A perusal of the complaint shows that eight witnesses were specifically named in the complaint. The learned Magistrate did not examine any of them. In the order dated 18th September, 2008, the learned Magistrate has not recorded reasons for not recording the statements of other witnesses specifically cited in the complaint. The law is well settled, which is found to have
been reiterated in the decision in the case of Mohinder Singh
(supra). After taking recourse to sub-Section (1) of Section
202 of the Cr.P.C., before dismissing a complaint by taking
recourse to Section 203 of the Cr.P.C., the learned
Magistrate has to consider the statements of the complainant
and his witnesses. In this case, the learned Magistrate has
not examined the other witnesses. The view taken by this
Court in the case of Nagawwa (supra) is no different.
5. Therefore, we find no error when the High Court came
to the conclusion that the complaint deserves to be remanded
from the stage of holding an inquiry under sub-Section (1) of
Section 202 of the Cr.P.C.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 561 OF 2012
DILIP KUMAR Vs BRAJRAJ SHRIVASTAVA & ANR.
Author: ABHAY S. OKA, J.
Dated: 26th JULY, 2023.
1. A complaint under Section 200 of the Code of Criminal
Procedure, 1973 (for short ‘the Cr.P.C.’) was filed by the
first respondent showing the appellant as an accused and
alleging offences punishable under Sections 323, 342, 500,
504, 506, 295-A, 298, 427 of the Indian Penal Code, 1860.
Considering the limited controversy involved in this appeal,
we are not adverting to the allegations made in the
complaint.
2. On 22nd August, 2008, the learned Magistrate passed an
order directing holding of an inquiry under sub-Section (1)
of Section 202 of the Cr.P.C. The order indicates that the
learned Magistrate intended to himself hold an inquiry.
Thereafter, the learned Magistrate recorded the statement of
only the first respondent/complainant and passed an order
dated 18th September, 2008, dismissing the complaint under
Section 203 of the Cr.P.C. By the impugned order, the High
Court has interfered with the said order on a limited ground.
The High Court was of the view that there was no proper
inquiry made by the learned Magistrate in terms of sub-
Section (1) of Section 202 of the Cr.P.C and therefore, the
High Court remitted the complaint to the learned Magistrate
from the stage of holding an inquiry under sub-Section (1) of
Section 202 of the Cr.P.C.
3. The learned Senior Counsel appearing for the appellant
submitted that it was not mandatory for the learned
Magistrate to record statements of other witnesses. He
submitted that after considering the statement of the first
respondent-complainant and the averments made in the
complaint and other material on record, the learned
Magistrate rightly came to the conclusion that the
allegations in the complaint were mala fide. He placed
reliance on the decision of this Court in the case of
Mohinder Singh vs. Gunwant Singh and Ors.1. He relied upon
what is held by this Court in paragraph 11 thereof. He also
pressed into service another decision of this Court in the
1 (1992) 2 SCC 213
case of Nagawwa Vs Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736
4. We have carefully perused the order dated 18th
September, 2008 passed by the learned Magistrate and earlier
order of 22nd August, 2008. Under sub-Section (1) of Section
202 of the Cr.P.C., the learned Magistrate has a discretion
either to inquire into the case himself, or to direct a
Police Officer to investigate and submit a report. In this
case, he took recourse to the first option. A perusal of the
complaint shows that eight witnesses were specifically named
in the complaint. The learned Magistrate did not examine any
of them. In the order dated 18th September, 2008, the learned
Magistrate has not recorded reasons for not recording the
statements of other witnesses specifically cited in the
complaint. The law is well settled, which is found to have
been reiterated in the decision in the case of Mohinder Singh
(supra). After taking recourse to sub-Section (1) of Section
202 of the Cr.P.C., before dismissing a complaint by taking
recourse to Section 203 of the Cr.P.C., the learned
Magistrate has to consider the statements of the complainant
and his witnesses. In this case, the learned Magistrate has
not examined the other witnesses. The view taken by this
Court in the case of Nagawwa (supra) is no different.
5. Therefore, we find no error when the High Court came
to the conclusion that the complaint deserves to be remanded
from the stage of holding an inquiry under sub-Section (1) of
Section 202 of the Cr.P.C.
6. The High Court has made certain observations including
on the issue of absence of sanction under Section 197 of the
Cr.P.C.. As the High Court has remanded the case for holding
an inquiry in terms of sub-Section (1) of Section 202 of the
Cr.P.C., it is obvious that the observations made in the
impugned order, including the observations on requirement of
sanction under Section 197 of the Cr.P.C., will have to be
held as tentative observations, which will have no bearing on
ultimate conclusion to be drawn by the learned Magistrate.
7. Subject to what is observed above, no case for
interference is made out. The appeal is, accordingly,
dismissed.
8. Pending application(s), if any, shall stand disposed of.
..................J.
(ABHAY S. OKA)
..................J.
(SANJAY KAROL)
NEW DELHI;
26th JULY, 2023.
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