Judgment:
ORDER
Subhash Samvatsar, J.
1. This application is filed under Section 482, Cr.PC for quashing the complaint and proceedings of the Criminal Case No. 419/2002 pending in the Court of Judicial Magistrate, Ashoknagar, District Guna.
2. Facts of the case are that respondent No. 1 Phoolmal filed a complaint under Section 307 read with Sections 34, 294, 506B and Section 285, IPC, in the Court of Judicial Magistrate Class I, Ashoknagar, Judicial Magistrate forwarded the complaint under Section 156 for registration and for further investigation to the police office and directed the police to submit the report in the Court by next date of hearing by order dated 23-2-2001. Before forwarding the complaint the Magistrate had not examined the complainant under Section 200, Cr.PC nor examined any witnesses under Section 202, Cr.PC. On receipt of the report from the police he registered the case and directed to issue summons to the applicant by order dated 5-12-2001. This order is under challenge before this Court.
3. The main contention raised by learned Counsel for the applicant is that the Magistrate has acted illegally and without jurisdiction in issuing the process without recording the statement of the complainant under Section 200 or any witnesses under Section 202, Cr.PC and, therefore, the entire proceedings deserves to be quashed. In support of his arguments the learned Counsel for the applicant relied upon the judgment of Apex Court in the case ofRajendra Nath Mahato v. T. Ganguly, AIR 1972 CAR 84 (SC), judgment of this Court in the case of Suresh Chand Jain v. Shri Mahendra Kumar Bhadkaria, 1997 (2) MPWN 234, and in the case of Ku. Shashi Mitra and Anr. v. Smt. Bhawana and Anr., in M.Cr.C. No. 252/2002, vide order dated 29-7-2002. As regards the judgment of Apex Court in the case of Rajendra Nath Mahato (supra) the question involved before the Court was whether the Magistrate to whom the case was transferred could have issue process under Section 202, Cr.PC before examining the complainant. In that case the cognizance of the offence was taken by one Magistrate and the process was issued by another Magistrate to whom the case was transferred. In that case the Apex Court has observed that before issuing process the Magistrate has to examine the complainant but the facts of the case are quite distinguishable. In that case the cognizance of the case was taken by the Magistrate Shri S.K. Ganguly and the process was issued by another Magistrate Shri Sarkar to whom the case was transferred and has not taken the cognizance of offence. In Para 8 of the judgment the Apex Court has held that the Magistrate who has to take cognizance and transferred the case to another Magistrate the complainant was required to be examined under Section 200, Cr.PC. The Apex Court has further observed that 'there are certain exceptions with which we are not concerned in the present appeal'. Thus, in that case the Court was not dealing with the question involved in the present case. The question involved in the present case is that whether recording of statement of complainant is mandatory in each and every case and this question was not present before the Apex Court.
4. The other judgments referred by the applicant were in the cases of Sureshchand Jain and Ku. Shashi Mitra (supra). In both these cases this Court has taken a view that in every case examining the complainant is mandatory before issuing summons. However, after perusing the said judgments I find that this Court has taken the said view without noticing the judgment of Apex Court in the case of H.S. Bains v. The State (Union Territory of Chandigarh), AIR 1980 SC 1883. The facts of the said case are identical to the present case. In that case also Magistrate directed the investigation under Section 156 and called for the police report before issuing the process and the question which was raised was whether examining the complainant was necessary before issuing the process by the Court and whether the Magistrate has power to issue the summons without examining the complainant. Apex Court after referring to the various provisions of the Criminal Procedure Code in Para 6 has held as under :--
'It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of theoffence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceedings further. The Magistrate after receiving the police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present under Section 200, Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process.'
From the plain reading of the aforesaid portion of Para 6 it is clear, that the Magistrate on receipt of complaint can do one of the three things, first he may decide that there is no sufficient ground for proceedings further or he may take cognizance of the offence under Section 190(1)(b) on the basis of police report and issue process. This he may do without being bound in any manner by the conclusion arrived at by the police in their report or he may take cognizance of the offence under Section 190(1)(a) on the basis of original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 and if he adopts the third alternative he may hold ordirect an inquiry under Section 202 if he thinks fit. Thereafter, he may dismiss the complaint or issue the process as the case may be.
5. However, in the present case the Court has chosen to proceed under the second alternative and he has taken the cognizance on the basis of police report which he is empower to do in the light of the judgment of the Apex Court. Hence, I do not find any error in the procedure adopted by the Court below nor registering the case without examining the complaint and on relying on the report of the police.
6. In view of the aforesaid facts this M.Cr.C. has no force anddeserves to be dismissed and is hereby dismissed.