Criminal Misc. No.M-10223 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Misc. No.M-10223 of 2010 (O&M) Date of decision: 22.7.2011 Sukhwinder Singh and another ......Petitioners Versus State of Punjab and others. .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.H.S.Dhindsa, Advocate, for the petitioners. Mr.G.S.Brar, A.A.G.Punjab. Mr.Vaibhav Narang, Advocate, for respondent No.4. **** SABINA, J. This petition has been filed under Section 482 of the Code of Criminal Procedure for dismissal of the protest petition (Annexure P-4) along with the summoning order dated 7.8.2009 (Annexure P-5). Narinder Singh-complainant had lodged FIR No.123 dated 5.9.2006 against the petitioners under Section 326/ 323/ 34 of the Indian Penal Code (for short IPC) at Police Station Sultanwind. The investigating agency, after investigation of the case, submitted the cancellation report. Notice of the same was issued to the complainant-respondent No.4 and he preferred a protest petition. Criminal Misc. No.M-10223 of 2010 (O&M) 2 The trial Court, after going through the statements recorded during investigation, rejected the cancellation report and ordered that the petitioners be summoned to face the trial under Sections, 326/ 323/ 34 IPC. Hence, the present petition. Learned counsel for the petitioners has submitted that the Magistrate could not have summoned the petitioners without recording the statements of the complainant and other victims. Hence, the impugned order was liable to be set aside. After hearing learned counsel for the parties, I am of the opinion that the present petition deserves to be allowed. Section 200 Cr.P.C. reads as under:- “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 complainant; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Criminal Misc. No.M-10223 of 2010 (O&M) 3 section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.” Thus, as per the above provision, the Magistrate can take cognizance of an offence after examining upon the complainant and the witnesses present and thereafter, can proceed further and summon the accused, if prima facie case is made out against them. However, in the present case, the trial Court has proceeded to summon the petitioners without recording the statements of the complainant and other witnesses, if any. There is no dispute regarding the fact that the Magistrate can take cognizance of the offence even if police has moved a cancellation report but the Magistrate was required to at least examine the complainant and other witnesses, if any, before summoning the accused. Accordingly, this petition is allowed. The impugned order dated 7.8.2009 is set aside. The trial Court is directed to pass a fresh order in accordance with law. (SABINA) JUDGE July 22, 2011 anita