Judgment : Petitioner Chandran is A-2 in C.C.No. 108 of 1992, pending on the file of Judicial Magistrate No. II, Arakonam, along with another, he is being prosecuted for having allegedly committed an offence punishable under Sec. 500, I.P.C. on the basis of a private complaint initiated by respondent Chellappa Mudaliar. 2. In this petition preferred under Sec. 482, Crl.P.C. to call for the records and quash the pending prosecution is not maintainable and an abuse of process of court, Mr.N. Jothi, learned counsel appearing on behalf of the petitioner, submitted that the mandate contained in Sec. 200, Crl.P.C. has not been followed for apart from the examination of the respondent, Magistrate had not shown, if any witnesses were present to be examined. Therefore, according to Mr.N. Jothi issue of process under Sec. 204, Crl.P.C. without following the provision under Sec. 200, Crl.P.C. will have to be held to be a nullity. 3. Though the respondent had been served long back, he has not chosen to appear before this Court either in person or through counsel. Hence, I have no alternative other than disposing of this original petition on its inherent merit in the absence of the respondent. 4. The contention of Mr.N. Jothi will have to be upheld. The record summoned from the court below shows that the sworn statement of the respondent was recorded on 26. 1992 and thereafter, learned Magistrate had chosen to take the case on file under Sec. 500, I.P.C. and posted the matter for further proceeding on 27. 1992. He had directed issue of summons to the accused on payment of process fee, while binding over the respondent. Nowhere, from the record, it is evident that the learned Magistrate had attempted to verify if the complainant had any other witness present with him, to be examined under Sec. 200, Crl.P.C. There is no endorsement that no witness was produced on that day by the complainant. The law laid down by this Court in Ramaswami Nadar v. Viswanathan, (1957)1 M.L.J. 157 , is the direct answer for this proposition. The law laid down by this Court in Ramaswami Nadar v. Viswanathan, (1957)1 M.L.J. 157 , is the direct answer for this proposition. In that case Somasundaram, J., has stated as hereunder: “Under the new section, it makes it incumbent on the Magistrate to examine the witnesses who were present in court on oath, and he can apply Sec.203 only if after examining the complainant and witnesses who are present in court, he finds sufficient ground for not proceeding with the case.” According to the learned Judge, the provisions of this sec. are mandatory and it is obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who are represent in court. Learned Judge has further observed that the Magistrate should have asked the complainant, when he was examined on oath, whether any witness was present in court and if no witness was present, the same should be mentioned in the order itself. 5. On the record available before me, it is apparent that this procedure had not been followed by the learned Magistrate. It may be that in Ramaswami Nadar’s case, (1957)1 M.L.J. 157 , the complaint was dismissed, where as process has been issued in the instant case. But, that can hardly make any difference while interpreting the provisions under Sec. 200 of the Code of Criminal Procedure. The provisions of Sec. 200, Crl.P.C. are salutary, in that it will be possible for the Magistrate to arrive at his judicial decision even at the initial stage not only in the basis of the statement upon oath of the complainant, but also on such statements recorded from witnesses if any, present. 6. A single Judge of the Calcutta High Court in Mac Colloch v. State, 1974 Crl.L.J. 182 and a Division Bench of the same High Court in Brahmanand Goyal v. N.C. Chakraborty, 1974 Crl.L.J. 1079 have taken the same view as that of Somasundaram, J. Since the respondent had absented himself, it has not been possible for me to verify if any of the witnesses cited by him were present with him on the date on which his sworn statement stood recorded. As I have already stated, the records available do not help to arrive at the conclusion on that aspect. Necessarily issue of process to the petitioner under Sec. 204, Crl.P.C. will have to be set aside. As I have already stated, the records available do not help to arrive at the conclusion on that aspect. Necessarily issue of process to the petitioner under Sec. 204, Crl.P.C. will have to be set aside. It shall stand so done. 7. However, the entire records shall stand transmitted to the trial Magistrate to proceed further under Sec. 200, Crl.P.C., on the basis of the complaint and sworn statement of the complainant already in existence and dispose the offence of complaint in accordance with law. This petition is allowed to the extent indicated above. 8. As has been observed by Somasundaram, J., in Ramaswami Nadar’s case, (1957)1 M.L.J. 157 , Magistracy in future will do well in asking the complainant as soon as he is examined on oath whether any witnesses were present in Court and if witnesses were present, it will be his duty to examine them on oath, but if no witnesses were present, he will do well to mention in the order itself that no witness were present according to the statement of the complainant of the advocate who appeared in court.