MILAP CHAND JAIN, J. - (1.) THE facts leading to this application in brief are as follows: A complaint was filed by the S.H.O. Police Station, Sardarpura, Jodhpur under Section 186 I.P.C. 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 Dayal Singh No. 914 was deputed for this service. He visited the house of the petitioner on 31st December, 1985 at 7.15a.m Out side the house, he met the petitioner's son Ashok, who informed him that his father is sleeping, so he should come afterwards. Thereafter, he again came at 5 p.m. The petitioner met him and told him that the address is of Taparia Building and if the petitioner was not found 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 -1985 and process was issued to the petitioner. The petitioner submitted an application on 29 -8 -1986 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 under Section 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.
(2.) I have heard the petitioner. The petitioner urged that the learned Magistrate has seriously erred in not complying with the provision of Section 200, Cr. P.C. in as much as, he did not record the statement of the complainant and proceeded to register the case on 7 -3 -1986 without recording the complainant's statement. He further urged that while submitting the complaint under Section 186, I.P.C. the S.H.O. cannot be considered as a public servant. Reliance was placed by him on Division Bench Decision of the Calcutta High Court in Shyam Prasanua Das Gupta v. The State 1976 Cr. LJ 1517.
(3.) I have considered the above submissions of the petitioner;