JUDGEMENT On receipt of a complaint on transfer the learned Judicial Magistrate, Gyalshing, issued "summons to both the parties", and after the parties appeared before him, he "heard the parties" and by his order, impugned in this revision, the Judicial Magistrate dismissed the complaint. Presumably the learned Magistrate thought it fit to postpone the issue of process until he could inquire into the case for ascertaining the truth or falsehood of the complaint and though indisputedly he, like any other Magistrate, could do so under S. 202 of the Code of Criminal Procedure, the manner in which he did so has vitiated everything he did. 2. The impugned order of dismissal is full of repeated references to what the complainant and the person complained against stated before the learned Magistrate, but I have not been able to find, nor the learned counsel for the parties appearing before me could discover, any trace of any such statement alleged to have been made before him by any of the parties. It is trite that a complaint cannot be dismissed on the basis of statements alleged to be made by the complainant and his witnesses without recording what those statements were, because in judicial proceedings statements not recorded are, in the eye of law, statements not made. Then again, the act of the Magistrate in summoning the party complained against, making him to participate in such inquiry by allowing him to explain away the allegations of the complaint and, above all, to "gather impression" from "the demeanour of the accused that the accused/O. P. is an innocent person" cannot but vitiate the entire inquiry which the learned Magistrate purported to hold under S. 202. As pointed out by the Supreme Court in Chandra Deo v. Prokash Chandra (AIR 1963 SC 1430 at pp. 1432-1433) : (1963 (2) Cri LJ 397 at pp. As pointed out by the Supreme Court in Chandra Deo v. Prokash Chandra (AIR 1963 SC 1430 at pp. 1432-1433) : (1963 (2) Cri LJ 397 at pp. 339 to 401), "the accused does not come into the picture at all till the process is issued and that though the accused is not precluded from being present when an inquiry is held and may in fact be present in person or through counsel or agent to be informed about what is going on, yet, since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so" and "permitting an accused person to intervene during the inquiry would frustrate the very object" and would vitiate the inquiry. The Supreme Court has observed further (at p. 1433) (of AIR) : at pp. 400-401 of Cri LJ) that "no doubt, as stated in sub-sec. (1) of S. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant" and no reference has been made in these observations to any statement of the party complained against or of witnesses at his instance. As already noted, not only none of the statements, on the sole basis whereof the Judicial Magistrate dismissed the complaint, appears to have been recorded anywhere in the record, but the Magistrate also took into consideration, attached great weight to and heavily relied on the alleged statements of the person complained against in dismissing the complaint against him. In the impugned order, the Judicial Magistrate appears to have gone so far as to find the complainant to be "well-known for wealth and is influential man of the locality"; but the basis of his finding is anybody's guess and if the Judicial Magistrate imported his personal knowledge in the matter, he had done something which, every Judicial Officer should know that, he cannot. 3. 3. I would, however, like to note that in Begam Rai v. State (AIR 1952 Pat 154) : (1952 Cri LJ 473), it appears that on a complaint being filed, the Magistrate asked both the complainant and the person complained against to appear, that "both parties were present and were heard", that "both the parties produced rent receipts from the landlords and submissions were made" and that "the Magistrate being of opinion that the matter was one of a civil dispute, dismissed the complaint". Imam, J., (as his Lordship then was), sitting singly, found nothing to require intervention in revision either on merits or on the ground of non-examination of the complainant on oath. It should, however, be noted that the question of the legality or propriety of allowing the person complained against to appear and to produce documents and to make submissions at the enquiry was not considered at all in that case and while it may also be noted that the four-Judge Bench of the Supreme Court delivering the judgment in Chandra Deo v. Prokash Chandra (supra), (AIR 1963 SC 1430) : (1963 (2) Cri LJ 397) and declaring the participation of the accused at the enquiry stage to be vitiating the enquiry was presided over by Imam, J., himself, it must be noted that the decision in Begum Rai v. State (supra), (AIR 1952 Pat 154) : (1952 Cri LJ 473) cannot be regarded as an authority validating participation of the person complained against at the stage of enquiry under S. 202 in view of the clear observations of the Supreme Court, referred to herein above, in Chandra Deo v. Prokash Chandra (supra). 