NRIPENDRA KUMAR BHATTACHARYYA, J. ( 1 ) BY this revision the petitioners have challenged the initial order of taking cogni zance being order dated 4/10/1991 passed in Case No. C/417/91 under S. 1208/420 and 420 of the IPC as passed by the learned Metropolitan Mag istrate, 8th Court, Calcutta, and all orders subse quent to that order. ( 2 ) THE short background of the case is that the Constituted Attorney of Makum Tea Company (India) Limited, Namdang House, lodged a complaint against the petitioners herein for an offence under S. 120b/420 and 420 of the IPC on certain allega tions before the court of the learned Metropolitan Magistrate, 8th Court, Calcutta. The complaint was registered there as Case No. C/417/91. The learned Magistrate examined the complainant and then on a finding that there are sufficient grounds for proceed ing against the persons viz. the present petitioners, ordered for issuance of process under S. 120b/420 and 420 of the IPC and thereafter in view of that he took cognizance of the offence, as indicated earlier, fixing 29-11-91 for return of the summons and for appearance of the accused. ( 3 ) MR. Balai Chandra Ray, learned Senior Advo cate, appearing with Mr. Y. Dastoor and Mr. S. K. Basu, learned Advocates, contended on behalf of the petitioners that the order of taking cognizance is bad on twin grounds. He contended that it is imperative of the law under S. 200 of the Code of Cr. P. that cognizance is to be taken first and then the complain ant and the witnesses present are to be examined and then the process can be issued if the learned Magis trate thinks so. He further submitted that after ex amination of the complainant and his witnesses present if cognizance is taken thereafter, that is not an irregularity but an illegality and that cannot be cured. In this connection, Mr. Ray referred to Ss. 190 (1) and 192 of the Code of Cr. P. From S. 190 (1) Mr. Ray pointed out that on receiving a complaint the Magistrate shall take cognizance and Mr. Ray also pointed out from S. 200 that after taking such cognizance the complainant and his witnesses present can be examined. In this connection, Mr. Ray referred to Ss. 190 (1) and 192 of the Code of Cr. P. From S. 190 (1) Mr. Ray pointed out that on receiving a complaint the Magistrate shall take cognizance and Mr. Ray also pointed out from S. 200 that after taking such cognizance the complainant and his witnesses present can be examined. He also referred to, as indicated earlier, S. 192 and pointed out therefrom that in case of filing a complaint before the Chief Judicial Mag istrate the Chief Judicial Magistrate will take cogni zance of that complaint and then he can transfer the case to some other Magistrate for enquiry or trial. According to Mr. Ray, this clearly indicates and shows that taking cognizance is a stage earlier than the stage by which the complainant and his wit nesses present can be examined. Mr. Ray referred to some decisions to press the point that if the cognizance is taken subsequent to the examination of the complainant and his witnesses present then the order of taking cognizance is bad. In that respect he referred to the case of Revanappa v. S. N. Raghunath reported in 1983 Cri LJ 321 and he particularly referred to para 7 of that decision to point out that there the Karnataka High Court has held, inter alia, that taking cognizance subsequent to the examina tion of the complainant and his witnesses present is an illegality. In that respect, he also referred to another decision of the Patna High Court in the case of Kanhai Raut v. Budhan Mahto reported in 1978 Cri LJ 667. From para 5 of that decision Mr. Ray pointed out that taking cognizance subsequent to the examination of the complainant and his witnesses present is an illegality and is not sustainable in law. He also referred to a Calcutta decision on that point in the case of A. C. Samaddar v. Suresh Chandra Jana reported in (1949) 53 Cal WN 270 : (1949) 50 Cri LJ 368 and he pointed out from the passage as at p. 272 "a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant upon oath". This Court in that decision has also held that, that is a mandatory provision. According to Mr. This Court in that decision has also held that, that is a mandatory provision. According to Mr. Ray, if the mandatory provision is not being ob served that will take the order within the realm of illegality and not irregularity and such illegality is not curable. ( 4 ) MR. Ray on the next place pointed out that as per