[1] The applicant – original complainant has challenged the judgment and order dated 16.06.2006 passed by the learned Metropolitan Magistrate, Court No.10, Ahmedabad in Criminal Case No.80/2005 whereby the learned Magistrate has dismissed the complaint filed by the applicant by exercising power under Section 203 of the Criminal Procedure Code.
[2] Heard Mr.Nitin M. Amin, learned advocate for the applicant and Mr.H. L. Jani, learned APP for the respondent – State.
[3] Learned advocate for the applicant has taken me through the allegations made in the complaint and also the different orders passed thereon. Learned advocate for the applicant has submitted that the applicant was constrained to file private complaint for the offences punishable under Sections 193, 211, 34 and 114 of the Indian Penal Code against the accused because, though the applicant had approached the police, the police did not take any action on the basis of the information given by the applicant. He has pointed out that on private complaint filed by the applicant on 05.08.2005 learned Magistrate passed an order for examination of the complainant – applicant herein on 08.08.2005. He has pointed out that the complaint was transferred to another learned Magistrate and the learned Magistrate then passed an order on 31.08.2005 calling for information as regards the action taken by the police in respect of the information given by the applicant on 04.05.2005. Learned advocate for the applicant has further pointed out that thereafter, simple verification of the applicant was recorded in support of the complaint on 08.06.2006 and at no point of time, other report was filed by the police in the proceedings of the complaint. Learned advocate for the applicant has made serious grievance to the effect that though the applicant was to examine himself in support of the complaint as also his wife and other witnesses, still, the learned Magistrate proceeded to decide the complaint especially when there was no report at all made by the police. Learned advocate for the applicant has submitted that the learned Magistrate has decided the complaint and dismissed the complaint of the applicant on the basis of simple letter of the police dated 02.12.2005. He has submitted that the procedure adopted by the learned Magistrate was unknown to the procedure of law contemplated under the provisions of the Criminal Procedure Code for deciding the private complaint. Learned advocate for the applicant has further submitted that the applicant – complainant was never heard nor was permitted to adduce evidence in support of the complaint. He has urged that in any case, learned Magistrate ought not to have taken note of the letter of the police and dismissed the complaint of the applicant without hearing the applicant and without affording opportunity to the applicant to examine himself as witness as also the other witnesses in support of the complaint. He, thus, urged that the order passed by the learned Magistrate dated 16.06.2006 is required to be quashed and set aside and the matter is required to be remanded to the learned Magistrate.
[4] As against the above arguments advanced by the learned advocate for the applicant, learned APP for the respondent has submitted that since the applicant himself has stated in his complaint that he had approached the police, the learned Magistrate did not commit any error in calling for the report from the police. He has further submitted that since the police report had already been approved by the learned Magistrate about the steps taken in respect of the application made by the applicant and since, the police did not find commission of any offence, the learned Magistrate had rightly taken note of the letter submitted by the Police Inspector dated 02.10.2005 and has rightly dismissed the complaint of the application under Section 203 of the Criminal Procedure Code. He has further submitted that the learned Magistrate has followed proper procedure of law and since the applicant did not adduce any evidence in support of his complaint, it cannot be said that the learned Magistrate has committed any error in dismissing the complaint filed by the applicant.
[5] Having heard learned advocates for the parties and having gone through the order passed by the learned Magistrate and also having perused the private complaint filed by the applicant, I am of the view that the learned Magistrate has not followed proper procedure in dealing with the private complaint filed by the applicant. It is pertinent to note here that on the complaint filed by the applicant, there was already an order of the learned Magistrate for examination of the complainant. The said complaint was then transferred to another Magistrate and as per order dated 31.08.2005 of the learned Magistrate, no action has been taken by the police in respect of the application dated 04.05.2005 made by the applicant to the police. That order dated 31.08.2005 was passed before taking any cognizance of the complaint by the learned Magistrate. It appears that thereafter, simple verification of the complainant was then recorded in support of the complaint on 08.06.2006 and, thereafter, straightway on the basis of the letter written by the police, the learned Magistrate by exercising powers under Section 203 of the Criminal Procedure Code, dismissed the complaint. The learned Magistrate has neither allowed the applicant to adduce evidence nor permitted him to lead any evidence of other witnesses in support of the complaint. It is pertinent to note here that there was no investigation made by the police pursuant to the order passed by the learned Magistrate after taking cognizance of the offence. There was no question of referring the complaint of the applicant to the police for investigation. Be that as it may, vide order dated 31.08.2005, the learned Magistrate called for the information as regards the action taken pursuant to the application dated 04.05.2005 made by the applicant, but that itself is not enough for coming to the conclusion that there is no truth in the complaint filed by the applicant. When there was a private complaint, if cognizance of the complaint not taken the police could have been directed to assist the learned Magistrate by investigating the complaint or the learned Magistrate after taking cognizance, ought to have permitted complainant to adduce evidence on oath by examining himself and the other witnesses in support of the complaint. Since this procedure is not adopted by the Magistrate, the learned Magistrate could not have dismissed the complaint of the complainant.
[6] In view of the above, I find that the order passed by the learned Magistrate dismissing the complaint without affording any opportunity to the applicant cannot stand scrutinizing of law. The order passed by the learned Magistrate is required to be quashed and set aside. The matter is required to be remanded to the learned Magistrate, to follow the procedure afresh from the beginning by permitting the applicant to lead evidence in support of his complaint, if the cognizance is to be taken.
[7] Accordingly, the application is partly allowed. The order dated 16.06.2006 passed by the learned Metropolitan Magistrate, Court No.10, Ahmedabad in Criminal Case No.80/2005 is hereby quashed and set aside. The matter is remanded to the learned Magistrate to proceed with the complaint filed by the complainant afresh as per the procedure prescribed under Section 202 of the Criminal Procedure Code and to decide the proceedings by giving full opportunity to the applicant in accordance with law. Rule is made absolute to the aforesaid extent. Record and Proceedings to be sent back to the concerned Court immediately.
[ C. L. SONI, J. ] vijay