4. In fact Mr. A. Deb, the learned Additional Advocate-General appearing for the State, has frankly conceded that the Judicial Magistrate went entirely wrong in enquiring into the matter in the manner he did and that the order of dismissal cannot be supported on the strength of such enquiry. 4. In fact Mr. A. Deb, the learned Additional Advocate-General appearing for the State, has frankly conceded that the Judicial Magistrate went entirely wrong in enquiring into the matter in the manner he did and that the order of dismissal cannot be supported on the strength of such enquiry. The learned Additional Advocate-General has, however, submitted that the order of dismissal of the complaint can nevertheless be supported dehors such purported enquiry by the Judicial Magistrate as, according to the learned Additional Advocate-General, the complaint on the face of it does not disclose any offence and the learned Additional Advocate-General has strongly urged that, notwithstanding the illegality of the purported inquiry by the Magistrate and the dismissal of the complaint on that basis, sending back the complaint for further inquiry would be unjustified if the same is not at all a complaint as defined in S. 4(1)(h) of the Code of Criminal Procedure. When the attention of the learned Additional Advocate-General was drawn to the fact that the record does not show that the complainant in this case was examined at any stage and when he was asked that, if the purported inquiry and everything done or found by the learned Magistrate are to be excluded from consideration, whether the dismissal of the complaint on a mere scrutiny thereof, without examining the complainant on oath, would be permissible, the learned Additional Advocate-General submitted that it is now settled law that non-examination of a complainant under S. 200 of the Code is, by itself, never fatal. The learned Additional Advocate-General drew my attention to the decision of this Court in Jasman Rai v. Sonamaya Rai (1980 Cri LJ 500), where, on a consideration of the relevant laws, both statutory and judicial, it has been held by this Court that non-examination of the complainant under S. 200, Code of Criminal Procedure, would not, by itself, vitiate the trial, unless such non-examination, by itself, has prejudiced the accused. That is, however, not at all the question arising for consideration in this case where the question is the other way round, namely, whether a straightway order of dismissal of the complaint on a mere scrutiny thereof, without examining the complainant at all, is legal and proper. 5. That is, however, not at all the question arising for consideration in this case where the question is the other way round, namely, whether a straightway order of dismissal of the complaint on a mere scrutiny thereof, without examining the complainant at all, is legal and proper. 5. The learned Additional Advocate-General has referred me to the decision of the Supreme Court in Nirmaljit v. State of West Bengal (AIR 1972 SC 2639) and has particularly drawn my attention to the observations (at p. 2646) that "where the complaint is presented before him, he can under S. 200 take cognizance of the offence made out therein and has then to examine the complainant and his witnesses" (emphasis added). And the learned counsel has urged that the Magistrate has to examine the complainant then and then only when in the complaint some offence is "made out therein" and, therefore, if the allegations made in the complaint do not and cannot make any offence, there is no obligation on the part of the Magistrate to examine the complainant and he may then straightway dismiss the complaint. Relying further on the observations immediately following to the effect that "the object of such examination is to ascertain whether there is a prima facie case against the person accused of the offence in the complaint and to prevent issue of process on a complaint which is either false or vexatious or intended only to harass a person", and that "such examination is provided therefore to find out whether there is or not sufficient ground for proceeding", the learned Additional Advocate-General reiterated that the object of such examination being to ascertain whether or not there is a prima facie case against the accused of the offence made out in the complaint, such examination would not at all be necessary and would rather be a fruitless exercise when the complaint discloses no offence at all, as in that case the question of ascertaining as to Whether there is any case, prima facie or otherwise, against the person complained against, would hardly , arise. 6. 6. The observations of the Supreme Court in Vadilal Panchal v. Dattatraya (AIR 1960 SC 1113 at p. 1116) : (1960 Cri LJ 1499 at p. 1502) to the effect that "it is manifestly clear from the provisions of S. 