(1) The instant application under Section 401 of the Code of Criminal Procedure read with Article 227 of the Constitution of India has been filed by the petitioner herein for setting aside the order dated 13.2.2009 passed by the learned Judicial Magistrate First Class -II Court, Port Blair in C.R. Case No. 163 of 2008 (Shri Antony v. Naidu) by reason whereof he dismissed the application dated 12.12.2008 filed on behalf of the petitioner praying for an order to permit him to examine himself on dock on Solemn affirmation before the process is issued upon the opposite party No.2 herein for commission of the offence under Sections 138/142 of the Negotiable Instrument Act read with Section 420 of the Indian Penal Code.

(2) The short question that arises for consideration in the instant application is that, "Is it mandatory for the Magistrate to examine the Complainant who has filed complaint under Sections 138/142 of the N.I. Act read with Section 420 of the I.P.C. with an affirmation as regards truthfulness of the facts mentioned in the complaint before issue of process under Section 200 of the Cr.P.C?"

(3) It so happened that Shri Antony, the petitioner herein filed a complaint in writing on 19.11.2008 against Shri Naidu under Sections 138/142 of the N.I. Act read with Section 420 of I.P.C. The said complaint contained a solemn affirmation by the complainant at the foot of it. The complainant (petitioner herein) also filed certain documents along with the complaint.

(4) I have heard Mr. Jayapal learned Counsel for the petitioner and Mr. S.K.Mandal, learned Public Prosecutor, Port Blair appearing on behalf of opposite party No.1, the State at length.

(5) Mr. Jayapal submitted that Section 190 in Chapter XIV of the Cr.P.C deals with the cognizance of offences by the Magistrates whereas Chapter XV deals with the procedure to be adopted in case of complaints to Magistrates. Section 190 of Cr.P.C mentions three modes of taking cognizance of the offence by Magistrate. Section 200 of Cr.P.C casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present if any, to reduce the substance of such examination in writing and to sign such substance. The proviso of Section 200, however, provides that when a complaint is in writing, the Magistrate need not examine the complainant and the witnesses, if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or by a Court or if the Magistrate makes over the case for inquiry or trial to another Magistrate.

(6) Mr. Jayapal further submitted that setting a criminal law into motion is a serious matter and Section 200 has provided the procedure for safeguarding the interest of the accused. When the Magistrate takes cognizance on complaint and issues process against the accused, the accused is put on guard that prima facie case has been made out against him.

(7) Mr. Jayapal, therefore, submitted that it is the duty cast on the Magistrate under Section 200 of the Cr.P.C to examine upon oath the complainant and his witnesses before dismissing the complaint under Section 203 of the Cr.P.C or before issuing of process under Section 204 of Cr.P.C.

(8) Mr. Mandal, learned Public Prosecutor appearing for the State, opposite party No.1, on the other hand submitted that the N.I. Act, 1881 is a special Act and it is a complete code in itself. Mr. Mandal further submitted that the provisions of Sections 142 and 145 of the N.I. Act override the provisions of Section 200 of the Cr.P.C and no fault can be found with if the Magistrate does not examine the complainant and his witnesses on oath under Section 200 of Cr. P.C. and relies on solemn affirmation of the complainant below complaint before issuance of process under Section 204 of Cr.P.C.

(9) While replying the submission of Mr. Mandal, Mr. Jayapal submitted that Section 142 of the N.I. Act does not exclude examination of the