A H PATHAN Vs. AMIN TEXTILES

JUDGEMENT

(1.) Against the order of dismissal of a complaint and discharge passed on 12-3-1986 in Criminal Case No. 103 of 1985 by Chief Metropolitan Magistrate, Ahmedabad, present petition is filed.

(2.) When a complaint is lodged before the Magistrate and if the Magistrate is taking cognizance on it, then as per the mandate, Magistrate shall have to examine on oath the complainant and the witnesses present if any and the substance of such examination shall have to be reduced to writing and shall be signed by the complainant, witnesses and the Magistrate. However, in case of a public servant, if while acting or purporting to act in discharge of his official duties complaint is filed, the Magistrate need not examine the complainant and the witnesses and may straightway issue process. This provision is made, it seems, with a view to save the valuable time of a public servant. On persual of the record, it transpires that on 17-1-1985 the process was issued and for service of the same to the accused matter was adjourned to 28-1-1985. It appears that on 17-10-1985 accused remained present. Thereafter, on 2-11-1985, accused No. 2 was present. However, the complainant was not present but on his behalf, a Junior Advocate of Mr. R. K. Shah, Advocate for complainant, was present. The matter was fixed for recording evidence on 16-12-1985. The moment the matter is fixed for recording evidence, Sec. 244 pertaining to cases instituted otherwise than on a police report will apply. Section 244 reads as under :-

(3.) Section 249 of the Criminal Procedure Code contemplates as to what order can be passed in the absence of complainant. Of course, it is at the discretion of the Court. It reads as under :-