M. C. JAIN, J. - (1.) THE facts leading to this application in brief are as follows: -
(2.) A complaint was filed by the S. H. O. Police Station Sardarpura, Jodhpur under Sec. 186 IPC against the petitioner, alleging that a notice of this court was sent for service through the Chief Judicial Magistrate, Jodhpur to the Police Station, Sardarpura, Jodhpur and constable Shri Dayalsingh No. 914 was deputed for this service. He visited the house of the petitioner on 31st Dec. 1985 at 7. 15 a. m. Out side the house, he met the petitioner's son Ashok, who informed him that his father is sleeping so he should come afterwords. Thereafter, he again came at 5 p. m. The petitioner met him and told him that the address is of Tapria Building and if the petitioner is not found there, there was no necessity to come to his house and he asked him to return the notice without service. He refused to accept the notice. The learned Magistrate took cognizance on the complaint on 7. 3. 86 and process was issued to the petitioner. The petitioner submitted an application on 29. 8. 86 for his discharge, as no case is made out and the allegations are false. An objection was also taken that as the complainant has not been examined u/sec. 200 so the entire proceedings are vitiated. The learned Magistrate heard the application and passed a detailed order whereby he rejected the petitioner's application. I have heard the petitioner. The petitioner urged that the learned Magistrate has seriously erred in not complying with the provision of Sec. 200, Cr. P. C. inasmuch as he didn't record the statement of the complainant and proceeded to register the case on 7. 3. 86 without recording the complainant's statement. He further urged that while submitting the complaint under Sec. 186 IPC, the S. H. O. cannot be considered as a public servant, Reliance was placed by him on a Division Bench decision of the Calcutta High Court in Shyam Prasanna Das Gupta V. The State (1 ). I have considered the above submissions of the petitioner. The question arises, that, when the S. H. O, has submitted the complaint under Section 186, I. P. C. was if necessary to record his statement u/sec. 200 Cr. P. C. and whether the entire proceedings are vitiated in the absence thereof. It is not disputed that the S. H. O. is a public servant and offence is one, which falls in the specified category of offences enumerated in sec. 195 Cr. P. C. Sec. 200 Cr. P. C. lays down that when the Magistrate takes cognizance of an offence on complaint, he 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. But proviso (a) to S. 200 Cr. P. C. lays down that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties, or a court, has made the complaint. The S. H. O. in the present case, has submitted the complaint while he was discharging his official duties. In my opinion, the present case is, therefore, covered under proviso to clause (a) of sec. 200 Cr. P. C.
(3.) IN the case, relied upon by the petitioner, it is noteworthy that in that case, the complaint was filed by the S. H. O. under Sec. 409 I. P. C. INstead of presenting the charge-sheet, a complaint was filed. Their lordships relying on the earlier decision, observed that where a police officer investigates a private complaint and thereafter submits a petition of complaint, he does so not as a public servant but as a complainant and as such his examination under Sec. 200 is essential. Non-examination of the said complainant would affect the jurisdiction of the Court to take cognizance and would vitiate the entire trial. It would appear from the observations in that case that he was not considered to be a public servant when he submitted the complaint after investigating the complaint. IN the present case, the position is different when the service of notice was refused by the petitioner and when these facts came to the notice of the S. H. O. , the S. H. O. proceeded to submit the com plant under Sec. 186 I. P. C. after investigating into the matter. Thus, he was acting as a public servant. So the present case is covered under clause (a) to the proviso of sec. 200 Cr. P. C. The authority relied upon by the petitioner is of no help to the petitioner. The falsity or otherwise of the allegations cannot be gone in to at this stage. It is a question of fact which can only be determined and decided after trial. IN my opinion, the petitioner's application was rightly rejected by the learned Magistrate. Thus, the application has no force, so, it is hereby dismissed in limine. .;