((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2264 OF 2008 Harish Khushalchand Chandak Petitioner versus The State of Maharashtra & anr. Respondents Pushpa H. Goswami for petitioner. Y.M.Nakhawa, APP for State. Amit Shetye for respondent no.2. CORAM : A.S.OKA, J. DATE : 28th April 2009 JUDGEMENT : 1. The petition was finally heard on 17th April 2009. The present petitioner has been arraigned as an accused in a private complaint filed by the second respondent. Process was issued on the said private complaint for the offences punishable under sections 384, 385, 386, 387, 388, 389 of the Indian Penal Code. A revision application was preferred for challenging the said order. By order dated 18th September 2008 the learned Additional Sessions Judge rejected the said revision application. 2. Apart from the submissions on merits the ((-2-)) learned counsel appearing for the petitioner has invited my attention to the verification statement of the second respondent which is in the form of an affidavit. A true xerox copy of the certified copy of the same has been annexed to this petition. The submission of the counsel for the petitioner is that the alleged verification statement of the complainant is in the form of an affidavit which is affirmed before the Assistant Superintendent of the concerned Court and thereafter there is merely an endorsement made below the affidavit "Before me" by the learned magistrate. Reliance is placed by the learned counsel for the petitioner on the decision of this Court in the case of Suresh Mohanlal Goradia vs. Hiralal G. Thakkar & others (1982[1]-Bom.C.R.-117). It was submitted that there is no examination of the complainant made on oath by the learned Magistrate as contemplated by Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). The learned counsel therefore submitted that the order of issue of process and all subsequent proceedings are illegal and deserve to be quashed. The submission of the counsel for the second respondent is that there is a ((-3-)) substantial compliance made with the requirement of section 200 of the said Code. He submitted that the verification statement bears an endorsement of the learned Judge that the said statement was made before him. Without prejudice to the aforesaid contentions, he submitted that if at all any error has been committed by the Trial Judge, first respondent-complainant should not suffer. 3. I have carefully considered the submissions. Section 200 of the said Code reads thus:- "S.200.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witness 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 after examining the ((-4-)) complainant and the witnesses, the latter Magistrate need not re-examine them." On plain reading of section 200, before taking cognizance of an offence on a private complaint, it is the duty of the learned Magistrate to examine the complainant upon oath and the witnesses present, if any. He is required to reduce the substance of such examination into writing which is required to be signed by the complainant and the witnesses as well as by the learned Magistrate. 4. The law does not require a private complaint to be affirmed on oath. It is repeatedly held by the Apex Court that issuing process on a private complaint is a very serious matter. Before drastic step of issuing process is taken, the law provides for a safeguard in the form of examination of the complainant on oath under section 200 of the said Code. The very object of examination of the complainant under section 200 is to ascertain the truth from the complainant by questioning him on oath. It is the requirement of section 200 that the Court must examine the complainant on oath and record substance of ((-5-)) such examination in writing. The object of section 200 is to ascertain whether the version of the complainant is truthful. In the present case, it appears that the first respondent- complainant himself drafted an affidavit which was affirmed before the Assistant Superintendent of the Trial Court. On such affidavit there is an endorsement made by the learned Magistrate "Before me". Section 200 of the said Code does not permit examination of the complainant by the learned Magistrate on affidavit. Therefore, by no stretch of imagination the alleged verification of the first respondent in the form of an affidavit can be treated as an examination of the complainant within the meaning of section 200 of the said Code. Unless an examination of the complainant is made under section 200 of the said Code, the learned Magistrate cannot proceed to exercise powers under sections 202 or 203 or 204 of the said Code. Hence, the order of process issued on the basis of such purported verification is illegal and is required to be set aside. 5. At the same time it will have to be borne in mind that if the learned Magistrate did not ((-6-)) perform his obligation under section 200 of the said Code, the second respondent- complainant cannot be blamed and he cannot be made to suffer on account of default on the part of learned Magistrate. Therefore, though a case is made out for setting aside the order of issue of process, a direction will have to be given to the learned Magistrate to proceed with the complaint from the stage of examination under section 200 of the said Code. 6. Hence, I pass following order : (a) The impugned order dated 16th April 2007 is quashed and set aside; (b) The learned Magistrate is directed to record examination of the complainant in terms of section 200 of the said Code; (c) After complying with the provisions of section 200 of the said Code, the learned Magistrate will proceed to pass appropriate orders on complaint in accordance with law; (d) All contentions of the parties on the merits of the complaint are expressly kept ((-7-)) open; (e) The writ petition is partly allowed in the above terms. (A.S.OKA, J.)