E.S.I.C. Vs. STATE AND OTHERS

JUDGEMENT

(1.) The petitioner has challenged the order dated 12-4-1994 passed by the learned Metropolitan Magistrate directing the complainant and witness (if any) to be examined under Sec. 200 Code Criminal Procedure before proceeding further with the complaint. In this connection, the only relevant provision of law to be seen is Sec. 200 Criminal Procedure Code. The said section contains a proviso which runs as under:-

(2.) The aforesaid proviso of Sec. 200 empowers the Magistrate that he need not examine the complainant when the complainant is a public servant acting or purporting to act in discharge of his official duties. The object of the proviso appears to be that in routine the public servant who makes a complaint in the discharge of his official duties need not be called to appear before the Magistrate for purpose of examination in relation to the complaint filed by him/her. It is not a private complaint in the sense that it is not a complaint from a private party. The complaint is actually in discharge of official duties of a public servant. Keeping this aspect in view, it should not be made a matter of routine that the public servant should be called for examination in support of the complaint filed by him. If the facts of a case so demand, the Magistrate can exercise his judicial discretion in insisting on examining a public servant in support of the complaint filed by him in discharge of his official duties but such cases would not be of routine nature. It is ultimately exercise of judicial discretion which has to be exercised in the judicious manner and unless and until the matter of the complaint is such so as to require examination of a public servant in person, the same need not be insisted upon. This appears to be the spirit behind the proviso when it says when the complaint is made in writing by a public servant in discharge of his official duties, the Magistrate need not examine the complainant.

(3.) With these observations, the impugned order dated 12-4-1994 is set aside and the matter is remanded back to the Metropolitan Magistrate, Delhi for fresh consideration as to whether the complainant and the witnesses (it any) need to be examined before issue of process. Order accordingly.