The absence of a complainant during an enquiry under Section 202, Criminal P.C. does not justify the dismissal of the complaint, as there is no provision in the Code to compel the complainant to be present during such an enquiry.

The order of the learned Magistrate dismissing the complaint cannot be supported. The complainant alleged that the two accused had dishonestly and fradulently caused an old and insane woman aged about 90 years to execute two false documents, one purporting to be a deed of revocation of an earlier settlement and the other purporting to be a lease deed in favour of the accused themselves and thereby committed the offence of forgery. The learned Magistrate examined the complainant on oath, and then adjourning the matter, he passed an order stating that the complaint had been taken on file temporarily under Section 402, I.P.C. The matter was adjourned to 25-7-1972 for examination of one of the witnesses cited in the complaint. This proposed examination is part of the enquiry under Section 202, Criminal P.C. On 25-7-1972, the witness, who was to be examined, was present in Court, but the complaint, who is said to be a resident of Delhi, was absent. An application to condone her absence was filed. The learned Magistrate dismissed that application, and ultimately dismissed the complaint on the ground that the complainant was absent.

2. The procedure adopted by the learned Magistrate is not correct. There is nothing in the Code to compel the complainant to be bodily present during an enquiry under Section 202, Criminal P.C. The dismissal of the complainant cannot possibly be said to be under Section 259, Criminal P.C. because that section would apply only after the case had been taken on file and process issued to the accused. Here, the matter was at the stage of enquiry under Section 202, Criminal P.C. The learned Magistrate is in error in passing the order dated 10-7-1972, stating that the case was being temporarily taken on file under Section 420, I.P.C. There is no question of the case being taken on file only temporarily. Either the learned Magistrate makes up his mind to take the case on file on taking the sworn statement of the complainant or he decides to conduct an enquiry under Section 202, Criminal P.C. There is no midway by which the learned Magistrate could say that the complaint was being taken temporarily for a particular offence. Whatever that be, the order dated 25-7-1972 dismissing the complaint for the absence of the complaint is not sustainable. As I said, there is no provision in the Code to compel the complainant to be present when an enquiry under Section 202, Criminal P.C. is conducted, especially when she has already been examined on oath. She had been directed to produced one of the witnesses cited in the complaint, and it is not disputed that that witness was present for being examined by the Magistrate on the appointed day, viz., 25-7-1972. The learned Magistrate ought to have proceeded to examine that witness if he wanted to conduct the enquiry under Section 202, Criminal P.C.

3. Therefore, the order dated 25-7-1972 by the learned Magistrate is wrong and it has to be set aside. However, I am not inclined to direct further enquiry into the matter. A perusal of the complaint and the attendant circumstances go to show that the matter in controversy is a dispute more for the Civil Court than for the Criminal Court. As a matter of fact, it is brought to my notice that civil litigation is already pending regarding the validity of the settlement deed in favour of the complainant and its alleged revocation by the old lady, who is the settler. Under these circumstances. I think that this is not proper case where a further enquiry ought to be ordered. Therefore, though the order of the learned Magistrate is wrong, no further enquiry is ordered. The criminal revision case is dismissed.