GHANASHYAM TRIPATHY Vs. SURYANARAYAN TRIPATHY AND ANR.

JUDGEMENT

(1.) PETITIONER has challenged the order of the Sub -Divisional Judicial Magistrate, Bhanjanagar taking cognisance against him in ICC Case No. 63 of 1981 and framing charge against him under Section 325 / 323, Indian Penal Code, after clubbing the complaint case with G.R. Case No. 39 of 1981.

(2.) THE brief facts of the case are that one Ashok Kumar Tripathy lodged a report at Bhanjanagar Police Station that Ghanashyam, the Petitioner, and his son Pradyumna Kumar assaulted one Suryanarayan Tripathy on 19 -1 -1951 at 5.15 p.m. by means of lathi causing severe injuries on his person and left hand. This was registered as Bhanjanagar P.S. Case No. 19 of 1981 and a G.R. Case was instituted in the Court of the Sub -Divisional Judicial Magistrate, Bhanjanagar, bearing G.R. Case No. 39 of 1981. After investigation, the police submitted charge sheet against accused Pradyumna Kumar and on the basis of the said charge sheet cognisance was taken against accused Pradyumna Kumar under Section 325/323, Indian Penal Code, by order dated 14 -4 -1981 in the G.R. case. Thereafter, the injured Suryanarayan Tripathy filed a complaint under Section 200 of the Code of Criminal Procedure (herein after called the "Code") against Ghanashyam alleging that Ghanashyam assaulted him by a lathi to the left elbow joint and the lower part of the left arm and also to lower part of his left forearm by the said lathi due to which the complainant fell down on the ground. It was Further alleged in the complaint petition that though Ghanashyam and his SOD Pradyumna committed the offence, the police shielded accused Ghanashyam since he was also an officer of the police department and ultimately no charge sheet was filed against him in the G.R. case. In view of the averments in the complaint petition, the learned Magistrate called for the records of the G.R. case and by his order dated 1 -10 -1981 after perusing the case diary of the G.R. case and hearing the counsel appearing for the complaint, took cognisance of the offence under Section 325, Indian Penal Code, against accused Ghanashyam summoning him to appear in Court on 12 -11 -1981 and also passed an order clubbing the complaint case with the G.R. case under Section 210(2) of the Code. The Petitioner -accused appeared before the learned Magistrate on 11 -12 -1981 and was released on bail. On 4 -6 -1982, the learned Magistrate framed charges against accused Ghanashyam under Section 325/323, Indian Penal Code. In this revision, the Petitioner challenges the legality of the order of the learned Magistrate in taking cognisance in the complaint case on 1 -10 -1981 as well as the order framing charges on 4 -6 -1982.

(3.) MR . Misra then contends that Section 200 of the Code requires the Magistrate to examine the complainant on oath and the witnesses present, if any, before taking cognisance of the offence on the basis of the complaint and the said procedure not having been followed, the order taking cognisance is bad in law. In this connection, he also submits that the learned Magistrate took cognisance in this case by referring to the police papers filed in the G.R. case and this procedure is not permissible in law. With regard to the question whether the Magistrate would be justified in referring to the records of the G.R. case, it appeal's that in the complaint petition itself, averments were made to the effect that police did not submit charge sheet against accused Ghanashyam in the G.R. case since the said Ghanashyam happened to be a co -police officer. In that view of the matter, it cannot be said that the learned Magistrate committed any illegality in referring to the records of the G.R. case. In fact, in an identical case, such a contention has been negatived by this Court. See Jatadhari Rana v. Udhab Khuntia and two Ors. Cr. Rev. No. 377 of 1984, disposed of on 26th. June, 1984. Coming to the other question, namely, whether the Magistrate can take cognisance on the basis of a complaint filed under Section 200 of the Code without examining the complainant, it depends upon an interpretation of Section 200 of the Code. Section 200 no doubt stipulates the normal procedure of examining the complainant on oath and the witnesses present, if any. But Section 190(1)(a) of the Code which authorises the Magistrate to take cognisance nowhere restricts his power of taking cognisance only after the complainant is examined. The provision for examining the complainant is for the benefit of the complainant and the accused is not prejudiced in any manner for non -examination of the complainant at that stage. An order taking cognisance without examination of the complainant cannot be said to be null and void, nor the proceedings can be said to be vitiated on that score. It has been held by different courts that an omission to examine the complainant as required in Section 200 of the Code is a serious irregularity, but this does not necessarily vitiate the proceedings. See Sheikh Meher Alli v. State of Bihar and Anr. : A.I.R. 1968 Pat. 88 and Bharat Kishore Lal Singh Deo v. Judhistir Modaks : A.I.R. 1929 Pat 473. In this view of the matter; this contention of the learned Counsel for the Petitioner also fails.