Surya Prakash Kesarwani, J.

1. Heard Sri Sanjeev Kumar Gupta, the applicant in person, learned A.G.A. for the State and Sri Nitin Gupta, learned counsel for opposite party no. 2 who has put in appearance today.

Facts:

2. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the order dated 30.01.2017 in Case No. 2923 of 2016 (Sanjeev Gupta Vs. Ashok Sabarwal and others) whereby the application dated 28.05.2016 filed by the applicant herein was rejected by the learned Addl. Chief Judicial Magistrate, Court No. 3, Ghaziabad.

3. By the aforesaid impugned order, the learned Addl. Chief Judicial Magistrate has rejected the application of the applicant which was filed for permitting the applicant for examination-in-chief.

4. Briefly stated facts of the present case are that the examination-in-chief of the applicant under Section 244 Cr.P.C. was recorded on 07.05.2016. Thereafter, charges were framed under Sections 323, 406, 420 read with 120-B IPC and on the same day matter was fixed for recording the statement under Section 246 Cr.P.C. Thereafter, 17.05.2016, 21.05.2016 were fixed. Now at this stage on 28.05.2016 the applicant has moved the aforesaid application presenting him for examination-in-chief. The learned court below has considered the submissions of learned counsel for the applicant and the provisions of Section 244 and 246 Cr.P.C. and came to the conclusion that there is no provision under Section 246 Cr.P.C. for again permitting the applicant for examination-in-chief. Consequently, the application was rejected. Aggrieved with this order dated 31.01.2017 the applicant has filed the present application.

Submissions:

5. Learned counsel for the applicant submits the impugned order is wholly arbitrary and illegal. He submits that it is a complaint case under Section 200 Cr.P.C. and therefore, the complainant gets two opportunity of leading evidence in view of the law laid down by Hon'ble Supreme Court in the case of Ajoy Kumar Ghose Vs. State of Jharkhand and others (2009) 14 SCC 115 and the law laid down by Hon'ble Supreme Court in the case of Sunil Mehta and Anr Vs. State of Gujarat and Anr (2013) 9 SCC 209 (para 16) which reads as under:

"Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to cross-examine the witnesses concerned."

6. Learned A.G.A. and learned counsel for the opposite party no. 2 supports the impugned order.

Discussions and findings:

7. I have carefully considered the submissions of the parties.

8. To examine the controversy in question, it would be relevant to reproduce the provisions namely Sections 200, 202, 203, 204, 244 and 246 of Cr.P.C. as under:-

Relevant provisions of Cr.P.C.:

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.

202.- Postponement of issue of process. (1) Any Magistrate, on rec