( 1 ) THE learned single Judge of this Court has referred a group of Criminal Petitions filed under Section 482, Cr. P. C. to the Division Bench for resolution of a point of procedure which is of some consequence. Though, as we shall presently point out, the consenus in a whole string of earlier decisions has been in favour of the view that the participation of the complainant's Advocate at the stage when the verification statement is being taken down by the presiding Magistrate while scrutinising a private complaint is not permissible, there has been some difference of opinion in this regard particularly on the question as to whether the deviation from this procedure would result in an illegality or whether it is a curable irregularity. Section 200 of the Cr. P. C. underwent drastic amendments when the new Criminal Procedure Code came on the statute book in 1973. The section as it now appears in the Cr. P. C. is reproduced below for ready reference :"200. Examination of complainant :- 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- (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b)if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 :provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. "

( 2 ) THE controversy hinges around the first part of Section 200, Cr. P. C. The section prescribes that it is mandatory for the learned Magistrate before whom the complaint is presented to examine the complainant and his witnesses and to record the substance of such examination. The underlying purpose behind following of this procedure is a salutory one and we shall deal with it at some length presently. The complainant is invariably represented by a lawyer and the procedure that was being followed in a large number of cases which includes the present set, was that at the verification stage the complainant's learned Advocate used to conduct a virtual examination-in-chief which the Court used to take down and thereafter act upon. The challenge in the present set of petitions hinges around the question as to whether such a procedure is at all permissible and the anciliary aspect of the issue is as to whether such a procedure if permissible is desirable or justified. Experience has shown that there are several aspects that need to be taken into account by this Court in this regard, because the Code of Criminal Procedure only prescribes the procedure that is required to be followed in the conduct of these cases and it is well settled law that such procedures are no more than the guidelines. Undoubtedly, those guidelines are required to be observed and not breached but in finally adopting the procedure which a Court has got to follow, it is equally well settled law that certain amount of lee-way is permissible provided that it is in consonance with the interest of justice. It is this last aspect of the matter that the learned S. P. P. has emphasised on, in so far as he points out that in all the earlier judgments, a purely technical view was taken by mechanically insisting on the letter of the law, but his submission was that it is equally important for a Court to ensure that the procedure prescribed is fair, that it is practical and that it takes cognizance of the various day today working requirements. To quote an example, the learned S. P. P. did point out to us that the subordinate criminal courts are abnormally over burde

Click Here to Read the rest of this document