NATHUSING VRIDHSING v. VASANTLAL R. SHAH — 1966 DIGILAW 130 (GUJ)

N. G. SHELAT, J. ( 1 ) THIS revision application is directed against an order passed on 30th October 1964 by Mr. C. H. Vasavada City Magistrate 7 Court Ahmedabad whereby the complaint given by the petitioner against opponent No. 1 in respect of offences under secs. 420 406 465 and 468 read with sec. 34 of the Indian Penal Code came to be dismissed under sec. 203 of the Criminal Procedure Code. ( 2 ) THE complaint was filed on 26-8-64 making various allegations against the opponents in respect of their having committed offences under secs. 406 465 468 and 420 read with sec. 34 of the Indian Penal Code. The learned Magistrate passed an order on that very day for having an inquiry made by the Inspector of Police Karanj Police Station under sec. 202 of the Criminal Procedure Code. He was directed to expeditiously inquire in the matter and attach the papers alleged to have been taken from the complaint. The report was called for within a fortnight from the date of the order. Then on 3-10-64 another order is passed by the learned Magistrate whereby notice to the complainant as to why his complaint should not be dismissed under sec. 203 of the Criminal Procedure Code was issued. Similarly he directed a notice to issue to show cause as to why process should not be issued against accused No. 1 in the case. Then on 30-10-1964 it appears that the complainant and his pleader were present. After hearing the learned advocate appearing for the complainant he passed the following order:-COMPLAINANT is present. I have gone through papers of investigation. I dismiss complaint U/s. 203 Cr. P. C. Aggrieved by that order passed on 30-10-1964 by Mr. C. H. Vasavada City Magistrate 7 Court Ahmedabad the complainant has come in revision. ( 3 ) THE contention made out by Mr. Divetia the learned advocate for the petitioner is that the learned Magistrate has not complied with the Provisions contained in sec. 203 of the Criminal Procedure Code in so far as he has not recorded reasons for dismissing the complaint under sec. 203 of the Code. According to him therefore the order is illegal and a nullity and in no way curable under sec. 537 of the Criminal Procedure Code. 203 of the Criminal Procedure Code in so far as he has not recorded reasons for dismissing the complaint under sec. 203 of the Code. According to him therefore the order is illegal and a nullity and in no way curable under sec. 537 of the Criminal Procedure Code. Sec. 203 of the Criminal Procedure Code provides as under :the Magistrate before whom a complaint is made or to whom it has been transferred; may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under sec. 202 there is in his judgment no sufficient ground for proceeding. In such cases be shall briefly record his reasons for so doing. ( 4 ) NOW apart from authority it appears plain from sec. 203 of the Code itself that if in his judgment there appears no ground for proceeding with the complaint he is entitled to dismiss the complaint but while doing so as provided therein he shall briefly record his reasons for so doing. The use of the word shall contemplates mandatory character of the provision and consequently if no reasons are given for dismissal of the complaint that order would be one in contravention of that provision. The order becomes illegal and not irregular so as to say that it is curable under sec. 537 of the Criminal Procedure Code. I was referred to a case of Ratansha Kavasji v. Keki Behramsha and others A. I. R. 1945 Bombay 147 where the Division Bench of the Bombay High Court held that the provisions of sec. 203 are imperative and failure to record reasons for dismissing a complaint would be disobedience of the law and not a mere irregularity. In order to comply with the mandatory provisions of sec. 203 the Magistrate must make it apparent in his order that he bad not omitted to apply his mind to the facts before he made the order dismissing a complaint. Another case referred to by Mr. Divetia is the one of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose A. I. R. 1963 Supreme Court 1430 where the Supreme Court has laid down that where the Magistrate has dismissed the complaint without giving reasons as required by sec. Another case referred to by Mr. Divetia is the one of Chandra Deo Singh v. Prakash Chandra Bose alias Chabi Bose A. I. R. 1963 Supreme Court 1430 where the Supreme Court has laid down that where the Magistrate has dismissed the complaint without giving reasons as required by sec. 203 Criminal Procedure Code the error is of a kind which goes to the root of the matter. It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint under sec. 203 Criminal Procedure Code and absence of the reasons would make the order a nullity. Their Lordships of the Supreme Court have further observed that Even assuming however that the rule laid down in A. I. R. 1956 S. C. 116 applies to such a case prejudice is writ large on the face of the order. The complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisional Court and where he takes a matter to the revisional Court renders his task before that court difficult particularly in view of the limited scope of the provisions of secs. 438 and 439 Code of Criminal Procedure. The order passed by the learned Magistrate on the face of it discloses no reasons whatever for passing the order of dismissal of the complaint under sec. 203 of the Criminal Procedure Code. All that he states is that he has gone through papers of investigation. As to what those papers disclose he makes no reference whatever. As to whether they in his view disclose no ground for proceeding further he is completely silent. At any rate the order passed by him under sec. 203 does not disclose any reasons even in brief which are required to be stated in the order as provided under sec. 203 of the Criminal Procedure Code. Absence of any such reasons goes to the root of the matter as observed in the Supreme Court case referred to here above and that order is therefore a nullity. ( 5 ) IT was however pointed out by Mr. 203 of the Criminal Procedure Code. Absence of