Decided on April 04,1972



- (1.) THE complainant, who is the landlady of the house and who is prosecuting her tenant, accused, for offences under Sections 323. 341. 354, 504 and 506,. IPC has come here in revision against the order of discharge passed by the learned Presidency Magistrate, 12th Court, Bandra, Bombay. The accused lives in the building belonging to the complainant and it is known as Krishna Bhuvan situate at Hindu Colony. Dadar. The accused who is the Inspector in the Customs department at Bombay is the tenant occupying a block on the second floor of the said1 building. On 25-12-70 at 5 p. m. the complainant went to her building to see her goods on the terrace as well as to inspect it. At the time when she was going down by the. 1 iron ladder from the third floor to the terrace on the second floor, the accused caught hold of her hand and pushed her and prevented her from going to the terrace. It is also her case that he assaulted her on the left side of the breast. He then asked his wife to bring a stick. But when the complainant shouted, the people gathered there. According to her the accused told her that the terrace was in his exclusive possession and. that she had no right to go there at all. The accused's wife and other persons who gathered there intervened and the accused was taken to his block. The complainant, therefore, went and reported about this incident to Matunga Police Station. She was sent to Sitn Hospital and was treated there.
(2.) THE learned Magistrate before framing the charge took the evidence of the complainant as well as her witness one Nilam Khot. It appears some litigation is also going on in the Court of the Small Causes between the parties. The. accused had filed a suit for declaration that he is the tenant of the terrace also and for an injunction against the landlady. He also obtained the injunction on 19-12-'70 by which he was allowed to use the terrace without any intervention of the landlady. The learned Magistrate after -considering the evidence of the complainant as well as her witness appears to have misconstrued the order of injunction which is also on record. According to the learned Magistrate the complainant had no ' right to go to the terrace at all; that the accused on the other hand had every right to prevent her from going to the terrace and that if the accused did any act in his right to defend his property, he -cannot be said to have committed any offence. This impresssion of the learned Magistrate is quite contrary to what the injunction is. The injunction obtained by the accused is that the landlady should not restrain the accused from going to the terrace. There is no injunction that the landlady is prohibited from using the terrace or going to the terrace. The learned Magistrate, therefore, appears to have construed the evidence not only of the complainant but also her witness from the view that he had taken of the injunction. He had. therefore, committed an error by approaching the evidence in an improper manner.
(3.) UNDER Section 252 (1) of the ' Criminal Procedure Code, in any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. Evidently, therefore, the Magistrate has to proceed to hear the complainant and also hear all the witnesses that might be produced by him in support of the complaint. So far as the present complaint is concerned, the complainant cited as many as six witnesses. Only one witness, however, appears to have been examined at the trial. The Magistrate has not endorsed that the complainant did not want to examine any other witness. But the learned advocate for the respondent contends here that she ought to have examined all these witnesses cited by her in the complaint on the same day and the fact that she did not keep her witnesses present shows that she did not want to examine any further witnesses. But the record does not show that the complainant was not willing to examine her other witnesses. Under Section 252 (1) of the Cr. PC the Magistrate shall proceed to hear the complainant and take all the evidence as will be produced. Before closing the evidence before charge, in my view, it was necessary for the Magistrate to ask the complainant if she wanted more of her witnesses to support her complaint- Because the complainant did not keep all the witnesses present on that day, therefore, it does not necessarily mean that she did not want to examine all the witnesses. The record, therefore, clearly shows that the learned Magistrate has also not complied with the requirement of Section 252 (1) of the Criminal Procedure Code.;

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