S. VENKATARAMAN, J.

( 1 ) THE petitioners who are accused in c. c. 496 of of 1990 on the file of the munsiff and j. m. f. c. , koppal, have filed this petition under Section 401 Cr. P. C. , for setting aside the Order dated 23-8-1990 passed by the learned j. m. f. c. , issuing process against them for offence under Section 494 read with Section 109, ipc.

( 2 ) THE respondent has filed the complaint before the magistrate alleging that she is the legally wedded wife of the first petitioner, their marriage having taken place on 2-6-1978 as per the custom of the family, that she was living with the first petitioner for 10 years and gave birth to three children, that the first petitioner was ill-treating her as he was given to some vices and ultimately he drove her out of the house in february 1988, that she came to know in february 1990, that the first petitioner was searching for a bride for second marriage, that she then filed a suit against him and obtained a temporary injunction restraining him from going through a second marriage, that in spite of that injunction on 8-6-1990 all the nine petitioners went to buliyamma temple at munirabad that there the first petitioner with the assistance of petitioners 3 and 4, who are his parents, and the assistance of the petitioners 5 and 6, who are the parents of the second petitioner, petitioner 7, who is the brother of the petitioner 2 and petitioners 8 and 9, who are the relatives of petitioner 2, married the second petitioner and thus the accused have committed the offence under Section 494 read with sections 109 and 34, ipc. It is further alleged in the complaint that four witnesses who had gone to the temple have witnessed the commission of the offence and that they informed the complainant about the marriage.

( 3 ) THE magistrate after taking cognizance of the offence recorded the sworn statement of the complainant and two other witnesses. After considering the allegations in the complaint and the statement of the complainant and the witnesses, the learned magistrate passed an Order holding that there was prima facie material to indicate that the first petitioner who was legally married to the complainant had during the subsistence of the marriage married the second petitioner with the assistance of the other petitioners and that they had committed the offence under Section 494 read with Section 109, ipc. He has therefore ordered issue of process to the petitioners.

( 4 ) THE learned counsel for the petitioners first contended that though under Section 200, Cr. P. C. the magistrate was required to examine the complainant and the witnesses he has permitted the Advocate for the complainant respondent to examine the complainant and the witnesses, that this is in violation of the provisions of Section 200, Cr. P. C. and as such the entire proceedings including the Order issuing process are vitiated. He relied on the judgments of this court in M/s. A. K. Agencies v. N. S. Krishna Murthy and Andanappa and others v. Gurunath, as well as the decision in P. N. S. Aiyar v. K. J. Nathan, in support of his contention.

( 5 ) SECTION 200, Cr. P. C. stipulates that the 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 the magistrate. A plain reading of the Section makes it clear that, at this stage the magistrate is not recording evidence in the case. The Section stipulates that the magistrate should examine the complainant on oath and the other witnesses. It is only when a party examines or cross-examines a witness he is permitted to do that through his advocate. The examination that is contemplated under Section 200, Cr. P. C. is not examination by the party, but by the magistrate. As such at this stage it is the duty of the magistrate himself to question the complainant and the witness

Click Here to Read the rest of this document