seizure of the articles, the list whereof had been given with the complaint. It is the legality of the order, dated 16.05.2008, which has been put to challenge in the present application made under Section 482, Cr.PC. 4. While considering the present application, it needs to be noted that taking of cognizance of an offence, under Section 190 Cr.PC, is different from issuance of process. A process cannot be issued against a person, named in a complaint as an accused, unless the Magistrate examines, in terms of the provisions of Section 200 Cr.PC, the complainant. It is only in certain circumstances that the complainant's examination, under Section 200 Cr.PC, has been dispensed with by the legislature. This becomes evident if the provisions, contained in Section 200 Cr.PC, are carefully looked into. For this purpose, Section 200 Cr.PC is reproduced below: 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 complaint is made in writing, the Magistrate need not examine the complainant and the wit-nesses- (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 another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them 5. From a bare reading of the provisions of Section 200 Cr.PC, it becomes abundantly clear that when a complaint is made, in writing, the Magistrate need not examine the complainant and the witnesses if the complainant is a public servant and he has made the complaint, while acting or purporting to act in discharge of his official duties or when the complaint has been made by a Court or if the Magistrate makes over the case for enquiry to another Magistrate. 6. In the present case, since the complainant was not a public servant and the complaint had not been made, while acting or purporting to act in discharge of the complainant's official duties and when no Court had made the complaint, in question, the learned Magistrate ought to have examined the complainant, under Section 200 Cr.PC, before deciding to issue process in exercise of his powers under Section 204 Cr.PC. Examination of the complainant unless, otherwise, dispensed with by the proviso to Section 200 Cr.PC., is mandatory, for, examination of the complainant is not a mere formality, but is aimed at ascertaining as to how far the complainant, when examined on oath, supports the allegations made in the complaint 7. A complaint it needs to be borne in mind, as defined in Section 2(d) Cr.PC., means, any allegation made orally or in writing to a Magistrate, with a view to his taking action, under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. A complaint is, therefore, one, which alleges that a person, known or unknown, has committed an offence and the allegation is so made to the Magistrate in order to make the Magistrate take action in accordance with law. 8. Issuance of process, as already indicated above, is an exercise of power under Section 204 Cr.PC. Without examining the complainant under Section 200 Cr.PC., if the complainant is, otherwise, in the light of the scheme embodied in Section 200 Cr.PC., required to be examined, no process can be issued against the accused named in the complaint. 9. 8. Issuance of process, as already indicated above, is an exercise of power under Section 204 Cr.PC. Without examining the complainant under Section 200 Cr.PC., if the complainant is, otherwise, in the light of the scheme embodied in Section 200 Cr.PC., required to be examined, no process can be issued against the accused named in the complaint. 9. In the case at hand, when the complainant had not been examined, the learned Court below could not have directed issuance of process against the petitioners and/or issuance of search warrant on the ground that a prima facie case, under Section 406 read with Section 34 IPC, had been made out In short, thus, the impugned order, dated 16.05.2008, is wholly against law and cannot be sustained. 10. In the result and for the reasons discussed above, the impugned order, dated 16.05.2008, is hereby set aside and quashed. The complaint is remanded back to the learned Court below for disposal in accordance with law. Send back the LCR.