BANWARILAL MALIRAM KANODIA Vs. LAXMINARAYAN

JUDGEMENT

(1.) This revision application is preferred by the original complainant challenging the order dated 6th February, 1979 passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Bombay in case No. 3/Misc. of 1979 dismissing the complainant in question filed against the accused Respondent No. 1 herein, under the provisions of sections 420 of the Indian Penal Code.

(2.) After hearing Mr. T.D. Joshi, the learned Advocate for the petitioner complainant and Mr. M.K. Cheria, the learned Advocate for the accused, Respondent No. 1, as also Mr. K. Chopra, the learned Public Prosecutor for the State, I am of the view that the impugned order is not sustainable. This is a case where a written complaint was filed against the accused under section 420 of the Indian Penal Code. Without examining the complainant and without examining the complainants witness, who was present in the Court, the learned trial Magistrate has straightaway dismissed the complaint by the impugned order. Mr. Joshi, the learned Advocate for the complainant makes a serious grievance in this behalf contending that the procedure followed by the learned Magistrate was not warranted and was otherwise not justified in law. I find considerable substance in this contention.

(3.) Under section 200 of the Code of Criminal Procedure : A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate." There are two provisions to the aforesaid section 200 but neither of them are relevant to the present case. A plain reading of section 200 extracted above shows that it is the duty of a Magistrate taking cognizance of an offence on complaint to examine the complainant and witnesses present, if any, and to reduce the substance of such examination in writing which shall then be signed by the complainant and the witnesses as also by the Magistrate. In this particular case the aforesaid section has been observed in its breach. The complainant has stated in affidavit before this Court that the Magistrate did not examine him nor did the Magistrate examine the complainants witness one Gograj who was present in Court. If this be the position of facts and if the law be as mentioned hereinabove then conclusion must follow that the impugned order is liable to be set aside.