A failure to examine the complainant as required under Section 200 Cr.P.C. is a fatal defect, invalidating criminal prosecution.

ORDER

The accused in C.C.No.474 of 2018 on the files of the Judicial First Class Magistrate Court - II, Thamarassery, have filed this petition under Section 482 Cr.P.C. to quash the proceedings against them in the aforesaid case. The learned Magistrate had initiated the proceedings in the said case on the basis of a private complaint filed by the 2^nd respondent.

2. The 2^nd respondent had filed the aforesaid complaint alleging that the 1^st accused (1^st petitioner), who is his younger brother, with the assistance of accused Nos.2 and 3 (petitioners 2 and 3), who are a distant relative and a document writer respectively, forged a will purportedly executed by the father of the complainant and the 1^st accused bequeathing his properties to the 1^st accused. The learned Magistrate examined three witnesses as CWs 1 to 3 and passed the orders to issue summons to the petitioners herein to answer the charges under Sections 465 , 468 and 471 IPC read with Section 34 IPC. However, the complainant was not examined as required under Section 200 Cr.P.C. It is against the aforesaid proceedings pending before the learned Magistrate that the petitioners have filed this petition.

3. Heard the learned counsel for the petitioners, the learned counsel for the 2^nd respondent and the learned Public Prosecutor representing the State of Kerala.

4. It is apparent from the case records that the learned Magistrate initiated the proceedings against the petitioners without the examination of the complainant as required under Section 200 Cr.P.C. The exceptions under which the Magistrate could dispense with the examination of the complainant, are given in the provisos to Section 200 Cr.P.C. As far as the present case is concerned, the complainant cannot claim any of those exceptions, since he has no case that he is a public servant acting in discharge of his official duty or that the Magistrate ought to have handed over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Thus, the non-examination of the complainant is a fatal defect which would strike on the root of the criminal prosecution launched against the petitioners. That apart, it has been brought out from the records that the issue involved in this case is now pending consideration of this Court in RSA Nos.1112 and 1145 of 2016. The validity of the will deed claimed by the 1^st petitioner is the subject matter in the aforesaid Second Appeals. Thus, the real issue to be resolved is one exclusively of civil nature. For that reason also, the criminal prosecution launched against the petitioners will not lie. Accordingly, I find that the prayer of the petitioners to quash the proceedings against them, deserves to be allowed.

In the result, the petition stands allowed as follows :

The proceedings against the petitioners / accused Nos.1 to 3 in C.C.No.474 of 2018 on the files of the Judicial First Class Magistrate Court - II, Thamarassery, are hereby quashed.

Sd/-