NEELAM AGGARWAL AND ANOTHER Vs. GULSHAN RAI

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure (for short 'Code') takes exception to the order passed by the learned Judicial Magistrate Ist Class, Nahan, District Sirmaur, on 4 th October, 2016, whereby it has taken cognizance against the petitioners under Sections 451 and 506(1) read with Section 34 IPC.

(2.) It is not in dispute that the statement of the complainant through his power of attorney Arvind Sardana had initially been recorded on 26.07.2016 and on the same date statements of certain other witnesses were also recorded. However, it appears that thereafter the statement of Arvind Sardana was again recorded on 26.08.2016 wherein he tendered supplementary agreement dated 27.09.2008.

(3.) The learned counsel for the respondent was not in a position to explain or even justify as to how the statement of the complainant through his power of attorney once recorded could have been recorded for the second time. Obviously, there is no procedure in the Code for recording the statement of the complainant in preliminary evidence more than once. Therefore, the statement recorded on 26th August, 2016 has to be discarded and resultantly the order dated 04.10.2016 wherein the supplementary agreement has also been taken into consideration while taking cognizance against the petitioners cannot withstand judicial scrutiny and, therefore, deserves to be set aside.