RAKESH SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal miscellaneous petition involves following important questions of law:

(2.) What is the effect of Sections 4 & 5 of the Code of Criminal Procedure (for short 'the Cr.P.C.') on Section 145 of the N.I. Act. Whether the provision of Section 145 has overriding effect over the provisions of the Cr.P.C.?

(3.) It is urged by learned Counsel for petitioner that the Court below committed an error in issuing process as per Section 204 of the Cr.P.C. without examining complainant and his witnesses as per the procedure provided under cof the Cr.P.C. Section 145 of the N.I. Act does not override Sections 200 and 202 of Cr.P.C. For issuance of process on a complaint, it is mandatory for the Magistrate to examine the complainant and his witness(s) on oath. In the present matter, aforesaid procedure has not been complied as at pre-summoning stage, complainant was examined on affidavit. The issue aforesaid is covered by a judgment of this Court in case of Prakash Chand v. State of Rajasthan and Anr.,2009 3 WLC(Raj) 766. Therein it was held that in view of provisions of Sections 4 & 5 of the Cr.P.C., Section 145 of the N.I. Act does not have override Section 200 of the Cr.P.C. The prayer of learned Counsel for petitioner is, accordingly, to set aside the two orders under challenge.