RAGHUVEER SINGH Vs. PHOOLMAL

JUDGEMENT

(1.) This application is filed under Section 482, Cr.P.C. for quashing the complaint and proceedings of the Criminal Case No. 419/02 pending in the Court of Judicial Magistrate, Ashoknagar, District Guna.

(2.) Facts of the case are that respondent No. 1 Phoolmal filed a complaint under Section 307 read with Sections 34, 294, 506-B and Section 285, I.P.C. in the Court of Judicial Magistrate Class I, Ashoknagar. Judicial Magistrate forwarded the complaint under Section 156 for registration and for further investigation to the police office and directed the police to submit the report in the Court by next date of hearing by order dated 23-2-2001. Before forwarding the complaint the Magistrate, had not examined the complainant under Section 200, Cr.P.C. nor examined any witnesses under Section 22, Cr.P.C. On receipt of the report from the police he registered the case and directed to issue summons to the applicant by order dated 5-12-2001. This order is under challenge before this Court.

(3.) The main contention raised by learned counsel for the applicant is that the Magistrate has acted illegally and without jurisdiction in issuing the process without recording the statement of the complainant under Section 200 or any witnesses under Section 202, Cr.P.C. and, therefore, the entire proceedings deserves to be quashed. In support of his arguments the learned counsel for the applicant relied upon the judgment of Apex Court in the case of Rajindra Nath Mahato v. T. Ganguly 1972 CAR 84 : AIR 1972 SC 470 : (1972 Cri LJ 268), judgment of this Court in the case of Suresh Chand Jain v. Shri Mahendra Kumar Bhadkaria, 1997 (2) MPWN 234, and in the case of Ku. Shashi Mitra v. Smt. Bhawana, in M. Cr. C. 252/02 vide order dated 29-7-02. As regards the judgment of Apex Court in the case of Rajindra Nath Mahato (supra) the question involved before the Court was whether the Magistrate to whom the case was transferred could have issue process under Section 202, Cr.P.C. cognizance of the offence was taken by one Magistrate and the process was issued by another Magistrate to whom the case was transferred. In that case the apex Court has observed that before issuing process the Magistrate has to examine the complainant but the facts of the case are quite distinguishable. In that case the cognizance of the case was taken by the Magistrate Shri. S. K. Ganguly and the process was issued by another Magistrate Shri Sarkar to whom the case was by another Magistrate Shri Sarkar to whom the case was transferred and has not taken the cognizance of offence. In para 8 of the judgment the Apex Court has held that the Magistrate who was to take cognizance and transferred the case to another Magistrate the complainant was required to be examined under Section 200, Cr.P.C. The Apex Court has further observed that "there are certain exceptions with which we are not concerned in the present appeal." Thus, in that case the Court was not dealing with the question involved in the present case. The question involved in the present case is that whether recording of statement of complainant is mandatory in each and every case and this question was not present before the Apex Court.