SUBHADIP SARKAR Vs. RAHUL CHAKRABORTY

JUDGEMENT

(1.) Petitioner has assailed the proceeding of a complaint case being A.C. Case No. 601 of 2017 under Sections 406/420/384/506/120B of the Indian Penal Code pending before the learned Judicial Magistrate, 2nd Court, Alipore, South 24-Parganas including the order dated April 18, 2017 passed in the aforesaid case issuing process against the accused persons. The impugned order is reproduced herein below : -

(2.) Three issues have mainly been raised by the learned counsel for the petitioner challenging the legality of the aforesaid proceeding including the order issuing process. Firstly, it is submitted that without examining the complainant on solemn affirmation the process was issued by taking into consideration the affidavit of the complainant which was tendered in evidence. It is canvassed on behalf of the petitioner that in view of section 200 Cr.P.C. examination of the complainant who is not a public servant and the witnesses present, if any, is mandatory for the purpose of forming an opinion as to whether there was sufficient ground for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious. Fortifying his submission by the decision reported in the case of National Small Industries Corporation Limited Versus State (NCT of Delhi) & Others, (2009) 1 SCC 407 learned counsel for the petitioner sought to impress that the examination envisaged under Section 200 Cr.P.C. is physical examination of the complainant and not examination on affidavit. Therefore a Magistrate cannot act upon the affidavit of the complainant and/or witnesses unless the complaint is governed by a statute which empowers him to accept the affidavit of the complainant/witnesses, as the case may be as in a case under the Negotiable Instruments Act. Section 145 of the said Act specifically provides that the evidence of the complainant may be given by him on affidavit. Secondly, it has been argued that as the accused resided beyond the territorial jurisdiction of the trial court, enquiry under section 202 (1) Cr.P.C. which is mandatory, was not conducted in the instant case, prior to issuance of process. In the absence of such course being adopted by the Magistrate, he had no jurisdiction to issue process against the accused. In support of such submission, reliance has been placed on the case of Aroon Poorie versus Jayakumar Hiremath, (2017) 7 SCC 767. The other argument advanced on behalf of the petitioner is that there was no transaction between the complainant and the petitioner who married the accused no. 1 subsequent to the transaction in question. It has been urged that there is no justification for issuance of process against the petitioner since there is no allegation against him in the petition of complaint.

(3.) Learned counsel for the opposite party countered that non- examination of the complainant is a mere irregularity which is curable under Section 465 (1) of the Criminal Procedure Code. Referring to the petition of complaint it has been argued that since the averments in the complaint prima facie make out a case for proceeding against the accused, the order issuing process cannot be set aside on the mere plea of non-compliance of section 202(1) Cr.P.C. In support of such submission learned counsel for the opposite party relied upon the decisions reported in the case of Rajesh Bajaj Versus State NCT of Delhi & Others, (1999) 3 SCC 259 in Dipak Ghosh Dastidar versus Sanat Kumar Mukherjee and State, (2001) CalCriLR 392 Reference has also been made to the case of Shyamal Kumar Goswami & Another Versus Ashim Mukherjee, (2014) 1 CalCriLR 150.