JUDGMENT Poonam Srivastava, J.
1. Heard learned counsel for the applicant and learned A.G.A.
2. The opposite party No. 2 has not put in appearance despite notices were issued and duly served to him. On 30.1.2004 an order was passed for listing the application for effecting service and notices were served on 6.1.2004. The report of police station Bidhuna District Oraiya is on record and also of the Chief Judicial Magistrate, Etawah dated 9.1.2004 regarding sufficient service on O.P. but no counter affidavit has been filed. The present application is being decided finally after hearing learned counsel for the applicant.
3. The present application was filed for quashing the entire proceedings initiated on the basis of a complaint under Section 395/397 I.P.C. Shiv Kumar v. Babu Singh and Ors. pending in the court of Special Judge, Anti- Dacoity, Etawah. The court had summoned the applicants vide order dated 29.5.1992 (Annexure- 6 to the affidavit) A perusal of the said order shows that the Special Judge had summoned the applicants after perusing the complaint and affidavits of the complainant and witnesses and a copy of the telegram allegedly given to the S.S.P.
4. The facts giving rise to the present dispute is that the applicants and complainant are cousins. There was a dispute in respect of a house constructed by Rakshpal Singh (father of the applicant no. 1 and 2) and Pratap Singh (father of the complainant). There was a mutual partition of the open plot between the two brothers Rakshpal Singh and Pratap Singh of the open plot which was originally owned by their father Ragghu Singh and both of them had . constructed separate residence on their respective portions. The constructed portion belonging to Pratap Singh had collapsed and thereafter Pratap Singh had left his house with his five sons who were residing in a separate house. After the death of Pratap Singh, there was a dispute for the property amongs his sons who started living separately. One of the constructed portion belonging to the applicants no. 1 and 2 and adjacent to the Kothari of Ambika Singh son of Pratap Singh was illegally encroached. This gave rise to bad blood between the applicants No. 1 and 2 on one hand and Ambika Singh and others on the other hand. However, on intervention of certain respectable persons a written compromise was entered into and they were put in possession of then respective portions in the terms of the compromise. Thereafter the applicants no. 1 and 2 started to make construction on the open piece of land which was in their possession under the terms and conditions of the compromise, the opposite party no. 2 Shiv Kumar Singh raised objection and informed the police, as a result the police arrested six persons namely applicant Dharmpal Singh, Vishwanath Singh, Lakhan Singh-Prem Singh, Ganga Prasad and Asharfi Lal and challaned them under Section 151 Cr.P.C. Ambika Singh and Virendra Singh were arrested as the second party in the proceedings under Section 107/116 Cr.P.C. However, they were released after furnishing personal bonds. Shiv Kumar Singh filed the present complaint in the court of Special Judge Anti Dacoity, Etawah on 24.4.1992. An order was passed by the Special Judge and the Criminal Misc. Case was registered.
" Register criminal case. Put up on 20.5.92 for statement under Sections 200 and 202 Cr.P.C.
24.4.92."
Thereafter affidavits of Shiv Kumar Singh, complainant and witnesses were filed which were directed to be kept on record fixing 29.5.92.
5. The Special Judge issued summons on 29.5.92 fixing 25.6.92 after perusing the complaint and affidavit. The present application was filed challenging the aforesaid proceedings which was stayed by this Court on 17.6.92. The main ground of challenge by the applicants is that since the Special Judge had passed an order on 24.4.1992 for recording the statements under Section 200 and 202 Cr.P.C, he could not issue summons without recording the statements only on the basis of affidavits filed subsequently. Chapter XV deals with the examination of the complainant by the Magistrate after taking cognizance of an offence on complaint. Section 200 Cr.P.C. is quoted below:-
"A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present; if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
6. A Magistrate has empowered to take cognizance of an offence on. the basis of complaint and before taking cognizance it. is necessary that he shall examine upon oath the complainant and witnesses present. It also specially provides the substance of such examination shall be reduced to writing and duly signed by the complainant and witnesses. The only exception is in the proviso to Section 200 Cr.P.C. The examination of the witnesses can be done away with only if the complaint is made in writing by a public servant acting of purporting to act in the discharge of his official duties or the complaint is made by a court and second exception is that if the Magistrate hands over the enquiry or trial to another Magistrate under Section 192 Cr.P.C: The present case is not covered by either of the exception provided in the proviso to Section 200 Cr.P.C. The Supreme Court in T.J. Stephen and Ors. v. Parley Bottling Co. Pvt. Ltd. and Ors. has held that the court was competent to take cognizance without examining the complainant since proviso (a) to Section 200 Cr.P.C. was applicable to the complainant, however the present case is not covered by the proviso and court was duty bound to examine upon oath of complainant and witnesses. It is also relevant to note that on 24.4.92 when the complaint was filed, the Magistrate had directed the complainant and witnesses to appear on 20.5.92 for recording the statements under Section 200 and 202 Cr.P.C. which admittedly the complainant and witnesses did not comply. The impugned order dated 29.5.92 also does not show that at the time when the process was issued or any other date when the affidavits were filed, the complainant and witnesses were personally present and had sworn the affidavits in presence of the Magistrate. In another case Chhotan Prasad Singh and Ors. v. Hari Dusadh and Ors., A.I.R. 1977, S.C. 407 it was held that Section 4(a) of the Oaths Act, 1973 all courts and persons having by law or consent of the parties authorized to receive evidence or authorized to administer oath and confirmation, but they can do so only where they are otherwise acting " in the discharge of the duties or in exercise of powers imposed or conferred upon them respectively by law". The Supreme Court in the said case had refused to accept the affidavits in a dispute under Section 145 Cr.P.C. since the affidavits were not sworn or affirmed before the Magistrate who was dealing the dispute under Section 145 of the Code were held to be not proper affidavits and did not constitute evidence for the purpose. In the instant case Section 200 Cr.P.C. makes it incumbent upon the Magistrate to examine upon oath the complainant and witnesses which has not been done. The combined reading of the two orders dated 24.4.92 and 29.5.92 are sufficient to come to the conclusion that the affidavits were filed some times in between the two dates or even assuming it were filed on the same date it was not sworn before the Magistrate as such they were no evidence in the eye of law as contemplated under Section 200 and 202 Cr.P.C.
7. The Code however empowers the court to take cognizance of an offence on the basis of complaint without any enquiry or investigation under Section 200 Cr.P.C. when it is made by public servant in discharge of his official duties and! same can not be quashed in absence of the statements of the witnesses. In the instant case admittedly it is private complaint relating to a private dispute and process has been issued without following the mandatory provisions of examining the witnesses. The summoning order, though mentions perusal of the affidavits which can not be treated to be any evidence as already held above and in the circumstances, the summoning order on the basis of the complaint and proceedings initiated on its basis stands vitiated in law and liable to be quashed.
8. For the reasons discussed above, the application is allowed and entire proceedings on the basis of the complaint vide Misc. Case No. 44 of 1992 Shiv Kumar v. Babu Singh and Ors. pending in the court of Special Judge (Anti-Dacoity) Etawah are hereby quashed.