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2009 DIGILAW 609 (CAL)

Antony v. State

2009-08-11

KISHORE KUMAR PRASAD

body2009
Judgment :- (1) The instant application under Section 401 of the Code of Criminal Procedure read with Article 227 of the Constitution of India has been filed by the petitioner herein for setting aside the order dated 13.2.2009 passed by the learned Judicial Magistrate First Class -II Court, Port Blair in C.R. Case No. 163 of 2008 (Shri Antony v. Naidu) by reason whereof he dismissed the application dated 12.12.2008 filed on behalf of the petitioner praying for an order to permit him to examine himself on dock on Solemn affirmation before the process is issued upon the opposite party No.2 herein for commission of the offence under Sections 138/142 of the Negotiable Instrument Act read with Section 420 of the Indian Penal Code. (2) The short question that arises for consideration in the instant application is that, "Is it mandatory for the Magistrate to examine the Complainant who has filed complaint under Sections 138/142 of the N.I. Act read with Section 420 of the I.P.C. with an affirmation as regards truthfulness of the facts mentioned in the complaint before issue of process under Section 200 of the Cr.P.C?" (3) It so happened that Shri Antony, the petitioner herein filed a complaint in writing on 19.11.2008 against Shri Naidu under Sections 138/142 of the N.I. Act read with Section 420 of I.P.C. The said complaint contained a solemn affirmation by the complainant at the foot of it. The complainant (petitioner herein) also filed certain documents along with the complaint. (4) I have heard Mr. Jayapal learned Counsel for the petitioner and Mr. S.K.Mandal, learned Public Prosecutor, Port Blair appearing on behalf of opposite party No.1, the State at length. (5) Mr. Jayapal submitted that Section 190 in Chapter XIV of the Cr.P.C deals with the cognizance of offences by the Magistrates whereas Chapter XV deals with the procedure to be adopted in case of complaints to Magistrates. Section 190 of Cr.P.C mentions three modes of taking cognizance of the offence by Magistrate. Section 200 of Cr.P.C casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present if any, to reduce the substance of such examination in writing and to sign such substance. Section 190 of Cr.P.C mentions three modes of taking cognizance of the offence by Magistrate. Section 200 of Cr.P.C casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present if any, to reduce the substance of such examination in writing and to sign such substance. The proviso of Section 200, however, provides that when a complaint is in writing, the Magistrate need not examine the complainant and the witnesses, if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or by a Court or if the Magistrate makes over the case for inquiry or trial to another Magistrate. (6) Mr. Jayapal further submitted that setting a criminal law into motion is a serious matter and Section 200 has provided the procedure for safeguarding the interest of the accused. When the Magistrate takes cognizance on complaint and issues process against the accused, the accused is put on guard that prima facie case has been made out against him. (7) Mr. Jayapal, therefore, submitted that it is the duty cast on the Magistrate under Section 200 of the Cr.P.C to examine upon oath the complainant and his witnesses before dismissing the complaint under Section 203 of the Cr.P.C or before issuing of process under Section 204 of Cr.P.C. (8) Mr. Mandal, learned Public Prosecutor appearing for the State, opposite party No.1, on the other hand submitted that the N.I. Act, 1881 is a special Act and it is a complete code in itself. Mr. Mandal further submitted that the provisions of Sections 142 and 145 of the N.I. Act override the provisions of Section 200 of the Cr.P.C and no fault can be found with if the Magistrate does not examine the complainant and his witnesses on oath under Section 200 of Cr. P.C. and relies on solemn affirmation of the complainant below complaint before issuance of process under Section 204 of Cr.P.C. (9) While replying the submission of Mr. Mandal, Mr. Jayapal submitted that Section 142 of the N.I. Act does not exclude examination of the complainant and his witnesses on oath under Section 200 of Cr. P.C. and relies on solemn affirmation of the complainant below complaint before issuance of process under Section 204 of Cr.P.C. (9) While replying the submission of Mr. Mandal, Mr. Jayapal submitted that Section 142 of the N.I. Act does not exclude examination of the complainant and his witnesses on oath under Section 200 of Cr. P.C. He*submitted that Section 145 of the N.I. Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 of Cr.P.C. He further submitted that a specific reference was required to be made in those sections about dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In absence of it, it cannot be said that the provisions of N.I. Act would override the provisions of Section 200 of Cr.P.C. (10) I have carefully considered the rival submissions. I have also perused the provisions of Sections 4, 5, 190, 200, 202, 203 and 204 of Cr.P.C. as well as Sections 138, 142 and 145 of the N.I. Act. (11) The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegations in the complaint to proceed further in the matter. Under Section 200 of Cr.P.C, the Magistrate himself examines the complainant and the witnesses and records the substance of the same. The Magistrate is under obligation to reduce the substance of the statement in writing which is to be signed by the complainant and the witnesses. If an affidavit is accepted, it would go contrary to the provisions of Section 200 of Cr.P.C. In my opinion, Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200 of Cr.P.C. Sworn statement does not require any cross examination nor requires a recording of the statement at the instance of an Advocate. It is not an examination-in-chief, but it is the statement made before the Magistrate for his satisfaction. It is not an examination-in-chief, but it is the statement made before the Magistrate for his satisfaction. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. (12) In Mirza Iqbal Hussain v. State of U.P. in AIR 1983 SC 60 , it is held as under (Para 2): "Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Indian Penal code shall be investigated, inquired into, tried and "otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is clear from this provision that in so far as the offences under laws other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried." (13) In N.Harihara Iyer v. State of Kerala, 2000 Cr LJ 1251 (Kerala DB) it is held as under (Para 19) : "We, therefore, hold that the enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process. Therefore, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. We are, therefore, unable to countenance the argument advanced by Mr. Sahasranaman on the scope and application of Section 200 of Cr.P.C. Likewise, the argument advanced by Mr. The object is to test whether the allegations make out a prima facie case to enable him to issue process. We are, therefore, unable to countenance the argument advanced by Mr. Sahasranaman on the scope and application of Section 200 of Cr.P.C. Likewise, the argument advanced by Mr. Sahasranaman with regard to Section 142 of the Negotiable Instrument Act has no basis as it is undisputed that the taking of cognizance of offence under the said section has to precede the taking of sworn statement of the complainant and that cognizance should precede the recording of the sworn statement." (14) In Pankajbhai Nagjibhai Patel v. State of Gujarat, AIR 2001 SC 567 : 2001 C Cr LR (SC) 228, it is held as under: "The non-obstante expression provided in Section 142 is intended to operate only in respect of three aspects and nothing more. The first is this : insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque, the second is this: so far as the offence under Section 138 of the Negotiable Instrument Act is concerned such complaint shall be made within one month of the cause of action. The third is this: for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try the said offence." (15) The submissions advanced by the learned Prosecutor appearing for the State run contrary to what has been held by the Honble Supreme Court in Pankajbhai Nagjibhai Patel, ( AIR 2001 SC 567 ). In the said case, it has been held by the Honble Supreme Court that : "Non application of the Criminal Procedure Code on "any special jurisdiction or power conferred by any other law for the time being in force" is thus limited to the area where such special jurisdiction or power is conferred. The non-obstante Clause in Section 142 of the N.I. Act is intended to operate only in respect of three aspects and nothing more. The first is this: Under the Code Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. The first is this: Under the Code Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the N.I. Act says that insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the other holder in due course of the cheque. The second is this : Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the N.I. Act is concerned such complaint shall be made within on month of the cause of action. The third is this : Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than Indian Penal Code) such offence can be tried by any Magistrate. Normally Section 138 of the N.I. Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the N.I. Act says that for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of First Class shall try the said offence." (16) Thus it would be seen that non-obstante Clause in Section 142 of the N.I. Act does not relieve the Magistrate of his duty to examine the complainant and his witnesses on oath under Section 200 of Cr.P.C. It, therefore, follows that the provisions of Section 200 of Cr.P.C would continue to control the inquiry or trial of an offence punishable under Section 138 of the N.I. Act. (17) From the above discussions, I am of the considered view that the non-obstante Clause in Sections 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr.P.C though there is a solemn affirmation at the foot of the complaint by the complainant. (18) The submission of the learned Prosecutor for the State that if the Magistrate are required to record verification statement of the complainant under Section 200 of Cr.P.C in a complaint under Section 138 of the N.I. Act it would cause delay in of the said complaint also cannot be accepted for the simple reason that the procedure laid down by law has to be followed and secondly it would not take much time if the verification statement of the complainant is recorded on the same date on which the complaint is filed or on the following day when the matter is fixed. (19) In the light of the above observations, the impugned order of the learned Magistrate cannot be sustained. The result is that the instant application deserves to be allowed and I direct so. (20) The impugned order dated 13.2. 2009 passed by the learned Magistrate is set aside. (21) The learned Magistrate is directed to record the sworn statement of the complainant and his witnesses. Liberty is given to the petitioner herein to appear before the Court of learned Magistrate within ten days from the date of communication of this order for recording his sworn statement along with his witnesses if any. In such event, the learned Magistrate is directed to record the sworn statement of the complainant and the witnesses and if the Magistrate is satisfied with the materials, he may proceed in the matter in accordance with law. (22) All other contentions are kept open to the parties. (23) The subordinate Courts are required to follow the mandate of Section 200 of Cr.P.C in respect of complaints filed under Section 138 of N.I. Act even though there is a solemn affirmation by the complainant. This judgment may be circulated to all the Magisterial Courts of Andaman and Nicobar Islands for the sake of following uniform practice. (24) Criminal Section is directed to send the copy of this judgment to the concerned Magistrate immediately for information and necessary.