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry" (emphasis added) might, at the first blush, suggest that examination of the complainant and consideration of his statements are conditions precedent to the dismissal of the complaint under S. 203. But to read so would be to misread the observations as they also referred in the same fashion to result of the investigation or inquiry also and it is trite that an inquiry or investigation under S. 202 is not at all obligatory but is to be made only if the concerned Magistrate thinks it fit to do so. That being so, all that was meant by those observations was that if such statements were there or any inquiry or investigation was made, the order of dismissal under S. 203 must be based on those materials and not that no order under S. 203 can at all be made without any such statement being recorded or any such inquiry or investigation being made. If the examination of the complainant before dismissing his complaint is obligatory, then the words "if any" within parenthesis in the expression "after considering the statement on oath (if any) of the complainant" would be absolutely meaningless and otiose. And such a view would also make the law on the point rather unreasonable because in that case a Magistrate, even if he has clearly realised that the complaint in writing presented to him is all rubbish and is not worth the paper written upon, would still have to proceed to examine the complainant, as if to perform some obligatory but useless ritual and then only to dismiss the complaint. True, there are good number of decisions holding that a Magistrate cannot dismiss a complaint under S. 203 until he has examined the complainant and the citations on the point in most of the leading commentaries on the Code of Criminal Procedure (e.g., the AIR Commentaries on the Code of Criminal Procedure, 1973, Vol. True, there are good number of decisions holding that a Magistrate cannot dismiss a complaint under S. 203 until he has examined the complainant and the citations on the point in most of the leading commentaries on the Code of Criminal Procedure (e.g., the AIR Commentaries on the Code of Criminal Procedure, 1973, Vol. 2, page 513) begin with the old Full Bench decision of the Bombay High Court in re Ganesh Narayan (1889 ILR 13 Bom 590 at p. 597), of the old Division Bench decisions of the Calcutta High Court in Satya Charan v. Chairman, Uttarpara Municipality (1899-3 Cal WN 17), and in Lokenath Patra v. Sanyasi Charan (1903 ILR 30 Cal 923 at p. 925) and include a number of other decisions. But it must be noted that S. 203 of the Code of Criminal Procedure, until it was amended in 1923, expressly provided that "the Magistrate may dismiss the complaint if, after examining the complainant and considering the result of the investigation (if any) made under S. 202, there is in his judgment no sufficient ground for proceeding". Therefore, under the provisions of S. 203, as it stood before the amendment of 1923, the words "if any" within brackets qualified the investigation under S. 202, but the expression "after examining the complainant" was not qualified by any such or similar words and accordingly, it had to be held in the decisions thereunder that a complaint cannot be dismissed without examining the complainant. But the deliberate insertion of the words "if any" within brackets qualifying the expression the "statement on oath of the complainant", which has also been retained almost totidem verbis in S. 203 of the new Code of Criminal Procedure of 1973, would go to show that such statement on oath of the complainant is not necessarily a must before a complaint can be dismissed under S. 203 of the Code. Be it noted that in Sikkim we are still governed by the Code of Criminal Procedure, 1898. 7. Section 200, no doubt, provides that "a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant." The expression "taking cognizance", as pointed out by the Supreme Court in Ajit Kumar v. State of West Bengal (AIR 1963 SC 765 at p. 770) : (1963 (1) Cri LJ 797 at pp. 7. Section 200, no doubt, provides that "a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant." The expression "taking cognizance", as pointed out by the Supreme Court in Ajit Kumar v. State of West Bengal (AIR 1963 SC 765 at p. 770) : (1963 (1) Cri LJ 797 at pp. 801, 802) "has no esoteric or mystic significance in criminal law or procedure" and "it merely means -become aware of, and when used with reference to a Court or Judge - to take notice of judicially". The expression has been construed by the Supreme Court in quite a number of decisions and as pointed out by this Court in O. P. Singhi v. State (1978 Cri LJ 1650), it has been consistently held by the Supreme Court that a Magistrate takes cognizance when he applies his mind to the contents of the petition of complaint "for the purpose of proceeding under the various sections of Chapter XVI". Now, S. 203 is obviously one of the various Sections of Chapter XVI, being, in fact, the