The question of law involved in these Criminal Miscellaneous Cases is, whether in a complaint under Section 138 of the Negotiable Instruments Act, filed by a Government Company as defined under Section 617 of the Companies Act represented by its Development Officer (Law), it is necessary for the Magistrate to examine the complainant under Section 200 of the Code of Criminal Procedure or whether clause (a) of the first proviso to Section 200 would apply to the case.

2. Five Criminal Miscellaneous Cases are filed by the accused Surendran seeking to quash the proceedings in five cases pending before the Court of the Judicial Magistrate of the First Class-I, Ernakulam. Other eight Criminal Miscellaneous Cases are filed by Rajan, accused in those cases, to quash the proceedings therein, pending before the Courts of Chief Judicial Magistrate, Ernakulam, Chief Judicial Magistrate, Thrissur and Courts of Judicial Magistrate of the First Class at Thrissur, Kochi and Ernakulam.

3. The complaint was filed by the National Small Industries Corporation Limited represented by its Development Officer (Law). It is stated in the complaint that the complainant is a Government Company as defined under Section 617 of the Companies Act. The Company is represented by the Development Officer (Law) who is also the Power of Attorney Holder authorised to file the complaint. It is further stated in the complaint thus:

"The Power of Attorney Holder is a public servant within the ambit of Section 21 of the Indian Penal Code. Since the complainant is represented by a public servant and he is discharging his official duties, he is exempted from giving sworn statement u/s 200 of the Criminal Procedure Code for taking cognizance of the offence."

4. The contentions raised by Shri T.G. Rajendran and Shri K.S. Madhusoodanan, learned counsel appearing for the petitioners in these Criminal Miscellaneous Cases is that the learned Magistrate was not justified in taking cognizance of the case and in issuing process to the accused without taking the sworn statement of the complainant and without examining upon oath the complainant under Section 200 of the Code of Criminal Procedure. It is also submitted that clause (a) to the first proviso to Section 200 is not attracted in these cases and therefore, the complainant cannot get immunity from examination upon oath as provided under Section 200. Sri K. P. Dandapani, Senior Advocate submits that clause (a) to the first proviso of Section 200 of the Code of Criminal Procedure would apply in the case.

5. For the sake of convenience, Section 200 is extracted below:

"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 he 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."

6. Section 200 of the Code of Criminal Procedure, 1898 was also almost in similar terms. Relevant portion of Section 200 of the Code of Criminal Procedure, 1898 is as follows:

"200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate:

Provided as