1997(3) ALL MR 686
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

VISHNU SAHAI, J.

Ramesh Damodar Nagare Vs. Ashok Damodar Nagare And Anr.

Criminal Revision Application No.147 of 1991

1st July, 1997

Petitioner Counsel: Mr. SUDHIR HARDIKAR
Respondent Counsel: Mr. R. Y. MIRZA

Criminal P.C. (1973), Ss.200, 202 - Statement of Complainant - It is to be recorded prior to police investigation and not subsequent to it.

It is clear from a perusal of the provisions contained in Section 200 and 202 Cr.P.C., that statement of the complainant has to be recorded prior to police investigation and not subsequent to it. In the instant case, not only was the statement of the complainant recorded under Section 200 Cr.P.C. prior to police investigation, but it was also recorded under Section 202 Cr.P.C. after police investigation. As the complainant had already been examined under Section 200 Cr.P.C., in my view, it was not permissible for the JMFC, Nasik, to again examine him under Section 202 Cr.P.C. Such a view is also in tune with common sense. After all, it makes no sense that the same person should be examined again. [Para 5]

JUDGMENT

JUDGMENT :- By this revision, the petitioner has impugned the order dated 25-6-1990, passed by the JMFC, Nasik issuing against him process under Sections 452, 323, 504 and 506 IPC in Criminal Case No.258 of 1989, arising out of a complaint filed by the respondent no.1.

2. Facts in brief leading to the present petition are as under :-

On 16-8-1989, the complainant-respondent no.1 filed a complaint against the petitioner in the Court of JMFC, Nasik Road, with a prayer that the petitioner be punished for offences punishable under Sections 452, 323, 504 and 506 IPC. Immediately, after filing of the complaint, statement of the complainant (respondent no.1) was recorded under Section 200 Cr.P.C. Thereafter, the case was adjourned to 29-8-1989. On that day, the JMFC, Nasik was pleased to order investigation by the concerned PSI under Section 202 Cr.P.C. The report of the PSI which was in Marathi was received in the Court of the Magistrate on 30-1-1990. I am informed by counsel for the parties that it was in favour of the petitioner. On 13-2-1990, after perusing the police report, the JMFC, Nasik directed the complainant to lead evidence before issue of process. In appears that on 25-6-1990, in pursuance of the order dated 13-2-1990, statement of the complainant, was recorded by the JMFC who, thereafter, as mentioned in para 1 issued process under Sections 452, 323, 504 and 506 of IPC against the petitioner.

It is this order which is taken offence to by the petitioner and assailed by him, through the present petition.

3. I have heard Mr. Sudhir Hardikar for the petitioner and Mr. R. Y. Mirza, Additional Public Prosecutor for the respondent no.2-State of Maharashtra. It needs to be mentioned that although the respondent no.1 was served but he has not engaged any counsel. Grievance of Mr. Hardikar is that once having called for a police report under Section 202 Cr.P.C. it was not legally open to the learned JMFC to examine the complainant under Section 202 Cr.P.C. because, he had already been examined under Section 200 Cr.P.C. on 16-8-1989, the date on which, the complaint was filed.

Mr. Hardikar, further urged that since the learned JMFC, after filing of complaint, and after recording statement of the complainant, under Section 200 Cr.P.C. was not satisfied that process should have been issued, he called for a police report under Section 202 Cr.P.C. He urged that once the police report was received, there was no question of the complainant being examined again.

4. I have reflected over the said submission of Mr. Hardikar and find merit in it. A perusal of the provisions contained in Section 200 Cr.P.C. would show that after a complaint has been filed, statement of the complainant and that of the witnesses, if present, shall be recorded. A perusal of Section 200 Cr.P.C. r/w 202 Cr.P.C. would show that once the statement of the complainant and that of his witnesses, if present, has been recorded; a Magistrate may straight away summon the accused or may defer issuance of process against the accused till he enquires into the case himself or directs an investigation to be made by a police officer, or by such other person as he thinks fit. Section 202(b) of Cr.P.C. provides that where a complaint has not been made by a court, (as is the case here) no direction for an investigation can be made, unless the complainant and witnesses present (if any) have been examined on oath under Section 200 Cr.P.C.

5. It is thus clear from a perusal of the provisions contained in Section 200 and 202 Cr.P.C., that statement of the complainant has to be recorded prior to a police investigation and not subsequent to it. In the instant case, not only was the statement of the complainant recorded under Section 200 Cr.P.C. prior to police investigation, but it was also recorded under Section 202 Cr.P.C. after police investigation. As the complainant had already been examined under Section 200 Cr.P.C., in my view, it was not permissible for the JMFC, Nasik, to again examine him under Section 202 Cr.P.C. Such a view is also in tune with common sense. After all, it makes no sense that the same person should be examined again.

Regretfully, the order summoning the petitioner was only passed on 25-6-1990, after the complainant had been examined for a second time under Section 202 Cr.P.C. on that very day. This being the position, the order dated 25-6-1990, passed by the JMFC, Nasik, summoning the petitioner for various offences is clearly unsustainable in law and has to be quashed.

6. In the result, this petition is allowed. The order dated 25-6-1990 passed by the JMFC, Nasik, in Criminal Case No.258 of 1989, summoning the petitioner for offences under Section 452, 323, 504 and 506 IPC is quashed.

Rule is made absolute.

Petition allowed.