2007 (12) TMI 542

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.... complainant, has taken the case on file and issued summons to the petitioner on payment of process fee. Though the petitioner has taken up the proceedings before the learned Magistrate, the present petition to quash the proceedings has been filed before this Court on certain technical grounds. 3. Learned Counsel for the petitioner, at the first instance, has referred to the docket entries/endorsements made by the learned Magistrate on various dates. On 03.04.2003, the learned Magistrate made the following endorsement on the complaint made before him:     Check and Call on 10.4.2003,     and, on 10.4.2003, the following endorsement came to be made,         Complain....

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....spondent/complainant submits that the order dated 10.4.2003 cannot be construed as an order passed after taking cognizance of the offence. On 03.04.2003, though the complaint was presented before the learned Magistrate, the endorsement made was only to the effect, "Check and Call on 10.04.2003" and on 10.4.2003, at the time when the complainant was called for further proceedings, she was absent and therefore, the learned Magistrate dismissed the complaint for default and it does not mean that the Magistrate had applied his mind to the allegations made in the complaint and passed a judicial order so as to constitute the status of a final order. At best, the endorsements dated 03.04.2003 and 10.04.2003 must be construed as office endorsements....

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....laint on his file, it is mandatory that the Magistrate shall follow the procedure laid down under Section 200 Cr.P.C, which reads as follows:     200. Examination of complainant: A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate.     Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses:         (a) if a public servant acting or purporting to act in the discharge of his offi....

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....ng hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:     Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case,     (2) The provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. 9. Section 256 Cr.P.C is the only provision which deals with dismissal of a complaint leading to acquittal of the accused a....