[1.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicants herein – original complainant to quash and set aside the impugned judgment and order dated 19.01.2012 passed by the learned trial Court – learned Additional Chief Judicial Magistrate, Surat in Criminal Miscellaneous Application No.1240 of 2011 by which the learned trial Court has dismissed the said complaint under Section 203 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) solely on the ground that the applicant – original complainant is not ready to verify the complaint on oath and/or is ready to give the verification as required under Section 200 of the CrPC. [2.0] Shri Vimal Purohit, learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Mohd. Yousuf vs. Afaq Jahan reported in AIR 2006 SC 705 more particularly para 11 of the said judgment and has submitted that as held by the Hon'ble Supreme Court, any Judicial Magistrate before taking cognizance of the offence, can order investigation under Section 156(3) of the CrPC and if the learned Magistrate does so, he has not to examine the complainant. It is submitted that as in the complaint, the applicant – original complainant prayed for the investigation under Section 156(3) of the CrPC, under the bonafide belief, the applicant – complainant did not give the verification, however, he was always ready and willing to follow the procedure as required under Section 200 of the CrPC and give the verification and examine himself. It is stated at the Bar that if the impugned order passed by the learned trial Court is set aside and the matter is remanded to the learned trial Court in that case applicant shall appear before the learned trial Court for examining himself of oath and for verification as required under Section 200 of the CrPC.
[3.0] Shri Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case.
[4.0] Heard Shri Purohit, learned advocate appearing on behalf of the applicant – original complainant and Shri Dabhi, learned APP appearing on behalf of the State and considered the impugned order passed by the learned trial Court dismissing the complaint. It appears from the impugned order that the learned Magistrate has dismissed the complaint under Section 203 of the CrPC solely on the ground that the complainant was not ready and willing to give verification and/or examine himself on oath as required under Section 200 of the CrPC. However, it appears from the complaint that infact the complainant requested for sending the complaint to the concerned police station under Section 156(3) of the CrPC. Therefore, it appears that the complainant was under the bonafide belief that as the learned Magistrate may order for sending the complaint for investigation under Section 156(3) of the CrPC and may not take cognizance and therefore, he is not required to be examined and/or he is not required to give verification as required under Section 200 of the CrPC and therefore, it might be that the complainant might not have given the verification and/or examine himself on oath as required under Section 200 of the CrPC. However, according to the learned advocate appearing on behalf of the applicant, there was no other intention on the part of the applicant not to follow the procedure as required under the CrPC and to give verification and/or examine himself on oath. Learned advocate appearing on behalf of the applicant has also stated at the Bar that if the impugned order is set aside and matter is remanded to the learned trial Court, he shall appear for verification and examining as required under Section 200 of the CrPC. Under the circumstances and in the facts and circumstances of the case, the aforesaid opportunity should be given to the applicant – original complainant.
[5.0] In view of the above and for the reasons stated above, present Revision Application succeeds. Impugned judgment and order dated 19.01.2012 passed by the learned Additional Chief Judicial Magistrate, Surat in Criminal Miscellaneous Application No.1240 of 2011 is hereby quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the said application / complaint afresh after giving opportunity to the applicant to follow the procedure as required under Section 200 of the CrPC and to give his verification and examine him on oath as required under Section 200 of the CrPC. Shri Purohit, learned advocate appearing on behalf of the applicant has stated at the Bar that the applicant shall remain present before the learned trial Court for verification and for following the procedure as required under Section 200 of the CrPC on 15th October 2012 with certified copy of this order and the learned trial Court to proceed with the said complaint / application after following due procedure as required under Section 200 of the CrPC. If still the applicant is not ready and willing to give his verification and/or examine himself on oath, it will be open for the learned Magistrate to pass appropriate order of dismissing the complaint under Section 203 of the CrPC in accordance with law and on merits. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(M.R. Shah, J.) menon