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1. the Applicant Dr. Harvir Singh Has Filed This Revision Challenging The

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1. the Applicant Dr. Harvir Singh Has Filed This Revision Challenging The 486 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 REVISIONAL JURISDICTION (B) Code of Criminal Procedure-Section CRIMINAL SIDE 397 (2)-Revision by an alien-against the DATED: ALLAHABAD 29.06.2007 order of rejection of his application-in complaint ase-neither summoned by the BEFORE court-nor is witness of prosecution-held- THE HON’BLE VINOD PRASAD, J. apart from inter locutary order the revision on behalf of alien-not Criminal Revision No. 324 of 2007 maintainable-being barred by section 397 (2) of the Code. Dr. Harvir Singh …Applicant Held: Para 10 Versus State of U.P. and another …Opposite Parties The lower revisional court did not address itself at all to the statutory Counsel for the Applicant: provision under section 397 (2) Cr.P.C. Sri V.P. Srivastava and cogitated on the fact that the order Sri Akhilesh Srivastava passed by the Judicial Magistrate Court No. 3 Aligarh dated 17.11.2006, which as Counsel for the Opposite Parties: impugned before it, was purely an Sri Dharmendra Singhal interlocutory order and no revision against the said order was maintainable Sri Rahul Bhargava before it being barred by section 397 (2) A.G.A. Cr.P.C. (A) Code of Criminal Procedure-Section (Delivered by Hon'ble Vinod Prasad, J.) 202-Right of an alien-in complaint case- the Magistrate has sole power to direct the method of investigation-for third 1. The applicant Dr. Harvir Singh party No scope to intervene and compel has filed this revision challenging the the court to accept the application and order dated 22.01.2007 passed by affidavit on record-neither the witness Additional Sessions Judge, Court No. 11, nor complainant were summoned by the Aligarh in Criminal Revision No. 541 of Court-No right to participate. 2006 Ravi Kant Savita vs. State of Uttar Held: Para 11 Pradesh. There is yet another bizarre aspect of the 2. The short question which is matter and that is how a third person involved in this application is as to can challenge an order passed by a whether in a complaint case filed by the Magistrate when he has no right to complainant Dr. Harvir Singh can a third participate in the proceedings. If an alien to a proceeding does not have any right person (Ravi Kant Savita) be allowed to to participate in any proceeding, he also get his statement recorded at the stage of does not possess the right to challenge inquiry under section 202 Cr.P.C. against any order passed in the said proceeding. the wishes of the complainant and also The law does not confer any such right without being summoned by the on any body. R. K. Savita, respondent no. Magistrate for giving evidence. 2, being an alien to the proceeding had no right to maintain the revision before the lower revisional court, which was 3. The short facts of the case are that wrongly entertained by it and has been a complaint was filed by Dr. Harvir Singh illegally allowed. against Dr. R.N. Singh for offences under 2 All] Dr. Harvir Singh V. State of U.P. and another 487 section 406, 409, 420, 468 and 471 I.P.C. revisional court is under challenge in this Police Station Gandhi Park, district revision. A1igarh. In the aforesaid complaint case complainant Dr. Harvir Singh examined 5. I have heard Sri V.P. Srivastava himself under section 200 Cr.P.C. and his assisted by Sri Akhilesh Srivastava, witness Laxmi Chandra under section 202 learned counsel for the revisionist and the Cr.P.C. Trial Magistrate heard the learned A.G.A. on behalf of respondent complainant's counsel on the question of no. 1 as well as Sri Dharmendra Singhal summoning of the accused under section and Rahul Raghav on behalf of Ravi Kant 204 Cr.P.C. at this stage an application Savita, respondent no. 2. was filed by Ravi Kant Savita, an alien to the proceedings, that his application 6. The short question that arises for supported by an affidavit be kept on consideration is as to whether an alien to a record under section 202 Cr.P.C. The trial proceeding can file an application and Magistrate was of the opinion that an affidavit before the trial Magistrate while alien to a proceeding has got no right to he is conducting an inquiry under section be heard and that Ravi Kant Savita was 202 Cr.P.C. and can he compel the Court not a witness of complainant nor the to hear him. The ancillary question is as Court has given him a direction to lead to whether an alien to a proceeding can evidence