POONAM PRASAD Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) B. C. Kandpal, J. By way of this writ petition under Article 226 of Constitu tion of India the petitioner has challenged the order dated 5. 12. 2007 passed by Judi cial Magiatrate, Roorkee in Complaint Case No, 2983 of 2007, Smt. Poonam v. Virendm Kumar Prasad and others, under sections 406, 120-B IPC. , P. S. Kotwali, Roorkee, District Haridwar as well as judgment and order dated 1. 2. 2008 passed by District & Ses sions Judge, Haridwar in Criminal Revision No. 12 of 2008, Smt. Poonam v. State of Utta rakhand, contained in Annexures 2 and 4 to the writ petition. .

(2.) BRIEF facts of the case are that marriage of petitioner was solemnized with Virendra Kumar Prasad on 24. 2. 2007 at Dehradun and after the marriage the hus band of petitioner and his family started cruelty with the petitioner. The petitioner filed a complaint against her husband-Virendra Kumar Prasad and family mem bers under sections 498-A, 323, 313 I. P. C. and 3/4 Dowry Prohibition Act and peti tioner filed an application under section 125 Cr. P. C. against her husband before Additional Family Judge, Roorkee. The learned Judicial Magistrate Roorkee vide order dated 5. 12. 2007 rejected the com plaint of the petitioner for returning the Stridhan due to lack of jurisdiction. Ag grieved by the order dated 5. 12. 2007 the petitioner filed a criminal revision before District and Sessions Judge, Haridwar and same was also dismissed vide judgment and order dated 1. 2. 2008. Feeling ag grieved by the aforesaid impugned orders, the petitioner has preferred the present writ petition before this Court.

(3.) IN order to resolve the controversy it would be pertinent to quote the provi sions of section 201 of Cr. P. C. which read as follows: "201. Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cogni zance of the offence, he shall, - (a) if the complaint is in writing, re turn it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Perusal of aforesaid provisions of sec tion 201 of Cr. P. C. makes picture very clear that if the complaint is made to a Magis trate who is not competent to take cogni zance of the offence, he shall pass an order for return of the complaint in order to pres ent the same to the proper Court with an endorsement to the effect that complaint is in writing or shall direct the complainant to file the 'complaint before the proper Court, in case, if the complaint is not in writing. IN the instant case, the complainant, who is the petitioner before this Court, filed the complaint before the Court of Judicial Magistrate, Roorkee in writing, therefore, if the Magistrate was of the opinion that the Court does not have the jurisdiction to take cognizance in the matter, then the proper course for the Magistrate was open to di rect the complainant to present the com plaint before the proper Court with an en dorsement to that effect instead of dismiss ing the same under the provisions of section 203 of Cr. P. C. The learned Magistrate as well as learned Sessions Judge thus have committed an illegality by ignoring the provisions of section 201 of Cr. P. C. The dismissal of complaint in view of the afore said provisions cannot be said to be just and proper.