IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. Criminal Misc. Petition No.1324/2003 S.B. Criminal Misc. Stay Application No. 1060/2003 Date of Order :: 25th May, 2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. A.N. Khan, Counsel for the petitioners Mr. Amin Ali, Counsel for the respondent BY THE COURT:
The petitioners have impugned the order dated 29th August, 2000, whereby the Additional Chief Judicial Magistrate No. 5, Jaipur City, Jaipur took the cognizance of the offence under Section 138 of Negotiable Instrument Act and proceeded against the petitioners.
Heard learned counsel for both the parties and carefully perused the relevant material on record including the impugned order.
Learned counsel for the petitioners canvassed that the learned trial court sans recording the statement of the complainant as also the other witnesses, took cognizance merely on the basis of complaint and issued summons for the appearance of the accused persons in the Court on 21st November, 2000. As per the scheme of CrPC for the trial of the case on a complaint case, it is mandatory for the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present if any, but in the instant case, learned trial court did not examine the complainant and merely on the basis of complaint, took the cognizance of the afore-stated offence and summoned the accused. Hence, the impugned order is contrary to law and perverse, which deserves to be set-aside.
E Converso, the learned counsel for the respondent defended the impugned order and stated the same to be just and proper. He contended that it is not mandatory for the Court to examine the complainant or any other witness. If the facts enumerated in the complaint were constituting any commission of offence, the Court was at its discretion to straight-way take the cognizance of the offence sans examining the complainant. The learned trial court’s order is just and calls for no intervention.
For the decision of the instant petition, it is relevant to reproduce the provisions of Section 200 of CrPC, which reads thus:
200. 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.
From a bare perusal of the scheme of trial on complaint cases, it is tangible that if a Magistrate taking cognizance of an offence on complaint proceeds under Section 200 of CrPC, he shall examine upon oath the complainant and the witnesses, if present. The legislature has used the word shall, which suggests that it is mandatory for the Magistrate taking cognizance to examine upon the complainant and the witnesses, if they are present. Thereafter the Magistrate may postpone the issue of process and if the Magistrate feels to conduct enquiry of the case himself, he can examine the witnesses or if he feels it to be investigated by the police, he may send it to the police for investigation, but examining the complainant on oath under Section 200 of CrPC is essential requirement if the Magistrate has to take cognizance of an offence on complaint.
In the instant case, the cognizance is found to have been taken by the learned trial court on complaint only sans examining the complainant on oath, which is totally contrary to the provisions of Section 200 of CrPC. The impugned order is not found to have been passed in accordance with the provisions of law and thus, the same deserves to be set-aside.
In view of above, the Criminal Misc. Petition is allowed and the impugned order dated 29th August, 2000 is set-aside. Learned trial court is directed to follow the procedure, as laid down under Chapter XV, which is related to the complaints to Magistrates. He should examine the complainant and the witnesses, if any and thereafter pass necessary orders afresh in accordance with the provisions of law.
Consequent upon the disposal of the criminal misc. petition, stay application, filed therewith, does not survive and that also stands disposed of.
(MAHESH BHAGWATI),J