Heard learned counsel for the petitioner and learned AGA for the State and perused the record.
An application under Section 156 read with sub-clause (3) CrPC was moved by the petitioner before the learned Magistrate. Learned Magistrate without giving direction to the police concerned for investigation the matter, registered the matter as complaint case and asked the complainant to appear for statement under Section 200 CrPC on the next date.
Learned counsel for the petitioner states that on the date fixed, petitioner and his witnesses were present in the court for the statement under Sections 200 and 202 CrPC but without recording their statement, the complaint was dismissed by the learned trial court holding that dispute is of civil nature.
Learned counsel for the petitioner argued that no opportunity was being given by the learned trial court to produce the evidence before him to show that it was not a case of civil nature but offence was committed by the accused persons. It was further argued that without recording the statement under Sections 200 and 202 CrPC, it was not in jurisdiction of the learned trial court to dismiss the complaint under Section 203 CrPC. Section 203 CrPC provide that after considering the statement on oath of the complainant and his witnesses and the result of inquiry on investigation under Section 202 CrPC, the Magistrate may dismiss the complaint holding that no sufficient ground is there to proceed further in the matter. Learned counsel says that proper opportunity was not given by the learned Magistrate to him in the matter to bring the evidence and facts before the Court to establish prima facie case for summoning the accused.
Respondent No. 1 and 3 are represented by learned AGA and there is no need to issue notice to the respondent No. 2 on the facts and circumstances of the case subject to this condition that if any modification is required, an application is moved that shall be considered.
I have gone through the order passed by the learned Magistrate. Earlier case was fixed for recording the statement under Section 200 CrPC, but no cause has been shown why the statement of complainant under Section 200 and statement under Section 202 CrPC was not recorded. It is also not clear from the record while opportunity to the petitioner was given to file documentary evidence before the trial court in support of its case.
In the facts and circumstances, the impugned order cannot be held legal, valid and proper and it cannot be said that learned Magistrate has exercised his jurisdiction according to law in passing the impugned order.
Learned trial court's order is hereby set aside and learned Magistrate is directed to restore the case again and after giving proper opportunity to the petitioner for recording statement under Sections 200 and 202 CrPC and also permitting him for documentary evidence, decided the matter according to law. Accordingly, writ petition is dispose off.
Order Date :- 2.4.2010 Rakesh