Varadaraju vs State and others

David Annoussamy, J.—This is a revision petition against an order of the Judicial Second Class Magistrate No. III, Madurai, dismissing a complaint.

The case of the Petitioner is as follows: The Petitioner who is a Headmaster, complained before the police about several offences committed by four teachers working under him. The police has filed a final report to the effect that the offences appeared to have been committed are under Ss.341 and 324 I.P.C. The complainant, finding that the facts amounting to offences under Ss.341, 324, 354 and 379, I.P.C, were not taken into account by the Police, filed a private complaint before the Magistrate. The latter, by order dated 25th January 1984(sic), dismissed the complaint u/s 190 Cr.P.C., for the reason that the complainant had given a complaint to the police who had filed a final report upon investigation and that the same had been taken cognizance of in C C.389 of 1981 in the said court, and further observed that if the complainant was aggrieved by the omissions of charges for a lesser offence, he could give evidence during trial and ask for alteration of the charge under S. 26(sic), Code of Criminal Procedure It is against that order present revision petition has been preferred.

First it is to be observed that the Magistrate has no power to dismiss a complaint u/s 190 , Code of Criminal Procedure. He can dismiss it only u/s 203 after considering the statements, if any, of the complainant and of the witnesses, and the result of the inquiry or investigation, if any, u/s 202. u/s 190, the Magistrate can only abstain from taking cognizance if the allegations are flimsy or fanciful.

Secondly, the additional offences alleged by the complainant in his private complaint are under Ss.354 and 379 I.P.C. They do not constitute lesser of offences vis-a-vis those under Ss.341 and 324 I.P.C, so as to apply Section 222.

Thirdly, the power given to the Court u/s 216 , Crl. P.C, to alter or add to any charge is no excuse for not framing a charge which is ostensible at the beginning itself Framing additional charges after the beginning of the trial would present some procedural difficulties as indicated in Section 216 itself. Therefore, the power under this section is to be used when some charges could not be framed in spite of all the care and effort at the beginning. It is not meant to encourage framing incomplete charges reserving the possibility of adding in the course of the trial.

Therefore, the Magistrate was wrong in not taking cognizance of the offences and in passing the order of dismissal.

In the result, the revision petition is allowed, the order of the Magistrate is set aside and the Magistrate is directed to take cognizance of the Petitioner''s complaint and proceed with it in accordance with law. This matter shall be taken up by the Magistrate in whose Court the case filed by the police and numbered as C.C.389 of 1981 is pending.