The examination of the complainant on oath as per Section 200 Cr.P.C. is necessary, and failure to comply with this statutory direction would vitiate the further proceedings taken by the Magistrate.

ORDER :

The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), praying to call for the records relating to the charge sheet in Sessions Case No.4 of 2019 on the file of the IV Additional Metropolitan Sessions Judge, Vijayawada, and quash the same.

2. The 2nd respondent herein, who is the de facto complainant, has lodged a report to Penamaluru Police Station alleging that when he reached near Penamaluru Old Police Station, the accused Nos.1 to 5, viz., (1) Koya Ananda Vara Prasad, (2) Marupudi Dhana Koteswara Rao, (3) Kilaru Anjaneyulu, (4) Kilaru Subhakar and (5) Koya Srinivasa Chakravarthy, have restrained him, abused him in vulgar language and threatened him with dire consequences and stabbed him indiscriminately and beat him with an iron rod on his head and on different parts of the body.

3. Basing upon the said allegations, the police has registered the F.I.R.No.64 of 2016 dated 27.01.2016 for the offences punishable under Sections 147, 148, 324, 307, 341 r/w 149 I.P.C. against the accused. The police after due investigation, has laid the charge sheet before the I Metropolitan Magistrate, Vijayawada City, deleting the names of A2 to A5, who are arrayed as accused by the complainant in the F.I.R., by adding the names of A6 to A10, who are not arrayed in the F.I.R.

4. Aggrieved by the said deletion of the names of A2 to A5, the 2nd respondent herein filed a protest petition before the aforesaid Metropolitan Magistrate to take cognizance against A2 to A5. Basing upon the protest petition, the learned Metropolitan Magistrate by an order dated 05.01.2018 in C.F.No.4552 of 2017 in Crime No.64 of 2016 of Penamaluru Police Station, directed the Sub Inspector of Police, Penamaluru Police Station to mention the names of Marupudi Dhana Koteswara Rao (A2), Khilaru Anjaneyulu (A3), Kilaru Sudhakar (A4) and Koya Srinivasa Chakravarthy (A5) in the charge sheet.

5. Aggrieved by the said order of the learned Metropolitan Magistrate, dated 05.01.2018, the accused have filed Criminal Revision Case Nos.575 and 660 of 2018 before the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh. The High Court by an order dated 9.07.2018, has allowed the Criminal Revision Cases basing on the statement of the Public Prosecutor. The learned Public Prosecutor has submitted that after filing of the charge sheet by the police and after recording the statement of the complainant, in pursuant to the protest petition, either the Magistrate has to take cognizance of the offence and issue summons to the accused or he can re-direct the investigating agency to conduct investigation properly, inter alia observed that the procedure adopted by the learned Magistrate is not according to law and remanded the case to the learned Magistrate to consider the matter afresh and pass appropriate orders based on the contents of the charge sheet and the statement of L.W.1 as per law.

6. On remanding the matter by the High Court, the learned Magistrate, by an order dated 30.11.2018, on perusal of the documents filed in the Court and has found that there is a prima facie case against the accused Nos.2 to 5 and committed the case to the Court of Sessions under Section 209 of Cr.P.C.

7. Aggrieved by the order in taking cognizance against A2 to A5 and committing the accused to the Sessions Court, the present Criminal Petition is filed on the ground that the Court below has erred in taking cognizance without recording the sworn statement of the 2nd respondent-de facto complainant herein, hence, urged to quash the proceedings.

8. Learned counsel for the petitioners has relied on the judgment of the Karnataka High Court in Sri K.Venkataramaiah and others vs. Sri Katterao, ILR 2008 KAR 474 and also relied on the judgment of Madras High Court in M.Govindaraja Pillai vs. Thangavelu Pillai (Deceased by LRs.), 1983 Crl.L.J. 917 and the judgment of Allahabad High Court in Smt. Ganga Chauhan @ Ganga Chauh