Personal Presence Of Complainant Not Mandatory At The Time Of Filing When Party Is Represented By Advocate : Karnataka HC [Read Order]

The Karnataka High Court has held that  when a written complaint as contemplated by clause (a) of sub section 1 of section 190 of Criminal Procedure Code (CrPC) is filed and when the complainant is represented by the advocate the courts of magistrate cannot insist upon presence of complainant at the time of filing of the complaint.

In case a complaint alleging offence punishable under section 138 of the Negotiable Instruments Act is concerned, it is not necessary for the magistrates in every case to insist upon the personal presence of the complainant for examining him. If complaint is accompanied by an affidavit of the complainant or his authorised representative. After perusing the affidavit and other documents if any, if the magistrate is satisfied he can order issue of summons.

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty held :

"We find no provision in Cr.P.C which makes mandatory the presence of a complainant who files a written complaint as contemplated by clause (a) of sub-section (1) of Section 190 at the time of filing of the complaint in the Court of a learned Magistrate when he is represented by an advocate who files vakalath along with the complaint. As far as the requirement of the Magistrate examining a complainant on oath in accordance with Section 200 of Cr.P.C is concerned, except in cases governed by clauses (a) and (b) of the proviso to Section 200 and the complaints alleging offences punishable under Section 138 of NI Act, the examination of the complainant upon oath as per Section 200 is mandatory.

 As far as the complaint alleging an offence under Section 138 of the NI Act is concerned, it is governed by a special procedure as provided in NI Act and especially, Section 145 there of which overrides the provisions of Cr.P.C by providing that the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceedings under Cr.P.C". 

The Court added :

"when a written complaint as contemplated by clause (a) of sub-section (1) of Section 190 of Cr.P.C is filed and when the complainant is represented by an advocate, the Courts of Magistrate cannot insist upon personal presence of the complainant at the time of filing of the complaint. In case of a complaint alleging offence punishable under Section 138 of NI Act, it is not necessary for the Magistrates in every case to insist upon personal presence of the complainant for examining him upon oath as contemplated by Section 200 of Cr.P.C, if such a complaint is accompanied by an affidavit of the complainant or his authorized representative. After perusing the affidavit and documents, if any, if the Magistrate is satisfied, he can order issue of summons"

The court was hearing a suo-motu petition to address the various legal and technical issues faced by district/trial courts on starting of limited functioning of courts from June 1, following the Standard Operating Procedure issued by the high court.

The bench also held that Family Court cannot insist on personal presence of parties at the time of filing even for cases of divorce seeking mutual consent.

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