any such reasons goes to the root of the matter as observed in the Supreme Court case referred to here above and that order is therefore a nullity. ( 5 ) IT was however pointed out by Mr. Patel the learned advocate for the opponent No. 2 that the Court of the City Magistrate in the City of Ahmedabad has all the powers and jurisdiction of the Presidency Magistrate under the Criminal Procedure Code as contained in clause (8) of sec. 14 of the Gujarat Act XIX of 1961 and since the Presidency Magistrate is not bound to record reasons while passing any such order the order passed by the City Magistrate of Ahmedabad cannot be called illegal. According to him this Court should have called for the grounds of his decision or order while calling for the record from that Court under sec. 435 as contemplated under sec. 441 of the Criminal Procedure Code. Now his first premise appears to have been based on the assumption that the Presidency Magistrate is only required to give a brief statement of reasons for passing an order of conviction as concern Patel under sec. 370 of the Criminal Procedure Code and that since there is no other provision which requires him to give any reasons for passing any such order of dismissal of the complaint any order passed by him under sec. 203 of the Code would be a valid order. That presumption is completely wrong for the simple reason that there is a clear provision contained in sec. 203 of the Criminal Procedure Code which refers to any Magistrate whether he be the City Magistrate as in the City of Ahmedabad or the Presidency Magistrate as he is called in the City of Bombay or any Judicial Magistrate in the State. The Presidency Magistrate is not excluded from the operation of that provision which makes it imperative on any Magistrate to record his reasons in brief while passing an order under sec. 203 of the Code. It is therefore clear that when sec. 203 provides that while passing an order of dismissal of any complaint under that social the Magistrate shall record his reasons in brief he is bound to do so and not having done so would amount to an illegality and not an irregularity curable under sec. 203 of the Code. It is therefore clear that when sec. 203 provides that while passing an order of dismissal of any complaint under that social the Magistrate shall record his reasons in brief he is bound to do so and not having done so would amount to an illegality and not an irregularity curable under sec. 537 of the Criminal Procedure Code as suggested by Mr. Patel. Besides it is not that a Presidency Magistrate or the City Magistrate in Ahmedabad has not to give reasons for an order of conviction All that sec. 370 says is that he has to give a brief statement of reasons for passing such an order. In the same way he has to give reasons in brief for an order of acquittal or even discharge. They may be brief but there must appear reasons for the order passed by him so that one is assured of his having applied his mind to the evidence etc. before him. Coming to sec. 441 of the Criminal Procedure Code all that it says is that when the record of any proceeding of any Presidency Magistrate is called for by the High Court under sec. 435 the Magistrate may submit with the record a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue; and the Court shall consider such statement before overruling or setting aside the said decision or order. Now here also Mr. Patel is not right when he says that the learned Magistrate may submit grounds of his decision or order when record is called for by the High Court. This provision of law provides for a brief summary of facts and grounds of his decision when record is called for under sec. 435 of the Criminal Procedure Code. That does not mean that he can avoid giving reasons for his decision and if the case goes to the High Court he can set out his grounds for decision at the time. If that were so the Magistrate would merely pass a cryptic order by saying the complaint is dismissed or accused is acquitted or convicted as the case may be and then at leisure if record is required to be sent he can try to reconsider the Case and set out his reasons for passing that order. If that were so the Magistrate would merely pass a cryptic order by saying the complaint is dismissed or accused is acquitted or convicted as the case may be and then at leisure if record is required to be sent he can try to reconsider the Case and set out his reasons for passing that order. Nor does this provision say that the High Court shall call for any such statement. If there existed any reasons in the order he may summaries the same and send in a statement-form as done by all the Magistrates when record of cases from their Courts are called for under sec. 435 of the Criminal Procedure Code. The learned Magistrate has not submitted any such statement setting forth the grounds of his decision or order when the record was called for by this Court under sec. 435 of the Criminal Procedure Code and the order discloses none as already set out here above. There does not arise therefore any question for consideration of any such statement before setting aside the order passed by the learned Magistrate and to say that this Court should call for is not warranted by any provision of law. There is no substance whatever in that contention and it is not that the reasons were there and the statement has remained to be sent to this Court that the argument may have some consideration. It is therefore plain that the order passed under sec. 203 by the learned Magistrate is in contravention of a mandatory requirement of having to give reasons for the order and such a breach of the provision renders the order void and ineffective. It is not curable under sec. 537 of the Criminal Procedure Code. ( 6 ) IN the result the order passed by the learned Magistrate dismissing the complaint of the petitioner under sec. 203 of the Criminal Procedure Code is set aside. The case shall be sent back to the Chief City Magistrate for being placed before any other Magistrate for proceeding further from the stage where it stands in accordance with law. Order accordingly. .