Andhra HC (Pre-Telangana)
Dr. M.S.N.Reddy vs State Of A.P., Rep. By Public ... on 16 June, 2014
Author: K.G.Shankar
Bench: K.G.Shankar
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.2903 of 2014
16-6-2014
Dr. M.S.N.Reddy Petitioner/Accused
State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad; and
another Respondents
Counsel for the Petitioner: Sri T.Niranjan Reddy,
Senior Counsel
Counsel for Respondent No.1: Public Prosecutor,
High Court of A.P.,
Hyderabad.
Counsel for Respondent No.2: None
<Gist:
>Head Note:
? Cases referred:
1. (2013) 5 SCC 615
2. (2001) 2 SCC 633
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.2903 of 2014
Date: 16-6-2014
Order:
The sole petitioner seeks for quashment of
C.C.No.254 of 2014 on the file of the II Additional Junior
Civil Judge cum XIX Metropolitan Magistrate, Cyberabad,
Kukatpally. The petitioner alleged that the
2nd respondent, who is the de facto complainant, laid the
complaint, which was taken on file as C.C.No.254 of
2014 without recording the sworn statement of the
2nd respondent. Sri T.Niranjan Reddy, learned Senior
Counsel for the petitioner, submitted that the learned
Magistrate took the sworn affidavit of the 2nd respondent,
treated the same as sworn statement of the
2nd respondent and took the case on file. He submitted
that non-recording the sworn statement of the
2nd respondent vitiates the trial.
2. The learned Senior Counsel for the petitioner
referred to Section 200 Cr.P.C and the proviso thereto.
The same is quoted for convenience.
200. Examination of complainant:-- 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 complaint; 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
and examining the complainant and the witnesses, the
later Magistrate need not reexamine them.
3. Under Section 200 Cr.P.C., the Magistrate shall
have to examine the complainant on oath before taking
cognizance of the case. Proviso however creates
exceptions in the case the complainant is a public
servant or the court or in the event the case was made
over to the Magistrate under Section 192 Cr.P.C by
another Magistrate. The learned Senior Counsel for the
petitioner submitted that recording of the sworn
statement by the learned Magistrate is imperative and
accepting the sworn affidavit of the de facto complainant
instead of the sworn statement vitiates further
proceedings.
4. The learned Senior Counsel for the petitioner also
invited my attention to Section 190(1)(a) Cr.P.C., which
contemplates that a Judicial Magistrate of the first class
or a Judicial Magistrate of the second class may take
cognizance of an offence upon receiving a complaint
of facts which constitutes such an offence.
Section 156(3) Cr.P.C empowers a Magistrate to order
investigation of a cognizable case when he is otherwise
empowered under Section 190 Cr.P.C to take cognizance
of an offence. A conjoint reading of Section 2(d) Cr.P.C
dealing with the definition of complaint together with
Sections 190(1)(a), 156(3) and 200 Cr.P.C leads to an
inescapable conclusion that a Magistrate shall record the
statement of a complainant on oath before taking
cognizance of the same.
5. The learned Senior Counsel for the petitioner also
placed reliance upon MADHAO v. STATE OF
MAHARASHTRA . In that case, it was observed that
when a Magistrate was referring the case under Section
156(3) Cr.P.C for investigation, Court need not
examine the complainant on oath as required under
Section 200 Cr.P.C and that in other circumstances,
recording of the statement of the complainant on oath is
mandatory. In DELHI GOLF CLUB LTD. v. NDMC
relied upon by the learned Senior Counsel for the
petitioner, the Supreme Court observed that the
examination of the complainant on oath is mandatory
under Section 200 Cr.P.C.
6. In the present case, admittedly the learned Trial
Magistrate did not record the sworn statement of the
2nd respondent and other witnesses but has accepted the
sworn affidavit of the 2nd respondent instead of the
statement on oath. I wholly agree with the contention of
the learned Senior Counsel for the petitioner that the
sworn affidavit cannot be substitute of sworn statement
on oath recorded by the Magistrate.
7. Order XVIII, Rule 4 CPC contemplates that
recording of the chief-examination of a witness shall be
on an affidavit. A similar provision is not provided by the
Code of Criminal Procedure. Order XVIII, Rule 4 CPC
cannot be read into Section 200 Cr.P.C. For various
reasons already set out, recording of the sworn
statement of the complainant and his witnesses before
taking cognizance of the case as envisaged by
Section 200 Cr.P.C is mandatory.
8. I therefore consider that taking cognizance of the
case by the learned Magistrate is not in accordance with
law. However, it is not a ground to quash C.C.No.254 of
2014 at this stage. It would be appropriate to set aside
the proceedings from the stage of Section 200 Cr.P.C and
direct the Magistrate to follow the procedure
contemplated by Section 200 Cr.P.C and proceed with
the case in accordance with law.
9. Accordingly, this criminal petition is disposed of
setting aside the order of the learned XIX Metropolitan
Magistrate, Cyberabad, Kukatpally in taking cognizance
of the case against the petitioner. The learned Magistrate
shall record the sworn statements of the 2nd respondent
and other witnesses as contemplated under
Section 200 Cr.P.C and shall proceed with the case in
accordance with law. The miscellaneous petitions, if any,
pending in this petition shall stand closed.
_____________________
Dr. K.G.SHANKAR, J.
16th June, 2014.