and, therefore, he can not be participate in the inquiry against the heard at all. It opined that the wishes of the complainant or the Court. responsibility to prosecute the accused in For a better understanding of the said a complaint case lies with the question section 202 Cr.P.C. is quoted complainant. By such an opinion, which below: was just, legal and in accordance with the scheme of the Code of Criminal "202.Postponement of Issue of Procedure, the Judicial Magistrate, Court process: (1) Any Magistrate, on receipt No.3, Aligarh, who was inquiring in to the of a complaint of an offence of which he complaint filed by the complainant, Dr. is authorised to take cognizance or Harvir Singh, rejected the application which has been made over to him under filed by Ravi Kant Savita on 17.11.2006 section 192, may, if he thinks fit, and fixed 28.11.2006 for hearing the postpone the issue of process against the arguments on the question of summoning accused, and either inquire into the case the accused. himself or direct an investigation to be made by a police officer or by such other 4. The aforesaid order dated person as he thinks fit, for the purpose of 17.11.2006 passed by the Magistrate was deciding whether or not there is challenged by Ravi Kant Savita by filing sufficient ground for proceeding: Criminal Revision No. 541 of 2006 before Provided that no such direction for the Sessions Judge, Aligarh, which was investigation shall be made- heard and allowed by Additional Sessions (a) where it appears to the Judge, Court No. 11, Aligarh by passing Magistrate that the offence complained the impugned order dated 22.01.2007, of is triable exclusively by the Court of which order passed by the lower Sessions; or 488 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 (b) where the complaint has not (2) provides that in an inquiry under been made by a Court, unless the subsection (1) Magistrate may take complainant and the witnesses present evidence of witnesses on oath. The (if any) have been examined on oath proviso attached to sub-section (2) under section 200. provides that if the offence is triable by (2) In an inquiry under sub-section Court of Session, he shall take the (1), the Magistrate may, if he thinks fit, evidence of all the witnesses of the take evidence of witness on oath; complainant and examine them on oath. Provided that if it appears to the Magistrate that the offence complained 8. Under such a procedure of is triable exclusively by the Court of prescribed by the law, under Chapter XV session, he shall call upon the there is no scope for a third party to complainant to produce all his witnesses intervene into the matter as of right and and examine them on oath. participate in the proceedings and compel (3) If an investigation under sub- the Court to take his application and section (1) is made by a person not being affidavit on record or to record his a police officer, he shall have for that statement. The right of inquiry is vested in investigation all the powers conferred by the Magistrate. It is for the Magistrate to this Code on an officer in charge of a decide in what manner he is going to police station except the power to arrest conduct an inquiry under section 202 without warrant. Cr.P.C. Under the aforesaid section it is for the complainant to bring his witnesses 7. From a perusal of the aforesaid before the Court, examine them on oath to section it is clear that if a complaint is substantiate the charge levelled by him. If filed before a Magistrate under section some body is not a witness of the 190(1) (a) Cr.P.C., of which the complainant, he is not obliged to examine Magistrate is authorized to take him as a witness in the said inquiry, as he cognizance or which complaint has been is not a witness in the case at all. It is the transferred to him under section 192 choice of the complainant to chose the Cr.P.C., the Magistrate may postpone witness and to examine them on oath. issue of process against the accused and This choice of the complainant can not be either inquiry in to the case himself or curtailed or modified in any manner direct an investigation to be made by a whatsoever. The complainant is the best police officer or such other person as he person to watch his interest. It should be thinks fit, for the purposes of finding out left alone to him to decide in what manner as to whether there is sufficient ground and by what evidence he is going to for proceeding or not. The proviso establish the charge levelled by him attached to this Section provides that if against the malefactors.
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