the provision of S. 200 of the Code of Cr. P. it is the duty of the learned Magistrate to see that after taking cognizance he shall examine the complainant and his witnesses present in court. Mr. Ray pointed out from the order impugned that in the instant case there is no indication from the impugned order whether the other witnesses were examined or not and whether the other witnesses of the complainant were present in court on that day. Mr. Ray also pointed out from the petition of complaint that in the petition of complaint the complainant had cited the names of other witnesses giving an indication that those witnesses were present in court. But from the order taking cognizance nothing can be ascertained because the court has failed to record whether other witnesses for the complainant were present in court or not. Recording of the same is not a mere formality but this is also an imperative so that the court can understand whether other witnesses of the com plainant were present on that day or not. As the court has failed to record the same the order taking cognizance also suffers from legal infirmities. Mr. Ray also pointed out from the old Act that under S. 200 of the Old Code provision was there only to examine the complainant but by subsequent amendment it has been incorporated in S. 200 that along with the complainant his witnesses who are present in court are to be examined by the learned Magistrate. In this case, that has not been done, and in such circum stances, non-mentioning of the reason by the learned Magistrate will render the order of taking cogni zance illegal. ( 5 ) THE learned Senior Counsel for the opposite party, Mr. Dilip Kumar Dutt appearing with Miss Kabita Mukherjee and Mr. S. C. Saha Poddar, learned Advocates, in his usual fairness, did not dispute the contentions of Mr. Ray. ( 5 ) THE learned Senior Counsel for the opposite party, Mr. Dilip Kumar Dutt appearing with Miss Kabita Mukherjee and Mr. S. C. Saha Poddar, learned Advocates, in his usual fairness, did not dispute the contentions of Mr. Ray. He submitted that in case the Court is of the view that the order of taking cogni zance by the learned Magistrate is bad, then the matter should be sent down to the learned Magistrate for passing appropriate order in this matter. ( 6 ) HAVING heard the learned Advocates for the parties and considering the materials on record, I find that while taking cognizance on the complaint of the opposite party herein, the learned Magistrate committed wrong and illegality in not taking cogni zance first but he took cognizance of the offence after examination of the complainant. That is not the imperative of the law. On the contrary, it is the mandatory provision under S. 200 of the Code of Cr. P. that cognizance is to be taken first and thereafter the complainant and his witnesses so present to be examined. Thereafter, the question of issuance of summons will be coming in. The order impugned also suffers from another illegality i. e. the court has failed to record whether other witnesses for the complainant were present in court or not on that day. The trial court has failed to record that no other witnesses of the complainant were present. In such circumstances, the initial order of taking cognizance by the learned Magistrate, dated 4-10-91 cannot be sustained in law and also the subsequent orders thereto, namely, dated 4-10-91 are also not sustainable in law. ( 7 ) ACCORDINGLY, the revisional application is allowed. The order dated 4-10-91 passed by the learned Metropolitan Magistrate, 8th Court, Calcutta, in Case No. C/417/91 and also subsequent orders thereto dated 4-10-91 are hereby set aside. The learned Magistrate is directed to pass necessary orders according to law within fifteen days from the date of receipt of a copy of this order and the lower court records. ( 8 ) HOWEVER, this will not preclude the parties from pressing other points before the learned Magistrate and in any other appropriate forum. ( 9 ) LET a copy of this order along with the entire lower court records to sent down to the court below at once. ( 8 ) HOWEVER, this will not preclude the parties from pressing other points before the learned Magistrate and in any other appropriate forum. ( 9 ) LET a copy of this order along with the entire lower court records to sent down to the court below at once. ( 10 ) CERTIFIED copy, if applied for, be made available to the parties without delay. Office to take steps in the matter immediately. Petition allowed.