Miss Lily Thomas vs V.K. Izuddin and Another

N.S. Ramaswami, J.—The order of the learned Magistrate dismissing the complaint cannot be supported. The complainant alleged that the

two accused had dishonestly and fraudulently caused an old and insane woman aged about 90 years to execute two false documents, one

purporting to be a deed of revocation of an earlier settlement and the other purporting to be a lease deed in favour of the accused themselves and

thereby committed the offence of forgery. The learned Magistrate examined the complainant on oath, and then adjourned the matter for enquiry u/s

202, Criminal P. C But while adjourning the matter, he passed an order stating that the complaint had been taken on file temporarily u/s 402, I. P.

C. The matter was adjourned to 25-7-1972 for examination of one of the witnesses cited in the complaint. This proposed examination is part of

the enquiry u/s 202, Criminal P. C. On 25-7-1972, the witness, who was to be examined, was present in Court, but the complainant, who is said

to be a resident of Delhi, was absent. An application to condone her absence was filed. The learned Magistrate dismissed that application, and

ultimately dismissed the complaint on the ground that the complainant was absent.

The procedure adopted by the learned Magistrate is not correct. There is nothing in the Code to compel the complainant to be bodily present

during an enquiry u/s 202, Criminal P. C. The dismissal of the complaint cannot possibly be said to be u/s 259, Criminal P. C. because that section

would apply only after the case had been taken on file and process issued to the accused. Here, the matter was at the stage of enquiry u/s 202,

Criminal P. C. The learned Magistrate is in error in passing the order dated 10-7-1972, stating that the case was being temporarily taken on file u/s

420, I. P. C. There is no Question of the case being taken on file only temporarily. Either the learned Magistrate makes up his mind to take the

case on file on taking the sworn statement of the complainant or he decides to conduct an en(sic) u/s 202, Criminal P. C. There is no midway by

which the learned Magistrate could say that the complaint was being taken temporarily for a particular offence. Whatever that be, the order dated

25-7-1972 dismissing the complaint for the absence of the complainant is not sustainable. As I said, there is no provision in the Code to compel

the complainant to be present when an enquiry u/s 202. Criminal P. C. is conducted, especially when she has already been examined on oath. She

had been directed to produce one of the witnesses cited in the complaint, and it is not disputed that that witness was present for being examined by

the Magistrate on the appointed day. viz., 25-7-1972. The learned Magistrate ought to have proceeded to examine that witness if he wanted to

conduct the enquiry u/s 202 , Criminal P. C.

Therefore, the order dated 25-7-1972 by the learned Magistrate is wrong and it has to be set aside. However, I am not inclined to direct further

enquiry into the matter. A perusal of the complaint and the attendant circumstances so to show that the matter in controversy is a dispute more for

the Civil Court than for the Criminal Court. As a matter of fact, it is brought to my notice that civil litigation is already pending regarding the validity

of the settlement deed in favour of the complainant and its alleged revocation by the old lady, who is the settlor. Under these circumstances. I think

that this is not proper case where a further enquiry ought to be ordered. Therefore, though the order of the learned Magistrate is wrong, no further

enquiry is ordered. The criminal revision case is dismissed.