Authored By : Mitter, John Peter Grant

Mitter and John Peter Grant, JJ.

1. This rule was issued on the 17th of August last upon theMagistrate to show cause why his order, dated the 21st of July last, dismissingthe complaint of the petitioner who obtained this rule, should not be setaside. That order of the Magistrate came to be passed under the followingcircumstances. The petitioner filed a petition before the District Magistrateon the 5th of July last complaining of certain offences having been committedby the three accused persons. He was examined on the same date, and afterrecording his examination, the Magistrate passed the following order on thesame date: "Forwarded to the Assistant Superintendent, who is requested tostate the circumstances under which the house of Gopi Mohun Baboo was searched,if it was searched at all." It may be mentioned here that the AssistantSuperintendent who was requested to state the circumstances was the accusedperson No. 3. Upon that the Assistant Superintendent submitted his report, weare informed, on the 11th of July. Although that report is part of the recordof this case, and although the record was sent for, the report has not beenappended to the record that has been sent up. That the report is part of therecord appears from the final order passed in this case, to which we shallrefer hereafter. On that report being submitted on the 13th of July, theMagistrate recorded the following order: "The search complained of wasclearly within the power of the Police, and from the report submitted by theAssistant Superintendent it does not appear that it was improperly conducted. Aprima facie case of theft had been made out, of which the accounts appeared todisclose an intention on the part of the accused to use violence or force, ifnecessary, for the accomplishment of his purpose; and, under thesecircumstances, a search to discover if there were arms without license or evenlatties in unusual number was reasonable. The complaint will be filed."Then on the 21st of July the Magistrate dismissed the complaint, and he did soapparently under Section 203 of the Criminal Procedure Code, although thatsection is not mentioned in the order itself. The order dismissing thecomplaint is to the following effect: "The complaint does not disclose anyoffence as having been committed. The search made was in accordance with theprovisions of the law, and Assistant Superintendent was acting within hispowers in making the search. As to the other parties named, it appears from theAssistant Superintendents report that they merely accompanied him aswitnesses. Complaint is dismissed." This is the order with reference towhich this rule was obtained. It was passed, as already stated, under Section203 of the Criminal Procedure Code. That section gives very large powers to theMagistrate to dismiss a complaint without issuing a process at all against theaccused persons, but certain conditions are laid down in the chapter in whichthat section occurs, and those conditions must be strictly fulfil led in makingan order under Section 203. Section 200 provides that, "a Magistratetaking cognizance of an offence on complaint shall at once examine thecomplainant upon oath, and the substance of the examination shall be reduced towriting and shall be signed by the complainant, and also by the Magistrate."Then Section 201 provides the procedure to be adopted by the Magistrate if hefinds himself not competent to take cognizance of the case. Section 202 laysdown that "if the Chief Presidency Magistrate, or any other PresidencyMagistrate whom the local Government may from time to time authorize in thisbehalf, or any Magistrate of the first or second class, sees reason to distrustthe truth of a complaint of an offence of which he is authorized to takecognizance, he may, when the complainant has been examined, record his reasonsfor distrusting the truth of the complaint, and may then postpone the issue ofprocess for compelling the attendance of the person complained against, andeither inquire into the case himself, or direct a previous local investigationto be made by any officer subordinate to such Magistrate, or by a policeofficer, or by such other person, not being a Magistrate or police officer, ashe thinks fit, for the purpose of ascertaining the truth or falsehood of thecomplaint." Then comes Section 203 which says: "The Magistrate beforewhom a complaint is made, or to whom it has been transferred, may dismiss thecomplaint if, after examining the complainant and considering the result of theinvestigation (if any) made under Section 202, there is in his judgment nosufficient ground for proceeding." Reading all these sections together, itseems to us that a Magistrate may dismiss a complaint under Section 203 on anyone of these three grounds. In the first place under Section 203 if he, uponthe statement made by the complainant, reduced to writing under Section 200,finds that no offence has been committed; in the second place, if he distruststhe statement made by the complainant he may also dismiss the complaint; and inthe third place, if he distrusts the complainants statement, but his distrustis not sufficiently strong to warrant him to act upon it, he may direct afurther enquiry as provided in Section 200, and he may either conduct thisinquiry himself or depute a subordinate officer to conduct it. These are thethree cases in which a Magistrate has power to dismiss a complaint underSection 203 and refuse the issue of process. It is clear to us that underSection 202 if he distrusts the statement of the complainant, he must recordhis reasons. In any case he is bound to record his reasons for distrusting thecomplaint. That appears to us to be quite reasonable. under Section 437 of theCriminal Procedure Code this Court is vested with the power of revising theorder passed by Courts subordinate to it under Section 203, and it would beimpossible for this Court to consider whether the discretion vested in theMagistrate under Section 203 had been properly exercised, unless the Magistraterecorded his reasons for dismissing the complaint under Section 203. Now inthis case it appears to us that the grounds upon which the Magistrate hasdismissed the complaint are such as would warrant this Court in revising theorder made by him. The first ground is, that the complaint does not disclosethat any offence has been committed. We have read the statement in thecomplaint, and we think that if that statement is believed and not distrusted,there was sufficient foundation for some kind of criminal charge against theaccused persons. Then the order goes on to say : The search made was inaccordance with the provisions of the law, and the Assistant Superintendent wasacting within his powers in making the search. As to the other parties named,it appears from the Assistant Superintendents report that they merelyaccompanied him as witnesses." The Magistrate in recording these reasonshas entirely proceeded upon the report of the Assistant Superintendent. Thatappears clear because he asks for that report, and on that report being submittedon the 11th of July, he recorded the order, extracted above, on the 13th, andin his final order he refers to that report and acts upon it. Now it seems tous that the Magistrate acted illegally in calling for a report from theAssistant Superintendent, who in this case was one of the accused persons, andit was never contemplated that under Section 202 any report could be called forfrom an accused person if that accused person happened to be an officersubordinate to the Magistrate. Upon this irregularity alone we think that theorder of the Magistrate refusing to entertain the complaint must be set aside.We therefore set it aside and return the record to the Magistrate, and directthat he proceed with the case in accordance with the provisions of the law. Hisprocedure up to the time of recording the complaint was quite regular andlegal, and he must take up the case at that stage. Taking up the case at thatstage, he will proceed to deal with it in accordance with the provisions of theCriminal Procedure Code.

.

Baidya Nath Singh vs.Muspratt and Ors. (07.09.1886 - CALHC)