Indu Kabra (Smt.) vs Elixir Infrastructure and Another

M.C. Garg, J.—In this matter, in support of the complaint only an affidavit has been filed on behalf of the petitioner in support of the allegation made therein which also includes prosecution of the petitioner u/s 420 IPC. It is submitted that notice could not have been issued to the petitioner on the basis of an affidavit only because section 200 Cr.P.C. requires examination of the complainant and his witnesses if any, which has not been done in this case. Reliance has been made to a judgment delivered by the Supreme Court in National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and Others, which requires that except in a case where public servant is the complainant, the examination of the complainant u/s 200 Cr.P.C. is mandatory. Another judgment has been relied upon by the learned Counsel for the petitioner in the case of Associated Cement Co. Ltd. Vs. Keshvanand, wherein the Hon''ble Apex Court has observed as under:-

Chapter XV of the new Code contains provisions for lodging complaints with magistrates. Section 200 as the starting provision of that Chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words ''shall examine on oath the complainant...'' The magistrate is further required to reduce the substance of such examination to writing and it ''shall be signed by the complainant''. u/s 203, the magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint.

In these circumstances perusal of the impugned order dated 9.5.09 shows that process was issued without examining the complainant. Against the impugned order, petitioner even filed a revision before the Addi. Sessions Judge, Bhopal but as per order dated 24.12.09, the petitioner could not succeed.

The revision was dismissed for a different reason that is to say that magistrate had no right to recall his order which has not been issued. In view of the judgment cited above, the petition filed by the petitioner is allowed with a direction to the magistrate to proceed further in the complaint by examining the complainant and his witnesses and then to pass an order of taking cognizance in case he finds material is there. The process issued against the petitioner is quashed. Let a copy of this order be sent to the trial court with a direction to proceed in the matter in the terms of what has been stated above.