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Showing contexts for: sworn statement section in Vasudevan vs State Of Kerala on 24 June, 2004Matching Fragments
1. Is the proceedings Under Section 200 Cr.P.C. "inquiry" as defined Under Section 2(g) Cr.P.C? Is the sworn statement recorded before the Magistrate Under Section 200 Cr.P.C. 'evidence'? Can the affidavit filed Under Section 145 of the N.I. Act be received by a Court to proceed further without insisting on the personal appearance of the complainant? These questions of contextual relevance are thrown up for consideration in this Revision Petition.
2. The complainant, in a complaint Under Section 138 of the N.I.Act, has preferred this revision petition against the order passed by the learned Magistrate "closing" the complaint. I extract below the impugned order:
4. The learned counsel for the petitioner has taken me through the facts of the case. The complainant had filed the complaint Under Section 138 of the N.I. Act. He had also filed an affidavit Under Section 145 of the N.I.Act. The counsel contends that though the affidavit Under Section 145 of the N.I. Act was filed, the learned Addl. Chief Judicial Magistrate was not prepared to accept and act on the said affidavit. The learned Magistrate unnecessarily insisted on the personal appearance of the petitioner/ complainant before the learned Magistrate to record his sworn statement Under Section 200 Cr.P.C. That is the real reason that prompted the learned Magistrate to pass the impugned order, it is submitted.
10. The learned counsel for the petitioner submits that the learned Magistrate has chosen not to accept the affidavit Under Section 145 Cr.P.C. of the Act as the learned Magistrate entertained the impression that sworn statement of the complainant and witnesses recorded Under Section 200 Cr.P.C. cannot be reckoned as "evidence" and the proceedings Under Section 200 Cr.P.C. cannot be reckoned as "enquiry, trial or other proceedings" under the Code of Criminal Procedure.
11. I find no merit in this assumption also. As early as in Vadilal Panchal v. Dattatraya, (AIR 1960 SC 1113), it is indicated that procedure prior to an order of dismissal Under Section 203 (or cognizance Under Section 204) is enquiry. Going by the first principles also, at the stage of Section 200 Cr.P.C, the Court is only considering on the basis of the materials available before it, whether there are sufficient grounds to proceed against the accused. Materials are available before the Court. The complaint is available. Sworn statement of the complainant and witnesses are available. Mind of the Court is applied to these materials judicially to decide whether the matter deserves to be proceeded with further by issue of process Under Section 204 Cr.P.C. or whether proceedings deserve to be terminated by dismissal of the complaint Under Section 203 Cr.P.C. In any view of the matter, the proceedings before the Criminal Court at that stage would certainly qualify to be "inquiry" as defined Under Section 2(g). Under Section 2(g), inquiry means every inquiry, other than trial, conducted under this Code by a Magistrate or Court. In this view of the matter, the proceedings before the Magistrate Under Section 200 Cr.P.C. whereunder the Magistrate considers the materials available before him to decide whether a judicial order of dismissal Under Section 203 Cr.P.C. or a judicial order of issue of process Under Section 204 Cr.P.C. should be passed, would certainly be inquiry Under Section 2(g). The objection raised that Section 145 of the N.I.Act cannot apply for the reason that the proceedings is not inquiry, cannot hence be accepted.
"Evidence"- Evidence means and includes (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry' such statements are called oral evidence;
15. All statements which the Court permits or requires to be made before it by witnesses in relation to facts under inquiry would be evidence. The provisions regarding the manner in which examination of witnesses is to take place and the order of examination in Chapter X of the Evidence Act cannot be pressed into service to decide whether the sworn statement recorded Under Section 200 Cr.P.C. will be evidence or not. Any statement which the Court permits or requires to be made before it by witnesses, whether such statement be tested by a cross examination or not, will certainly be evidence for the purpose of Section 3. In these circumstances, the contention that sworn statement would become evidence, only if and after opportunity for cross examination is granted, cannot also be accepted. On this aspect also, there can be no dispute and the question is clearly covered in Rakesh v. State of Haryana, AIR 2001 SC 2521. Considering the ambit of the expression, "evidence" appearing in Section 319(1) Cr.P.C. the Supreme Court had held that the sworn statement in chief examination, even when not tested by a cross-examination, would continue to be evidence for the purpose of Section 319. In a still earlier decision in Santhosh De & Anr.v. Archna Guha & Ors. 1995 AIR SCW1725, the Supreme Court, while considering Section 245(3) of the Code of Criminal Procedure, which was in force in West Bengal, had held that the expression "evidence" therein need not be restricted only to statements made on oath before Court which are tested by a cross examination. Still later, in Gopalakrishnan v. State of Kerala, 2001 (2) KLT 767, a learned Judge of this Court has held that Under Section 244 Cr.P.C, the accused has no absolute right for cross examination of a witness, notwithstanding the fact that the statutory provision in $.244(1) employs the expression "evidence".