IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.906 OF 2008 Hukumichand Jain & Anr. .. Petitioners Vs. Gangadhar P. Rohera & Anr. .. Respondents Shri E.A.Sasi for the Petitioners. Mr.V.P.Patil for the Respondent No.1. Mr.Y.M.Nakhawa, A.P.P for the Respondent No.2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 29th August 2008. : 29th August 2008. : 29th August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the last date. The petitioners have invoked jurisdiction of this Court under Article 227 of the Constitution of India as well as under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code). A private complaint was filed by the 1st respondent alleging commission of offences under section 406, 409, 420 read with section 34 of the Indian Penal Code against the petitioners. On the said complaint, the learned Magistrate passed an order in exercise of powers under section 202 of the said Code directing investigation by the concerned police station. 2. The contention raised by the petitioner in this petition is that there was no verification recorded by : 2 : 2 : 2 : the learned Magistrate of the 1st respondent complainant as required by section 200 of the said Code. It is submitted that the learned Judge has completely overlooked section 200 of the said Code. It is submitted that only on this ground, the order impugned will have to be quashed and set aside. On 10th July 2008, time was granted to the learned counsel appearing for the 1st respondent to take instructions as to whether verification of the 1st respondent was recorded under section 200 of the said Code. On instructions, the learned counsel appearing for the 1st respondent fairly stated that verification has not been recorded. 3. I have considered the submissions of the learned counsel appearing for the parties. Chapter XV of the said Code deals with private complaints made to the Magistrates. Section 200 of Chapter XV read thus: "200. 200. 200. Examination Examination Examination of of of complainant.- complainant.- 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. : 3 : 3 : 3 : . 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 complainant and the witnesses, the latter Magistrate need not re-examine them." Section 200 mandates that 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, if any and also by the learned Magistrate. There are two exceptions recognised by the said section. : 4 : 4 : 4 : The first proviso of section 200 lays down that when a complaint is made by a public servant acting in discharge of his official capacity or by a Court, the Magistrate need not examine the complainant and witnesses. It further provides that if the Magistrate makes over the case for enquiry or trial to another Magistrate under section 192 of the said Code, he need not examine the complainant or his witness. 4. Section 202 0f the said Code reads thus: "202. 202. 202. Postponement Postponement Postponement of issue of process.- of issue of process.- of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction,] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: . Provided that no such direction for : 5 : 5 : 5 : investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath; . Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the : 6 : 6 : 6 : power to arrest without warrant." 5. Sub section 1 of the aforesaid section 202 provides that the learned Magistrate in his discretion can postpone the issue of process against the accused. He may either enquire into the case himself or direct an investigation to be made by a police officer. The proviso (b) of sub section 1 clearly lays down that no such direction for investigation shall be made unless the complainant and his witnesses present, if any have been examined on oath under section 200. In this case it is an admitted position that the 1st respondent complainant and/or his witnesses, if any, have not been examined on oath under section 200. In view of proviso (b) to sub section (1) of section 202, examination of the complainant and his witnesses present, if any, is a condition precedent for passing an order directing investigation under sub-section (1) of section 202 of the said Code in case of a complaint which is not made by a Court. 6. It is surprising that the learned Magistrate has completely overlooked the basic provisions of law and has proceeded to pass an order under section 202(1). The learned Judge has committed a gross error by passing an order under section 202 of the said Code without : 7 : 7 : 7 : complying with requirement of section 200 of the said Code. The said order will have to be set aside. 7. Though impugned order will have to be set aside, the complaint cannot be dismissed in as much as the learned Judge has not performed his duty under section 200 of the said Code and the complaint will have to be relegated to the stage of section 200 of the said Code. 8. In the circumstances, I pass the following order: (i) The impugned order dated 15th February 2008 passed by the learned Magistrate in Criminal Case No.1010 of 2007 is quashed and set aside. (ii) The learned Magistrate will deal with the said complaint filed by the 1st respondent in accordance with law. (iii) All contentions of the parties in the complaint are expressly kept open. (A.S. Oka, J)