BHAGWANT SINGH Vs. SURJIT SINGH

JUDGEMENT

(1.) DOES the law essentially require the complainant to be present at the time of the presentation of the complaint, is the significant question which has been raised in this petition for revision. And it has arisen in this manner :-

(2.) THE word 'complaint' as defined in the Code of Criminal Procedure, 1973 means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person., whether known or unknown, has committed an offence, but does not include a police report. Obviously, the allegation thus made before a Magistrate is for a purpose and that is for inviting his attention to take action under the Code. Under Section 190(1)(a), a Magistrate is empowered to take cognizance of any offence on receiving a complaint of facts which constitute such offence. It is under section 200 of the Code that the examination of the complainant is required. It is provided therein that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing which shall be signed by the complainant and the witness, and also by the Magistrate. Prior to the provision now existing section 200 of the Code of Criminal Procedure, 1898 required a Magistrate taking cognizance of an offence on complaint to at once examine the complainant. On that language, the view which predominated was that since the presentation of the complainant had to be followed by the complainant being examined at once, it presupposed that the complaint had to be presented personally to achieve that object. However, the old Code did not provide any such pre-requisite specifically. In the present section 200 of the 1973 Code, the expression about examining the complainant at once was omitted and it has now been left by requiring the Magistrate tot examine the complainant. These words have significantly been omitted to obviate the controversy about the effect of the time interval between the receiving of a complaint and the complainant's examination. Thus it can safely be inferred that the predominated view that a complainant must present a complaint personally has been given a death blow. The mandate of law has now only been confined to the pre-requisite that a Magistrate receiving a complaint must examine the complainant and reduce the substance of his examination in writing and get it duly signed from the complainant, before he issues process. Needless to mention that the case of a public servant complainant is at a different footing.

(3.) NOW applying the aforesaid test to the present case, it is undisputed that the complainant was incarcerated in jail and physically unable to move out from those precincts to proceed to the Court. He could thus send the complaint even by post to the Magistrate with a view to his taking action under the Code. The mere fact that the complainant employed an Advocate to present his complaint to the Court cannot be put to a disadvantage; for the purpose sought to be achieved was the same. The Magistrate should have in the instant case then sent for the complainant from Jail for his examination. That power he undoubtedly had. Thus, in my view, the Magistrate's failure to adopt such procedure reveals an impropriety in his order and has led to miscarriage of justice. I have, therefore, no hesitation in quashing the said order.