BABARKHAN RAHEMATKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(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.