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2013 DIGILAW 384 (JK)

Ram Nath Sharma v. Baljeet Sharma

2013-07-09

ALI MOHAMMAD MAGREY

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1. This petition under Section 561-A Cr. P. C. has been filed by the petitioners seeking quashing of the complaint, in Case no.20/Complaint, titled Baljit Sharma v. Narinder Singh and four others, together with the order dated 26.04.2007 whereby the learned Judicial Magistrate, 1st Class (Mobile Magistrate, Electricity), Jammu, has taken cognizance of the complaint under Sections 451, 323, 341, 504, 506 RPC read with Section 34 of the RPC against the petitioners and ordered issuance of process against them. 2. At the hearing, none represented respondent no.1, i.e., the complainant in the complaint. Heard learned counsel for rest of the parties. 3. The impugned order records that "the statement of the complainant, on oath, has been recorded". It is also mentioned therein that "his witness, namely, Youg Raj Sharma has also supported him to the extent of the occurrence". But from perusal of the certified copies of the statements in question, it transpires that the said statements have been recorded without administering oath. Further, it is not stated in the order that the statement of Youg Raj Sharma, too, was recorded on oath. These statements could not, therefore, form basis for considering issuance or otherwise of process under Section 204 of the Code of Criminal Procedure. 4. Section 200 Cr. P. C. mandates that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing. Failure to follow the mandate of law by the Magistrate renders the order taking cognizance and the issue of process unwarranted and illegal. Reference in this regard may be made to a decision of the Coordinate Bench of this Court in K.L. Dhbar & ors v. Muzaffar Ahmad, 2006(2) JKJ 393 , wherein, in similar circumstances, the Court has held as under: "Section 200 of the Code of Criminal Procedure mandates the Magistrate to record the statements of complainant and his witnesses upon oath and not otherwise. This mandate having not been followed by the Magistrate renders his order dated 20th of May, 2004 unwarranted and illegal." The aforesaid judgment is squarely applicable in the present case. 5. There are other grounds as well manifest in the present case which render the cognizance by the Magistrate unwarranted. This mandate having not been followed by the Magistrate renders his order dated 20th of May, 2004 unwarranted and illegal." The aforesaid judgment is squarely applicable in the present case. 5. There are other grounds as well manifest in the present case which render the cognizance by the Magistrate unwarranted. However, I deem it unnecessary to refer to those grounds, since this petition otherwise succeeds. 6. The result is that this petition is allowed. The complaint in question and the order dated 26.4.2007 passed by the learned Magistrate and the issuance of process, being unwarranted and illegal, are quashed.