In CRR 2997 of 2019-CAL HC- Purpose of recording substance of sworn statement by Magistrate is to enable him to satisfy himself of allegation in complaint to proceed further; Sec.200 of CrPC does not contemplate acceptance of affidavit as alternative of sworn statement: Calcutta HC
Justice Ajoy Kumar Mukherjee [10-01-2023]

Read Order: RUPAYAN BHATTACHARYA V. THE STATE OF WEST BENGAL & ANR

Mansimran Kaur

Kolkata, January 11, 2023: The Calcutta High Court has observed that examination under Section 200 of the CrPC does not prescribe for any cross-examination nor it requires recording of the statement at the instance of an advocate but it is a statement made only before the Magistrate for his satisfaction and as such, filing of affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200.

Justice Ajoy Kumar Mukherjee  allowed the present application by observing that the Magistrate is duty bound to examine on oath the complainant and his witnesses before proceeding further except where there are certain express provisions, deviating from general rule for such examination.

 Being aggrieved and dissatisfied with the order passed by the Judicial Magistrate, the present application under Section 482 of the Code of Criminal Procedure was  preferred.

The petitioner contended that the opposite party herein filed a complaint before the Magistrate concerned alleging the commission of offence punishable under Section 499/500/501/502/120B of the Indian Penal Code against the accused persons including the petitioners of the respective cases, inter alia on the allegations to the effect that accused persons with malicious dubious malevolent and spiteful determination, bearing clear mens rea, published libellous news attacking opposite party  in their newspaper.

It was alleged that on August 19, 2019, the Trial Magistrate purportedly examined the witnesses of the opposite second party  and  under Section 200 of the Code of Criminal Procedure without following its mandate properly and issued process against the petitioners of the respective cases along with other accused persons mechanically without having application of mind.

The petitioners further contended that the petitioners are innocent and were no way connected with any offence far less the offence alleged in the complaint. 

After considering the contentions, the Court first dealt with the preliminary question, as to whether filing of an affidavit supporting substance of complaint by the complainant in the place of sworn statement, in support of his complaint would be treated as contrary to the procedure laid down under Section 200 of the Code and whether such defect, if any, is curable being irregular proceeding under Chapter XXXV of the Code.

In view of the same, the Court took into consideration Section 4 and 5 of the Code and noted that a conjoint reading of those provisions makes it clear that the Magistrate who takes cognizance of an offence is required to examine the complainant and the witnesses on oath and thereafter he has to reduce the substance of the examination in writing and is to be signed by the complainant and the witnesses before the Magistrate and the substance of examination in writing is to be signed by the Magistrate also. 

It was further noted by the Court that a conjoint reading of Section 200 and 204 makes it clear that in order to form an opinion by the Magistrate after taking cognizance that there is sufficient ground for proceeding under Section 204 of the Code, the examination of complainant as laid down under Section 200 of the Code, played a very crucial role. This is also because the term used in Section 200 of the Code is “shall” and as such the question of taking leniency or what would be convenient for the Magistrate, is not to be looked into, while such examination would be made.

Reference was placed on the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate & others .

Accordingly, the Court was of the view that “Section 200 of the Code does not contemplate acceptance of affidavit as an alternative of sworn statement nor can affidavit take the place of sworn statement as required under Section 200 of the Code. In fact, such examination under Section 200 does not prescribe for any cross-examination nor it requires recording of the statement at the instance of an advocate but it is a statement made only before the Magistrate for his satisfaction and as such, filing of affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of the Code”. 

The Court thus observed that it had no option but to conclude that the Magistrate is duty bound to examine on oath the complainant and his witnesses before proceeding further except where there are certain express provisions, deviating from general rule for such examination.

 Accordingly, the Court quashed the aforesaid proceeding from the stage of examination of complainant under section 200 and issuance of process against accused persons under section 204 of the code  and all subsequent orders.