Rajashekaraiah vs Radha

K.N. Phaneendra, J.—Petitioners have sought for quashing of the proceedings in C.C. No. 421/10 pending on the file of JMFC, Chikkanayakanahalli, arising out of PCR No. 35/10.

Learned counsel for the petitioners, strenuously contends before this Court that from the statements of the witnesses examined by the complainant, does not disclose any material against these petitioners for the alleged offences. Secondly, he contends that there is technical flaw in recording the statement of the complainant by the learned Magistrate. He allowed the learned counsel for the complainant to examine the complainant by way of examination-in-chief, which is bad in law.

In view of the above said two submissions, at this stage, I do not venture upon to discuss the merits of the case, because, it would have its own impact on the trial court. It would suffice, if I say that the procedure adopted by the learned Magistrate in recording the sworn statement of the complainant is bad in law, he allowed the learned counsel to lead the evidence by way of examination-in-chief, which is not at all contemplated under Section 200 of Cr.P.C.

Section 200 of Cr.P.C. reads as follows:-

Examination of complainant.

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or

(b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

The opening words in Section 200 of Cr.P.C. is mandatory in nature. It states that the Magistrate who is competent to take cognizance of the offences on complaint, he shall examine both the complainant and the witnesses present. The examination-in-chief of the witnesses only comes into picture at the time of recording the evidence under Section 244 of Cr.P.C., before framing of the charges. Therefore, it is the domain of the learned Magistrate and that it is between the learned Magistrate and the complainant that the complainant has to give his sworn statement before the Magistrate and after examining the said sworn statement and the complaint averments, the Magistrate has to pass appropriate orders either under Section 203 or under Section 204 of Cr.P.C. There is a serious procedural irregularity which cannot be later rectified. Therefore, it should be rectified by the learned Magistrate himself. On this ground alone, the petition deserves to be allowed.

Accordingly, the petition is allowed. The order passed by the learned Magistrate in issuing summons against the accused, particularly, the petitioners, is hereby set aside. Even against other accused also, the same order requires to be passed because this Court is of the opinion that the sworn statement as recorded, is not in accordance with law. The proceedings have to commence afresh. Therefore, the matter if remitted to the trial court with a direction to the learned Magistrate to record sworn statement of the complainant without the participation and assistance of the learned counsel for the complainant, and the Magistrate himself has to record sworn statement of the complainant and that the witnesses, and thereafter pass appropriate orders in accordance with law.

With these observations, the petition is disposed of.