This revision has been filed against the order dated 28.10.2010 by which the learned Additional Chief Judicial Magistrate-Vth, Agra has dismissed the Complaint Case No. 1879 of 2008, under Sections 420, 406, 120-B I.P.C.
In brief, the facts of the case are that the complainant-revisionist, Sukhvir Singh Kohali, filed complaint against three accused persons. After filing of the complaint, statement was recorded under Section 200 Cr.P.C. and thereafter, statements of the witnesses-Pratibha Singh and Girish Madho were recorded under Section 202 Cr.P.C. Ultimately, the learned Magistrate dismissed the complaint vide order dated 11.8.2010, and against this order, the revisionist has filed this revision.
I have heard Shri Ali Hasan, learned counsel for the revisionist and learned A.G.A. Learned counsel for the opposite party no.2 is absent.
Learned counsel for the revisionist argued that a perusal of the order-sheets of the lower court indicates that on 4.6.2010 and thereafter on 25.6.2010, it was ordered that notice for appearance be sent to the complaint. The next date fixed in the case was 11.8.2010, on which date, the lower court, without noticing as to whether the notice served or not, dismissed the complaint due to his absent.
The Magistrate further observed in the impugned order that in view of the evidence recorded under Section 202 Cr.P.C., there is no sufficient ground for summoning the accused persons.
I have considered the entire facts and circumstances of the case and I am satisfied that the impugned order suffers from illegality and the same is liable to be set aside.
The Magistrate had ordered that notice may be sent to the complainant for appearance. Thus, it was the duty of the Magistrate to ascertain as to whether the notice has been served or not.
On 11.8.2010, the Magistrate simply recorded the absence of the complainant without making any observation as to whether the notice has been issued to the complainant or not and whether the notice has been served or not ?
It is further clear from the impugned order that the Magistrate has not given any reason as to why he discarded the evidence under Section 202 Cr.P.C. Section 203 of the Code of Civil Procedure runs as under :
"203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly recorded his reasons for so doing."
A perusal of the above noted section makes it evidently clear that while dismissing the complaint, the Magistrate was required to record the reasons in brief for so doing. In the present case, the Magistrate has simply observed that no ground is made out for summoning the accused in view of the evidence recorded under Section 202 Cr.P.C. The evidence has not been analysed and no reason has been recorded for discarding it.
In view of the above, the revision is allowed and the impugned order dated 11.8.2010 is set-aside.
The stay order, if any, is vacated.
The office is directed to send a copy of this order to the Magistrate concerned by FAX as well as by registered post A.D. After receipt of the certified copy of the order, the Magistrate concerned shall issue a notice to the complainant for appearance in the court on a particular date and after hearing the complainant, appropriate orders will be passed by the Magistrate.
Order Date :- 21.7.2011 AK