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Judgment
R.N. Biswal, J.—Despite of receiving notice the sole opp.party did not choose to enter his appearance before the Court, so on request of the learned counsel for the petitioner, the case is heard and disposed of at the stage of admission.
The petitioner has challenged the legality, propriety and correctness of the order dated 16.4.2004 passed by the S.D.J.M., Bhubaneswar in 1 C.C. No. 1097 of 2004 wherein he refused to accept the initial statement of the complainant-petitioner on affidavit. Learned counsel for the complainant-petitioner submits that as envisaged u/s 145(1) of the N.I. Act initial statement of a complainant can be given on affidavit. So the trial Court ought not have refused to accept the initial statement of the complainant-petitioner on affidavit. Section 145(1) of the N.I. Act reads as follows :
"Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code."
Because of the non obstante clause in the section. Respite of any provision in the Cr.P.C. to the contrary the evidence of a complainant can also be given on affidavit in any enquiry, trial or other proceeding of Cr.P.C. The word "proceeding" is a term of wide amplitude, which includes procedural steps to be taken in Cr.P.C. Accordingly initial statement u/s 200 Cr.P.C. which is a procedural step, can be given on affidavit. The impugned order suffers from glaring procedural defect and as such deserves to be set aside.
Therefore, the Revision is allowed and the order dated 16.4.2004 passed by the S.D.J.M., Bhubaneswar in 1 C.C. No. 1097 of 2004 is set aside. If the complainant gives his initial statement by affidavit, the S.D.J.M., Bhubaneswar shall accept the same.
The revision is allowed.
Urgent certified copy of this order be granted on proper application.