1. In this case the complainant is the petitioner. He filed a complaint under Section 392, Indian Penal Code, before the Sub-Divisional Magistrate, Usilampatti. It appears that he had previously filed a complaint for the same offence but on the police investigation, a charge sheet was prepared by the Police only under Sections 334 and 323, Indian Penal Code. The case was then heard by the 2nd Class Magistrate of Tirumangalam who, after hearing the evidence for the prosecution discharged the accused under Section 253(2), Criminal Procedure Code.
2. On the present complaint, the Sub-Divisional Magistrate has not taken the sworn statement of the complainant under Section 200 and remarking (1) that, if the complainant was really robbed, he would have applied to the Sub-Magistrate who tried the former case to transfer it (2) that the complainant's only desire is to somehow implicate the counter-petitioners who are the servants of the complainant's inveterate enemy and (3) that his application to the Stationary Sub-Magistrate for an adjournment to enable the complainant to adduce further evidence was an after thought instigated by some mischevious man and (4) the present petition is a similar after thought refused to interfere.
3. That a Court is bound to examine the complainant under Section 200 and in an ordinary case, the omission to do so is a serious irregularity justifying interference on revision has been conceded by the Public Prosecutor and has been held in various cases Vide Lokenath Patra v. Sanyasi Charan I.L.R. (1903) C. 923 . It may be observed that the person prejudiced by such irregularity is the complainant and when the case ends in a conviction, he has no grievance and the accused cannot, in general, complain of the irregularity as the omission to take a sworn statement from the complainant cannot prejudice the accused. The complainant would have given a deposition at a later stage of the case and the accused must have had ample opportunities of cross-examining the complainant see Emperor v. Heman Gope (1920) 58 I.C. 459 . I therefore think that cases like Queen Empress v. Moni I.L.R. 11 Mad. 443, Saheb levari v. Emperor (1917) 49 I.C. 919 , (Patna) and Emperor v. Heman Gope (1920) 58 I.C. 459, (Patna) in each of which the accused was the petitioner before the High Court can scarcely afford a guide in the present case. The decision In re Vein Nattan I.L.R. (1911) Mad. 606 relates to a complaint before a Presidency Magistrate and turned upon the special provision in Section 200(b). Moreover the case in Queen Empress v. Murhy I.L.R. 9 All. 666 , relied on in that decision was, as pointed out in Keori v. Muhamed Bekhsh I.L.R. 18 All. 221 of an exceptional character. It was observed in the latter case 'The Legislature does require every complainant shall, as soon as he has prevailed upon the Magistrate to take cognizance of the complaint, be examined upon oath. The substance of that examination is by law required to be reduced to writing, and it is obvious that the writing must be and was intended to be distinct from the complaint.'
4. In Rangaswami Goundan v. Sabapathy Goundan 4 M.H.C.R. 162 , Koeri v. Muhammad Baksh I.L.R. 18 All. 221 , Baidyanath Mujumdar v. Nibaran Chunder Cope I.L.R. (1902) Cal. 93 , Baij Nath v. Raja Row (1911) 10 A.L.J. 79 , Mangu Koeri v. Emperor (1919) 51 I.C. 465 (Patna) the High Court interfered at the instance of the complainant. So also In re the petition of Ganesh Narayan Sathe I.L.R. 13 Bom. 590 (F.B.) where it was pointed out that 'the motives by which complaints are actuated must necessarily be of the most varied description; any attempt to determine them would open out a very wide and speculative field of inquiry. The object of a Criminal Code of Procedure is to provide a machinery for the punishment of offenders against the substantive 'Criminal Law'. The District Judge who dealt with the present case on revision distinguished in In re Ganesh Narayan Sathe I.L.R. 13 Bom. 590 (F.B.) by saying that the applicability of Section 537 was not then considered. When all the cases including in re Ganesh Narayan Sathe I.L.R. 13 Bom. 590 (F.B.) lay down that the omission to take a sworn complaint is a serious irregularity which, in general prejudices the complainant, to say that, in this case, the complainant could not have been prejudiced, on the ground that there was a prior enquiry is to do the very same thing which these cases prohibit viz., attempting to prejudge the complainant's case without having all the materials the law entitles him to place before the Court. How can a court say that the complaint has not been prejudiced under such circumstances? In my opinion all such attempts are premature and ought not to be made.
5. I therefore reverse the order of the Sub-Divisional Magistrate and direct him to take the sworn statement of the complainant under Section 200 and dispose of the case according to law.