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2005 DIGILAW 548 (ORI)

Rajat Kumar Jena @ Rajat Jena v. Sunita Jena

2005-09-20

R.N.BISWAL

body2005
JUDGMENT R. N. BISWAL, J. — The CRLMC arises out of a petition filed under Section 482 of Cr.P.C. challenging the order of taking cognizance of the offence under Sections 294/ 323/ 337/354/ 341/ 379/ 307/ 506/ 394/ 34 I.P.C. dated 13.1.2004 by the J.M.F.C., Patta¬mundai in I.C.C. case No.4 of 2004. Opp. Party No.1 filed the aforesaid case before the Court of J.M.F.C., Pattamundai to take action against the accused-petitioners in accordance with law. On perusing the complaint petition the J.M.F.C. took cognizance of the aforesaid offences against the petitioners on 13.1.2004. However, in order to pro¬ceed further, he directed the complainant to remain present along with her witnesses for examination on oath. On the same date also i.e. on 13.1.2004 the complainant alone was examined on oath. After perusing the statement of the complainant and the complaint petition the trial Court held that there was suffi¬cient ground for proceeding against the accused-petitioners and ordered to issue N.B. Ws of Arrest against them. The accused-petitioners have preferred this CRLMC for quashing of the said order. Learned counsel for the petitioners submits that the trial Court after taking initial statement of the complainant and on perusing the same and the complaint petition should have taken cognizance against the petitioners as per the provisions con¬tained under Section 200 of Cr.P.C. But he took cognizance first and thereafter on the same date directed the complainant to remain present in Court with her witnesses for being examined on oath to find out whether there was ground to proceed against the accused-petitioners, which is contrary to law. He further submit¬ted that since the offence under Section 307 of I.P.C. is exclu¬sively triable by Court of Session the trial Court ought to have examined all the witnesses mentioned in the complaint petition before ordering for issuance of warrant of arrest against them. Since it has not been done so, the order of taking cognizance and the subsequent orders passed thereto deserves to be quashed. Learned Addl. Standing counsel supported the order passed by the trial Court. Since it has not been done so, the order of taking cognizance and the subsequent orders passed thereto deserves to be quashed. Learned Addl. Standing counsel supported the order passed by the trial Court. “Section 200 of Cr.P.C. reads as follows :- 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 com¬plaint; 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 com¬plaint and the witnesses, the latter Magistrate need not re-examine them.” So the trial Court ought to have examined the complainant on oath and the witness present if any, and thereafter taken cogni¬zance against the accused-petitioners, but he took cognizance first, then on the same date enquired into the case under Section 202 of Cr.P.C. and ordered for issuance of warrants of arrest against the accused-petitioners which is against the provisions under Section 200 of Cr.P.C., quoted above. Now, it is to be considered whether the order of taking cognizance would be ren¬dered illegal on the ground that cognizance was taken against the accused-petitioners before recording the statement of the com¬plainant. The purpose of examining the complainant is to ascer¬tain whether or not the contents of the complaint petition are genuine. In the case at hand, without examining the complainant on oath the trial Court took cognizance of the aforesaid of¬fences. Examination of the complainant on the same date after taking cognizance rendered the omission under Section 200 of Cr.P.C. only a curable error in procedure. If, it is intended to be regularised, the order of cognizance is to be quashed and the J.M.F.C. is to be directed to record the initial statement of the complainant and consider the question of taking cognizance basing on such statement together with the complaint petition. If, it is intended to be regularised, the order of cognizance is to be quashed and the J.M.F.C. is to be directed to record the initial statement of the complainant and consider the question of taking cognizance basing on such statement together with the complaint petition. When the petitioner has already been examined, such an exercise would be futile. So, I am not in one with the submission of the learned counsel appearing for the accused-petitioners that the order of taking cognizance should be quashed. But as mentioned earlier after taking cognizance of the aforesaid offences the J.M.F.C. thought it proper to examine the complainant and her witnesses on oath before proceeding further. Except examining the complainant he did not examine any other witness. Once he took a view that he should examine the witnesses of the complainant to proceed further, he ought to have examined the witnesses, partic¬ularly when the case is exclusively triable by the Court of Ses¬sion in conformity with the provision contained under Section 202(1) and the proviso to Sub-section (2) of Section 202 of Cr.P.C., but he has not done so. As such the order of issuing N.B.Ws. of Arrest against the accused-petitioners cannot stand. Under such circumstances, the order of taking cognizance against the accused-petitioners under Sections 294/ 323/ 337/ 354/ 341/ 379/ 307/ 506/ 394/ 34 I.P.C. is confirmed, but the order of issuance of warrants of Arrest against them is hereby quashed. The J.M.F.C. is directed to comply with the provision contained under proviso to Sub-section (2) of Section 202 of Cr.P.C. and proceed with the case in accordance with law. With the above observation the CRLMC stands disposed of. CRLMC disposed of.