1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No. 1669 of 2009 Veena Thadani ....Petitioner v/s. 1. The State of Maharashtra through the Senior Inspector, Chembur Police Station, Chembur, Mumbai & anr. 2. Sevaram Ratiram Agarwal ....Respondents Shri A.P. Mundargi, Sr. Counsel i/b. Mr. Ayaz Khan, Advocate for the petitioner. Shri Charanjeet Chandrapal for respondent no.2. Ms. A.T. Javeri-APP for the State. CORAM:- A.M.KHANWILKAR, J DATED:- November 10, 2009. P.C. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Shri Charanjeet 2 Chandrapal waives notice for respondent no.2 and Ms. A.T. Javeri waives notice for the State. 3. As short question is involved, Petition is taken up for final disposal, by consent. 4. This Petition essentially takes exception to the order dated 27th November, 2007 issuing process against the Petitioner by the trial Court in C.C. No. 36/SW/2007 (196/Misc./2007). 5. The Principal ground pressed before this Court is that the procedure adopted by the Trial Court Judge is unknown to the requirements of law. In as much as, the order of issuance of process has been issued by the Magistrate, relying on a prepared statement presented by the Complainant which was read as Verification Statement taken on record. The copy of the said statement which is presented before this Court alongwith affidavit of the Petitioner sworn on 10/11/2009, indicates that it is obviously a prepared document. It is almost verbatim reproduction of the contents of the complaint. The same was presumably drafted by the Advocate under the instructions of the Complainant sometime in September 2007. Indeed, Counsel for the Complainant submits that the said date September 3 2007, which appears at the end of the document is because the contents of the complaint which was available in the computer was used to copy it for preparing the Verification Statement of the Complainant. According to him, the actual date of preparation of Verification Statement was on 1/10/2007 and was presented before the trial Court on 23/11/2007. 6. Be that as it may, the question is whether such prepared Verification Statement by the Advocate can be said to be sufficient much less substantial compliance of requirement of Section 200 of the Criminal Procedure Code? Section 200 of the Criminal Procedure Code mandates that the 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 has to be reduced in writing to be signed by the Complainant and the witnesses and also by the Magistrate. The proviso to Section 200 postulates that when the complaint is made in writing in specified cases, the Magistrate need not examine the Complainant and the witness. We are not concerned with the said proviso in the case on hand. In the present case, admittedly, the Magistrate proceeded to take the prepared Verification Statement on record and proceeded to issue process against the Petitioner for the alleged offences on the prima-facie opinion that the Verification Statement gives all necessary ingredients of said offences. As 4 aforesaid, the law mandates that the Magistrate shall himself examine upon oath the Complainant and the witnesses present before him. In the present case, that requirement has not been fulfilled at all. The Verification Statement was a prepared document by the Advocate and cannot, therefore, be said to be version of the Complainant or he having deposed before the Magistrate at pre-cognizance stage. If any authority is required, we can usefully refer to the exposition of this Court in the case of Amarnath Baijnath Gupta & anr. V/s. M/s. Mohini Organics Pvt. Ltd. & anr. Reported in 2009 ALL MR (Cri) 184 which takes the view that recording of statement by the Magistrate cannot be done mechanically as an empty formality. The order to be passed by the Magistrate for issuing process is the outcome of satisfaction of the Magistrate about the prima-facie case made out by the Complainant regarding the alleged offence. That being the position in law, the Magistrate is obliged to administer oath himself to the Complainant and the witness present who intend to depose at pre-cognizance stage. The prepared statement cannot be taken on record mechanically unless the Magistrate was to be satisfied about the correctness of the said version and was to record that fact in the judicial proceedings. It is noticed in the present case that the Roznama makes no mention of the fact that such statement was produced and that the contents thereof were restated by the witness before the Magistrate so that the same could be taken on record. Significantly, in the present case it is common ground that the 5 Complainant is not familiar with English language. That makes the prepared statement all the more vulnerable because neither the statement nor the Roznama records the fact that the statement was read out and explained to the witness which the Magistrate has taken on record. In any case, the prepared statement cannot be taken on record without compliance of the formality of administering oath to the witness who would in turn restate the contents of such statement to be made part of the record. Non compliance of this requirement is fatal. It is a manifest jurisdictional error committed by the Magistrate. Resultantly, the order on the basis of which process has been issued to the Petitioner cannot be sustained in law. The same is, therefore, set aside and Verification statement which has been taken on record by the Magistrate will have to be discarded from consideration. Instead, the Magistrate will have to now himself examine the Complainant and his witness, if any, on oath and upon recording their statement as required by Section 200 may proceed with the matter from that stage. 7. Counsel for the Complainant submits that this approach may result in dispensing with the service of Advocate at the stage of recording of statement under Section 200. The apprehension is totally misplaced. The requirement to be observed by the trial Court in terms of Section 200 does not rule out the legal assistance of Advocate to be taken by the party at the time of recording of this 6 statement. Suffice it to observe that all questions are left open. 8. The Petition is allowed on the above terms with no order as to costs. (A.M.KHANWILKAR, J)