M KUNHAYISU Vs. P KALLYANI

JUDGEMENT

(1.) Petitioners 3 in number are the accused in C.C. No. 162/1985 on the file of the Judicial First Class Magistrate's Court, Badagara. They seek to quash all proceedings in the said case. The grounds alleged by the petitioners for quashing the proceedings before the court below are:-

(2.) The ground on which the petitioners contend that there is violation of the provisions contained in S.200 of the Code of Criminal Procedure is that the learned Magistrate while taking cognizance of the complaint has not stated whether any witness was present or not. According to counsel, if any witness was present in court the Magistrate should have examined him and the substance of such examination should have been reduced to writing. The learned Magistrate thereupon ought to have considered the said evidence of the witness and then only ordered issue of process. In case no witness was present the learned magistrate ought to have noted that fact in the order sheet. If the absence of the witness is not so noted in the order sheet, according to counsel it will vitiate the entire proceeding and this court should quash the proceeding on that sole ground. In support of this argument the learned counsel relies on the decisions reported in Ramaswami Nadar v. Viswanathan ( 1957 CriLJ 673 ) - (1957 I. MLJ 157), Mac Culloch v. State ( 1974 CriLJ 182 ) & Brahmanand Goyal v. N. C. Chakraborty ( 1974 CriLJ 1079 ).

(3.) In the first decision above cited, a complainant whose complaint was dismissed by the Magistrate without examining the witnesses present in court along with the complainant approached the High Court in revision. It was contended by the complainant before the High Court that the provisions of S.200 and 203 have not been complied with, that is that he was present with the witnesses at the time when he presented the complaint, that the witnessess were not examined on oath and that the substance of their examination has not been reduced to writing by the Magistrate. On the basis of the representation made by counsel the learned Judge took it that there ware two witnesses present along with the complainant and under S.200 of the Code, the Magistrate should have examined the complainant and the witnessess present on oath. Since this procedure had not been followed it was found that the complainant has got a grievance. While dealing with this aspect it was observed: