MOHAMMAED KUTTY Vs. MOHAMMED

JUDGEMENT

(1.) How is a Magistrate under Section 200 Cr.P.C. "to examine upon oath the complainant and the witnesses present" What is the role of the learned Magistrate at that stage of the proceedings' Is the Magistrate to function in an activist and dynamic manner to elicit the relevant information from the complainant and his witnesses Is the Magistrate only to record what the complainant and his witnesses state on oath These are the interesting questions that arise for consideration in this case.

(2.) The petitioner went before the learned Magistrate with a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The crime relates to a cheque for Rs. 10,000/-. The complainant was put in the witness stand and his statement was recorded. Paragraphs 2 and 3 of the impugned order reveal what precisely had happened. I extract the same below:

(3.) The learned Counsel for the petitioner submits that there is total lack of appreciation of the jurisdiction of the learned Magistrate. The learned Magistrate reduced himself to the position of a recording machine little realising the dynamic role which the Magistrate has to play at the stage of Section 200 Cr.P.C. In doing so, the learned Magistrate abdicated the real function of the Magistrate at that stage and acted only as a person testing the memory of the complainant. In these circumstances, the impugned order may be set aside and the learned Magistrate may be directed to consider the matter afresh. This is the short prayer.