MOMA BHAT Vs. ALI BHAT

JUDGEMENT

(1.) A complaint u/s 379 RPC was lodged in the court of Judicial Magistrate (Munsiff) Anantnag on 19.9 1979. On the cornor of the complaint, the learned Magistrate directed as follows: -

(2.) THE trial court file has been sent for and I have examined the same, and have heard the learned counsel for the parties.

(3.) THE very first order passed on 19.9.79 by the learned trial Magistrate directing an enquiry into the matter u/s 202 Cr. P. C is prima facia not within the four corners of the law. It appears that learned Magistrate while sending the complaint u/s 202 for enquiry has not taken the trouble of reading the section itself as it has been held in several cases by this Court and other courts that the Magistrate would send the complaint for further enquiry u/s 202 Cr. P. C. after he records his satisfaction in this regard and gives reasons for doing so. There are other requirement which are to be fulfilled before a complaint could be sent u/s 202 Cr. P. C. for enquiry. It appears that the learned trial magistrate has not observed any of these conditions and without applying his mind to the facts of the case and without recording any reasons the Magistrate has sent the complaint for further enquiry to a pleader of the court. The revision petition could be dismissed on this ground alone. But however, the grievance of the petitioner before me is that he was the complainant in the complaint which was dismissed by the learned trial magistrate on 20.12.79 in default which could not have been done by him. The learned counsel for the other side submitted that file of the trial court does not indicate any where that any action had been taken by the learned magistrate on the report submitted to him u/s 202 by the person whom he had appointed to enquire into the matter. This of course, was the duty of the magistrate either to agree with the report u/s 202 Cr. P C. and direct the issuance of summons or warrants as the case would have been for the presence of the accused. The learned magistrate has not done so but on 20.12.79 when he should have taken the matter into consideration as to whether he should accept the report of the enquiry officer u/s 202 Cr. P.C. or not he found it feasible to dismiss the whole complaint because the complainant was not present. I agree with the learned counsel for the respondent that though the magistrate should have passed some order with regard to the report submitted to him u/s 202 yet the magistrate was not bound to wait for the complainant whose duty it was to pursue the matter in the court and then he know that the case was coming up on 20.12.79, it was his duty to appear in the court and as he remained absent the magistrate need not have waited for his presence and therefore, has rightly dismissed the complaint in default. During the arguments the court has been informed that a civil suit about the same matter is pending between the parties. On a perusal of the complaint itself it appears that complaint does not in fact disclose any prima facie offence under Ranbir Penal Code having been committed for all these reasons, I find no reason in this revision petition, which is hereby dismissed.