Non-compliance with the mandatory provision of Section 200 CrPC, which requires the examination of the complainant, vitiates the proceeding.

1. This Rule is directed against a proceeding being Case No. C/1430 of 1976, now pending in the Court of the learned Sub-Divisional Judicial Magistrate, 3rd Court, Asansol. The petitioners have prayed for quashing this proceeding and certain grounds have been urged in support of the same. Before dealing with these grounds, I may state the facts of the case in a nutshell. On 15th October, 1971, the learned Public Prosecutor, Burdwan, filed a petition of complaint against the petitioners, alleging that during inspection held on 15th December, 1970, of the shop of the petitioners named and styled as M/s. N. C. Daw and Co. at Raniganj, Burdwan of which the petitioner No. 1 is the licensee and the petitioner No. 2 is an employee of the petitioner No. 1, two revolvers, one noted in the stock register and another in the repairing register could not be produced on demand and further 99 pistol cartridges and 486 gun cartridges were found short on verification of stocks and that the petitioners without having a licence to repair fire arms accepted revolvers for repair. On these allegations sanction for prosecution under the Arms Act was obtained by the learned District Magistrate for initiation of the proceeding against the petitioners. On the complaint made by the learned Public Prosecutor, the learned Magistrate took cognizance of the offence and the petitioners were summoned under the Arms Act to face a trial. That on 21st July, 1973, charges were framed against the petitioners under Section 25 (m) of the Indian Arms Act, 1959 after examination of seven witnesses. That on 29th July, 1975, the learned Sub-Divisional Judicial Magistrate dropped the proceedings in the said case and released the petitioners from their bail-bonds accepting the contentions made on behalf of the petitioners concerning the maintainability of the aforesaid case on the ground of contravention of Section 200 clause (aa) of the Code of Criminal Procedure on the basis of a decision reported in 1974 Cri LJ 1441 (Cal). That on 23rd August, 1976 more than a year after disposal of the case, being No. C/4905A of 1971, the learned Public Prosecutor Burdwan filed another petition of complaint through the learned Additional Public Prosecutor containing the same allegations as made in a complaint filed earlier under Section 25 (m) of the Indian Arms Act (No. C/4905A of 1971). The learned Magistrate perused the petition of complaint and called for the records of the earlier case and on 31st August, 1976, on scrutiny of the records of the earlier case and on considering the allegations made in the petition of complaint took cognizance of the offences alleged to have been committed by the petitioners. The learned Sub-Divisional Judicial Magistrate found that the prosecution had conducted the earlier case with due diligence and there was no bar to taking fresh cognizance upon the complaint made by the learned Additional Public Prosecutor, who was the public servant and as such need not be examined under Section 200 of the Cr. P. C. and on the basis of the previous sanction the learned Magistrate took cognizance of the offences and issued summons against the petitioners by tagging the earlier case records with the records of the present case. The petitioner No. 2 appeared in the Court of the learned Sub-Divisional Judicial Magistrate on 15th May, 1978 and the petitioner No. 1, who is an old man was allowed to be represented through his learned lawyer. The petition of complaint in paragraph 12 gives the reason for dropping the proceeding. That is clearly stated and reason for the delay in filing the subsequent case is also explained viz., the basis being the decisions, reported in 1974 Cri LJ 1441 (Cal) and 1974 Cri LJ 1079 (Cal) wherein it has been held by the Division Bench of this Court that non-compliance with the mandatory provisions of Section 200, Cr. P. C. is fatal to the prosecution. The learned Magistrate as I have already stated discharged the accused petiti