B.SIVA SANKARA RAO,J. - (1.) These 3 petitions filed by accused Nos. 1 to 3 respectively of C.C.No. 963 of 2014 on the file of Additional Judicial Magistrate of First Class, Jagtial. The said CC is outcome from the private complainant of the 2nd respondent-private complainant herein against the 3 accused supra for the offence punishable under Section 500 IPC defined in 499 IPC read with 34 IPC. It is based on the said private complaint of the de facto complainant supra dated 08-08-2014 after taking the sworn affidavit of the complainant dated 25-09-2014, the learned Magistrate has taken cognizance by order dated 18-11-2014 in CF.No. 4660 of 2014. The said cognizance order of the learned Magistrate is as follows: "Complainant present. Heard and Perused Record. Complainant Arigela Ashok is working as lecturer in SKNR, college Govt. Arts and science college, Jagtial, thus he is a public servant. Accused No. 1 to 3 are also public servants. In the year, 2011 the complainant, was appointed as observer for under graduate/graduates Distant Mode of education exams conducted by Dravidum University, Kuppam from 03-01-2011 to 24-01-2011 at NSV degree college, Jagtial. The accused No. 1 to 3 defamed that the complainant was responsible in the said examination which is false. Even the government has also gave clean chit to complainant. According to complainant, Accused No. 1 to 3 who are also Government servants, with a mala fide intention to cause damage to reputation of complainant, made propaganda to this effect. According to complainant, it is official duties of public servant, to defame another public servant, hence the protection under section 197 of Cr.P.C., 1973 is applicable to the accused. To this effect he relied on the judgment of Hon'ble Supreme Court in the case of Balbir Singh v. DN Kadian (law suit) 1985 SC 359. During course of enquiry sworn statement of complainant taken on record and on perusal material placed before me, and after having heard the learned counsel for complainant, I am of the considered opinion that the complainant has made out prima facie case against the accused for the offence under section 499 and 500 IPC, hence taken cognizance for the said offence accused A1 to A3, as A1 to A3 entitle to claim protection under section 197 of Cr.P.C., 1973 Issue summons to A1 to A3, call on 23-01-2015."
(2.) From perusal of the above it shows there is no recording of the sworn affidavit of the de facto complainant by the learned Magistrate as contemplated by Section 200 Cr.P.C., 1973 which speaks as follows: "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 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 re-examine them.
(3.) The proviso to Section 200 Cr.P.C., 1973 has no application to the de facto complainant for filing of the complaint as a public servant, in discharge of his duties as public servant in making the complaint. Once such is the case, the very taking of cognizance on the sworn affidavit without examination on oath of the complainant though it is mandatory from the very wording of Section 200 Cr.P.C., 1973 is no way sustainable on that count itself of the very cognizance order.;