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Calcutta High Court
Abhaybswari Debi vs Kishori Mohan Banerjee on 21 April, 1914
Equivalent citations: (1915) ILR 42 Cal 19
Author: Coxe
Bench: Sharfuddin, Coxe


Coxe, J.

1. This proceeding arises out of a complaint, purporting to be made on the part of Rani Abhayeswari Debi against the petitioners, accusing them of committing defamation. The complaint is not signed by the Rani, but by one Bhuban Mohan Chatterjee on behalf of the Rani. We are informed that there is no power of attorney on the record, and that there is no power of attorney authorizing the presentation of this specific complaint, although there is a general power of attorney authorizing the presentation of criminal complaints. The document was presented to the Chief Presidency Magistrate, who issued process against the accused; and thereafter the case was transferred. The Magistrate, to whom it has ultimately come, has referred for our decision the following point-“Whether the Rani can institute the case of defamation through her agent, Bhuban Mohan Chatterjee, and whether by doing so the requirements of Section 198 of the Criminal Procedure Code have been met with.”

2. If the Rani makes a complaint to a Magistrate the Magistrate is entitled to take cognizance of it. But before lie takes cognizance he must be satisfied that it is her complaint. It is comparatively unimportant by what means the complaint reaches the Magistrate, if really it is her own complaint.

3. But I hold that the Magistrate should be very loath to take cognisance of any complaint which is not presented in person. The words “at once” in Section 200 of the Code clearly indicate that ordinarily a complaint must be presented in person. And I do not think that a complaint should ever be accepted which is not signed by the complainant and is not preferred by a person duly authorized to prefer that specific complaint.

3. It is perfectly clear to me that the Magistrate in the Court below had no right to issue process against the accused persons in this case. It has been argued that, when a case is transferred under Section 192 of the Criminal Procedure Code before the complainant has been examined, process can issue without the examination of the complainant. That argument really has no application to the present case, because, as a matter of fact, process had been issued before the case was transferred. But in any case it is perfectly well settled that a process cannot be issued against an accused person, either by the Magistrate first taking cognizance of an offence, or by the Magistrate to whom the case is transferred under the proviso to Section 200 of the Criminal Procedure Code, unless and until the Magistrate issuing process has first examined the complainant; and this is perhaps more necessary in the case of a pardanashin lady than in other cases to enable the Magistrate to satisfy himself that the complaint is really her own action.’ In the present case if the complaint is ill-founded, it would be difficult, if not impossible, to fix the Rani, with any responsibility for the proceeding.

4. I see no reason, however, why the complainant should not be examined under Section 503 of the Criminal Procedure Code. The terms of that section are very wide. They refer not only to an enquiry and a trial but to any other proceeding. The section authorizes the examination of any witness, and a complainant is certainly, in my opinion, a witness. There is, indeed, less objection to the first examination of a complainant than to the examination of a witness under this section, inasmuch as, on the examination of a complainant before process is issued, the accused is not entitled to be present or to cross-examine.

5. It seems to me, therefore, that the proper course to adopt in this case is to say that, if the complaint on the record is the complaint of the Rani, a point on which we have no materials for a decision, the requirements of Section 198 have been satisfied. But the Magistrate was wrong in issuing process against the accused persons. In these circumstances it is best to quash the whole proceedings, giving liberty to the Rani to make such further complaint as she may be advised. If such complaint is made, the examination of the complainant under Chapter XVI of the Code may be made by a commission, which should be directed to a Magistrate.

Sharfuddin, J.

6. I agree.

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