Let me give some more information which is as follows:
It is mandatory for a magistrate to record proper verification under Sec.200 of Cr.P.C. before issuing process. Against the process, one can go to High Court under Sec.482 which normally remits the case back to the magistrate with a direction to record the statement. In other words, the accused goes back to square one.
My query is simply this. If the magistrate convicts the accused without following Sec.200, what is the position in law. When the accused appeals to the HC against conviction, what will be the position? Will the case again be sent back to the magistrate for retrial for not following Sec.200?
The decision of Justice Oka of Bombay High is extracted below.
Anil
27. As the approach of the learned Magistrate was completely erroneous, while exercising the power under Article 227 of the Constitution of India and under section 482 of the said Code, this Court will have to ensure that a litigant should not suffer due to lapse on the part of learned Magistrate. The order of process passed without recording proper verification will have to be naturally set aside but the complaint will have to be remanded and relegated to the stage of recording statement under section 200 of the said Code with a direction to the learned Magistrate to record the statement under section 200 of the Code afresh in accordance with law. This is a peculiar case where the learned Judge has not performed his duty. Merely because there are defects in the verification statement, the aforesaid course cannot be adopted. This course of sending the complainant back to the Magistrate is required to be adopted as the learned Magistrate has acted contrary to section 200 of the said Code.
28. Hence, I pass following order :(a) The impugned orders of issue of process
dated 7th September 2007 passed by the learned Magistrate are quashed and set aside.
Consequently, the judgements and orders dated 17th June 2008 passed by the learned Additional Sessions Judge is quashed and set aside; (b) The learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai will record the statement of the complainant under section 200 of the Code of Criminal Procedure, 1973 afresh in accordance with law in the light of the observations made in this judgement. After recording of the verification statement, the learned Magistrate will pass appropriate order on the complaint in accordance with law. All questions on merits are kept open; (c) The Registrar, Judicial(I) will ensure that a copy of this judgement is circulated to all learned Metropolitan Magistrates in the City of