last Section of that Chapter. Therefore, when a Magistrate, on receipt of a petition of complaint, applies his mind to it and on a perusal thereof finds it not to disclose the commission of any offence whatsoever and accordingly decides to proceed under S. 203 in order to dismiss it thereunder, he must be regarded to have taken cognizance thereof, as he has applied his mind for the purpose of proceeding under one of "the various Sections of Chapter XVI", being S. 203, and as because of the words "if any" qualifying the expression "statement on oath of the complainant", such statement is not a mandatory requirement of that Section, a dismissal of such a complaint without any statement of the complainant would not amount to any violation of the provisions laid down in S. 203, or any other Sections in Chapter XVI. That is why it has been held by the Supreme Court in Debendra Nath v. State of West Bengal (AIR 1972 SC 1607 at p. 1609) : (1972 Cri LJ 1037 at p. 1039) that "if, however, a bare perusal of a complaint or the evidence led in support of it shows that essential ingredients of the offence alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in the evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under S. 203, Criminal Procedure Code" (emphasis added). I would, therefore, agree with the learned Additional Advocate-General that the examination of the complainant is not a condition precedent to the dismissal of the complaint under S. 203 and that if in a given case no ingredient of any criminal offence can at all be gleaned from the petition of complaint, a Magistrate can be under no obligation to examine the complainant before dismissing the petition. The word "complaint" has been defined in S. 4(1)(h) of the Code of Criminal Procedure, 1898, to mean "allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence" and If the allegations made in a petition of complaint cannot in any way amount to an offence, the petition cannot justify any further proceeding and can only warrant dismissal, though in that case it may not, technically speaking, amount to a dismissal of any "complaint". 8. But in the case at hand, however, I do not think that the petition of complaint is so devoid of the ingredients of any offence as to warrant its outright overthrow. In the petition of complaint there is clear allegation by the complainant that the party complained against was forcibly cultivating the land belonging to the complainant having "no right and power" to do so. These allegations clearly disclose commission of offence which could not, therefore, be dismissed without giving the complainant due opportunity to prove his case and the dismissal was, therefore, illegal and the case accordingly would have to be sent back for further inquiry according to law. These allegations clearly disclose commission of offence which could not, therefore, be dismissed without giving the complainant due opportunity to prove his case and the dismissal was, therefore, illegal and the case accordingly would have to be sent back for further inquiry according to law. The Additional Advocate-General, I must note, at a later stage of his arguments, was fair enough to suggest that such a course would be proper in the circumstances of this case, but he wondered as to why the learned Sessions Judge himself could not pass such an order for further inquiry under S. 436 of the Code and instead reported the case to this Court under S. 438. I have no doubt that the learned Additional Advocate-General is right in contending that if the learned Sessions Judge found the complaint to have been illegally dismissed under S. 203, it was clearly within his jurisdiction to order further enquiry himself under S. 436 of the Code and the learned Sessions Judge was accordingly wrong in reporting the case to this Court. Any way, what the learned Sessions Judge could have and should have done will not have to be done by this Court. The impugned order of dismissal passed by the learned Judicial Magistrate is, therefore, quashed. Let the records be forthwith transmitted to the District Magistrate, West Sikkim, who is directed to make further inquiry into the complaint according to law. Let it be made clear that if on such further enquiry the learned District Magistrate also comes to the finding that there is, in his judgment, no sufficient ground for proceeding, nothing would prevent him from dismissing the complaint. If as a result of such a dismissal again, all these revisional order and the consequential further inquiry are criticized as useless exercises, the critics are to be reminded that, whether they like it or not what is administered in Courts is justice according to law and considerations of fair play and equity, however important they may be, must yield to clear and express provisions of the law" (see Ramappa v. Bojjappa AIR 1963 SC 1633 at p. 1637). Justice is, no doubt, our sole goal, but we have got to reach it through the legal road. Petition allowed.