Karnataka High Court
Sri K. Venkataramaiah And Ors. vs Sri Katterao on 17 December, 2007
Equivalent citations: ILR2008KAR474
Author: Subhash B. Adi
Bench: Subhash B. Adi
JUDGMENT Subhash B. Adi, J.
1. A private complaint No. 21/2005 under Section 200 of Criminal Procedure Code was filed for the offence punishable under Sections 500 and 420 read with Section 34 of IPC.
2. Complaint alleges that, he received a letter dated 20-10-2003 duly signed by the accused making derogatory and defamatory statement against him. The complainant alleges that he is not well-versed with the English language and the said letter was given to one Mallikarjuna Hanumanthappa to read the same, who read the letter and alleged that the defamatory statement are made against him and alleges that, despite of issuing a legal notice, the accused did not respond. Complainant also alleges that the allegations are defamatory in nature. Based on the said complaint and affidavit filed in support of it, along with other materials, the learned Magistrate directed registration of the complaint and further ordered for issue of summons.
3. The proceedings on the file of the learned Magistrate are called in question by the accused on the ground that, the allegations in the complaint do not make out any offence and also the affidavit produced in support of the complaint by way of sworn statement is inadmissible in law.
4. In this regard he submitted that, Section 200 of Criminal Procedure Code does not contemplate for filing of an affidavit in the place of sworn statement and the same is contrary to Section 200 of Criminal Procedure Code. He further submitted that, the Magistrate is required to record the substance of the sworn statement. Section 200 of Criminal Procedure Code does not provide for taking the affidavit in the place of sworn statement, nor the affidavit could be treated as sworn statement. He also submitted that accepting the affidavit in the place of sworn statement would negate the scope of the provisions of Section 200 of Criminal Procedure Code. He further submitted that, the provisions of Section 296 are not applicable. Under the said provision, affidavit can be filed by way of evidence and there will be opportunity to the accused to cross-examine the said witness and the said provision cannot be invoked under the provisions of Section 200 of Criminal Procedure Code to consider the sworn statement on par with the evidence as stated in Section 296 Criminal Procedure Code. He also submitted that the scope and purpose of Section 296 of Criminal Procedure Code is entirely different from the provisions of Section 200 of Criminal Procedure Code.
5. Learned Counsel appearing for respondent submitted that, affidavit can be used in the place of sworn statement and in this regard, he relied on a judgment reported in the matter of K. Srinivasa v. Kashinath and submitted that the affidavit is commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before the authorised Magistrate or officer. The affidavit has been defined in Sub-section 3(iii) of General Clauses Act, 1897 to include "affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing". He relied at paragraph 10 of the said judgment and submitted that there is no distinction between the affidavit and the sworn statement and submitted that in the place of sworn statement, the complainant can file affidavit.
6. Learned Counsel appearing for the petitioner relied on Section 200 of Criminal Procedure Code and submitted that, Section 200 in Chapter XV of Criminal Procedure Code relates to complaint to the Magistrate. He emphasized from the provisions of Section 200 and submitted that a Magistrate who takes cognizance of any offence on the complaint, shall examine upon both the complainant and the witnesses present if any and further he is required to record the substance of the examination in writing and same has to be signed by the complainant and the witnesses. This is a specific procedure contemplated in the matter of filing of complaint under Section 200 of Criminal Procedure Code. He further submitted that filing of an affidavit cannot partake the character of the sworn statement as contemplated under Section 200 of Criminal Procedure Code. Section 200 of Criminal Procedure Code specifically requires the Magistrate to reduce into writing the substance of the sworn statement of the complainant and the witnesses, and same cannot be done in the case of affidavit as Magistrate will not have any chance to record the substance of the sworn statement. He also submitted that the evidence under Section 296 of Criminal Procedure Code cannot be used as sworn statement before Magistrate. The sworn statement does not call for the cross-examination of the complainant and the witnesses. It is only the Magistrate who is required to satisfy himself about the statement of the complainant and the witnesses. He further submitted that the judgment relied on by the learned Counsel for the petitioner, is in the matter of Section 145 of N.I. Act wherein there is a specific provision in Sub-section (2) which provides for filing of affidavit and it is in this regard, this Court in the reported judgment has accepted the affidavit. He also submitted that the said case was under the provisions of Section 145 of the Negotiable Instruments Act and not a complaint for offence under I.P.C.
7. The only question that arises for consideration in this petition is as to:
Whether the complainant in support of his complaint under Section 200 of Criminal Procedure Code can file affidavit in the place of sworn statement?
8. It is useful to extract the provisions of Section 200 of Criminal Procedure Code which reads thus:
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.
9. By reading of Section 200 of Cr.P.C. it is clear that, the Magistrate who takes cognizance of an offence is required to examine the complainant and the witnesses on oath and thereafter he has to reduce the substance of the same in writing and is to be signed by the complainant and the witnesses before the Magistrate, whereas, the affidavit is a oath taken before the officer of the Court or before the Magistrate or the officer, affidavit does not require the recording of sworn statement by the Magistrate. The affidavit by itself is a declaration on oath by the complainant.
10. When a specific procedure is contemplated under Section 200 of Cr.P.C, it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegation in the complaint to proceed further in the matter. Under Section 200 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 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. 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. and it is inadmissible.
11. The Judgment relied on by the learned Counsel for the respondent is arising out of the provisions of Section 145 of the Negotiable Instruments Act. Section 145 of the Negotiable Instruments Act provides for giving evidence of affidavit irrespective of the provisions of the Cr.P.C. Negotiable Instruments Act being a special statute and Section 145 of the said Act has a over-riding effect of the provisions of Cr.P.C. it is only for the purpose of giving the evidence, the provision is made. In my opinion, the provision of Section 145 of N.I. Act cannot be applied in the matter of recording of the statement as required under Section 200 of Cr.P.C. in respect of other offences. The judgment relied on by the learned Counsel for the respondent is not applicable to the facts and circumstances of this case. In this case, proceedings are initiated based on the affidavit of the complainant and the witnesses.
12. The proceedings on the file of the Magistrate from the stage of registering the complaint and also issuing summons are vitiated, the same requires to be quashed.
In the light of the above observations, petition is allowed and the impugned proceedings in C.C. No. 251/2005 (PC No. 21/2005) on the file of the Civil Judge (Sr.Dn.) & JMFC, Gangavati, in so far as the petitioners are concerned, is hereby quashed. Matter is remitted to the learned Magistrate for recording the sworn statement of the complainant and the witnesses. Liberty is given to the complainant to appear before the Magistrate for sworn statement along with his witnesses if any. In such event, the Magistrate is directed to record the sworn statement of the complainant and the witnesses and if the learned Magistrate is satisfied with the materials, he may proceed in the matter.
13. All other contentions are kept open to the parties.