IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41320 of 2008 Ramesh Chandra Chaturvedi S/o Late Hera Prasad Chaturvedu, residing at Quarter No.C/28, Patrakar Nagar, P.O.& P.S. Kankarbagh,Patna ---------------- Petitioner Versus THE STATE OF BIHAR -------------- Opp.Party ----------- For the petitioner : M/S Rakesh Kumar Srivastava, and Diwakar Dwivedi, Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. ---------- O R D E R The complainant of Complainant Case No.898( C) of 2008 has filed this application for the quashing of the order dated 29.8.2008 passed by Sri Krishna Mohan Srivastava, learned Presiding Judge, Fast Track Court No.I, Patna in Cr.Revision No.404 of 2008, whereby he has affirmed the order dated 27.5.2008 passed by Sri Habibullah, Judicial Magistrate, First Class, Patna, in the said Complaint Case, whereunder the learned Magistrate had directed the complainant to produce one Abhinav Bhaskar for evidence in the enquiry under Section 202 Cr.P.C. It appears that the complainant had filed the said complaint against five persons arrayed as accused therein for commission of offences under Sections 423, 467, 468, 474 and 120B I.P.C. It was alleged therein that the complainant was fraudulently got married to one Prabha on 19.5.1977 under the influence of medicines and after about 15 days following the marriage when her madness was detected, the said fact was brought to the notice of the father and - 2 - family members of Prabha , but due to advice of the doctor and the assurances given by the family members of Prabha that her purported madness was only due to hysteria and that she would be cured on delivery of the first issue , the complainant reposing trust on the statements of the medical expert refrained from entering into litigation for dissolving the marriage with Prabha . It is further alleged that having faith in the assurances of the medical expert, the complainant took the risk and a male child Abhinav Bhaskar was born out of their wedlock on 13.7.1979. It is said that the Nana (maternal grand-father) of Abhinav had gifted a flat to Abhinav Bhaskar vide gift deed dated 17.1.1991. However, misfortune fell on the complainant and in the year 1998 even Abhinav became mad and had to undergo treatment for his madness under various Neuro- Psychiatrist but there was no improvement in his mental condition and he became more and more violent. He was eventually examined by Dr. Rajendra Narain Sinha , Consultant Psychiatrist, Psychological Medicine and Clinical Psycho-Analysis, on 13.2.2008 who referred him to Kanke Mental Asylum at Ranchi , where he was admitted on 15.12.2008. It is further alleged that during the period of insanity of Abhinav Bhaskar, all the accused persons conspired and in pursuance of such conspiracy they prepared forged and fabricated sale deed and having obtained the signature of Abhinav fraudulently, two months after the purchase of the stamp papers in the name of one of the accused persons got executed a forged and fabricated sale deed in respect of the flat and in pursuance of the said sale deed took - 3 - possession of the said flat. It is also alleged that in committing the said fraud the accused persons had intentionally and fraudulently mentioned in the said sale deed that the son of the complainant wanted to start his own business and being in need of money he had sold the flat. It appears that in the complaint petition filed on 11.4.2008 the complainant had cited only two witnesses and in order to make out a prima facie case , the complainant gave his statement on S.A. on 17.4.2008 and the evidence of his two witnesses were recorded on 28.4.2008 and 13.5.2008 respectively. That apart, the complainant produced documentary evidence by annexing the prescriptions of doctors treating Abhinav since 1998 and a copy of the fraudulently obtained sale deed whereafter the enquiry under Section 200 and 202 Cr. P.C. was closed on 13.5.2008. Arguments were advanced on behalf of the complainant on the point of taking cognizance on 22.5.2008 and 27.5.2008 was fixed for orders. However, curiously while passing the orders on 27.5.2008, the learned Magistrate directed the complainant to produce Abhinav , the insane son of the complainant , for his examination as a prosecution witness since he had not been cited as a witness in the complaint petition notwithstanding the fact that Abhinav at the relevant time and even on the date of passing of the order was admitted in the mental asylum at Kanke ( Ranchi). The primary grievance of the petitioner is that the learned Magistrate was not competent to compel the complainant to produce a - 4 - particular person as his witness notwithstanding the fact that he had not been cited as a witness in the complaint petition itself and that the revisional court on a wrong interpretation of the law had upheld the orders of the learned Magistrate. The first proviso of Section 200 Cr.P.C. which deals with the examination of the complainant states as follows: “Provided that when the complaint is made in writing the magistrate need not examine the complainant and the witnesses---------” Then again in Proviso (b) to Section 202 Cr.P.C. it has been provided that “Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.” From the above it would be manifest that where a complaint under Section 190 Cr.P.C. is placed before him, the learned Magistrate can under Section 200 Cr.P.C take cognizance of the offence made out therein and then to examine the complainant and his witnesses. In Vadilal Vs. Dattatraya ( AIR 1960 SC 113) and in Pramatha Nath Vs. Saroj Ranjan ( AIR 1962 SC 876) , it was held that under Section 203 the judgment which the Magistrate has to form must be based on the statement of the complainant and of his witnesses and the result of the investigation or enquiry, if any. From the above it would absolutely be clear that what the law required is that it is only the complainant and his witnesses who are required to be examined at the enquiry under Section 202 Cr.P.C. - 5 - and the court cannot insist upon the complainant to produce any other person than his witnesses as cited by the complainant in his complaint petition. The learned counsel for the State sought to justify the order of the learned Magistrate and the revisional court and for the purpose placed reliance on the decision of Abdul Khalique Vs. Surja Singh (AIR 1920 Pat 270), Ranjit Singh Vs. State of Pepsu (AIR 1959 SC 843) and Tula Ram Vrs. Kishore Singh (AIR 1977 SC 2401). Unfortunately, these decisions cited by the learned counsel for the State have no relevance so far as the question in issue in this application is concerned. In view of the discussions made above I am satisfied that both the courts below have traveled beyond the jurisdiction vested in them. Accordingly, the impugned order is set aside and the application is allowed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 29th July,2009 Nawal Kishore Singh/A.F.R.