Only the Magistrate who has taken cognizance of the offences in terms of Section 200 of the Cr. P.C. is competent to issue process under Section 204.

JUDGMENT :

1. The petitioners have challenged order dated 20.11.2017 passed by learned Chief Judicial Magistrate, Jammu, whereby process has been issued against the petitioners in a complaint filed by the respondent against them alleging commission of offences under Sections 498-A, 406 and 34 RPC.

2. A perusal of the trial court record shows that on 20.05.2017, a complaint was presented before the learned Chief Judicial Magistrate, Jammu (Mr. Sunit Gupta) and on the said date preliminary statements of the complainant and her one witness were recorded. The matter was adjourned by the learned Chief Judicial Magistrate from time to time and ultimately, on 31.08.2017, the successor-Chief Judicial Magistrate, Jammu (Mr. Ashwani Sharma) directed inquiry in terms of Section 202 of the Cr. P.C. and postponed issuance of the process. After report of inquiry was received from SHO, Police Station, Gandhi Nagar, Jammu, the learned Chief Judicial Magistrate (Mr. Ashwani Sharma) passed another order on 20.11.2017, wherein it was recorded that prima facie offences under Sections 498-A, 406 and 34 of RPC are made out against the petitioners and accordingly, the process was issued against them.

3. The main ground that has been urged by learned counsel for the petitioners for impugning order dated 20.11.2017 is that the Magistrate issuing the process against the accused in terms of Section 204 of J&K Cr. P.C. which is applicable to the instant case, should be the same Magistrate, who has taken cognizance of the offences in terms of Section 200 of the Cr.P.C. It has been submitted that in the instant case, two different Magistrates have undertaken the aforesaid steps in the complaint, as such, the impugned order, whereby the process has been issued against the accused, is unsustainable in law.

4. Nobody has been appearing in this petition on behalf of the respondent for a quite some time. Therefore, the matter has been taken up for final consideration in absence of the respondent.

5. Heard and considered.

6. As already noted, the primary ground for impugning order dated 20.11.2017 passed by the Chief Judicial Magistrate, Jammu is that it has been passed by a Magistrate, who has not taken cognizance of the offences, therefore, the same is unsustainable in law. In order to decide the merits of the aforesaid contention raised by learned counsel for the petitioners, it would be apt to refer to the provisions contained in Sections 200, 202 and 204, J&K Cr. P.C. which read as under:

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 follows—

(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192 ;

(b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a pubic servant acting or purporting to act in the discharge of his official duties ;

(c) when the case has been transferred under section 192 and the Magistrate so transferring it already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant.

202. Postponement for issue of process.—

(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or, direct an inquiry or investigation to be made by any Magistr