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2000 DIGILAW 235 (CAL)

Arunangsu Basu Roy v. Depak Layalika

2000-05-09

Amit Talukdar

body2000
JUDGMENT Amit Talukdar, J.: The cart has been put before the horse. What should have been found place in the epilogue has been included in the preamble. This is the impression surfacing from the impugned order which falls for consideration in this application. 2. This application is directed against an Order No. 1 dated 6.3.2000 passed by the learned Chief Judicial Magistrate, Alipore in case No. C-759/2000. The learned Chief Judicial Magistrate, Alipore, on the basis of the Petition of Complaint after taking cognizance, dismissed the same under section 203, Cr. P.C. on the ground that the materials prima facie do not disclose any offence and mense rea is wanting and the liability, if any of the accused, is of civil in nature. 3. I have meticulously considered the averments made in the Petition of Complaint including the Initial Ejahar and I find that the learned Chief Judicial Magistrate, Alipore has grossly erred in law in dismissing the Petition of Complaint out-right on the above premises. In my view the learned Chief Judicial Magistrate, Alipore, totally misconstrued the provision of section 203, Cr.P.C. 'Sufficient materials' at the time of issuance of process cannot be equated with the materials required for the purpose of trial. 4. Section 203 of the New Code of 1973 more or less retained its nature and character as of the Old Code of 1898 except substituting 'shall' in the place of 'may' and the words 'is of opinion' that there is no sufficient ground for proceeding in place of there is 'in his judgment no sufficient ground for proceeding'. For profitable discussion the extracts of the provisions of section 203 of the Code of 1898 is set out hereunder: "203. 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 section 202, there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing." Whereas the provisions of section 203 of the New Code of 1973 runs as follows: "203. In such case he shall briefly record his reasons for so doing." Whereas the provisions of section 203 of the New Code of 1973 runs as follows: "203. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing." 5. So it is seen, more or less, the fervour of the Old Code is retained in the new Code in the provisions of section 203, Cr. P.C. with the aforesaid material changes as pointed out here-in-above. Down from the earlier Colonial days and from the dawn of the previous Century to the early horizons of this new Millenium the purposive intent of the provisions of section 203, Cr. P.C. has kept its identity intact except in the Old Code the learned Magistrate exercises a discretionary power whereas in the New Code he exercises a mandatory power as 'may' has been replaced with the word 'shall', vests the learned Magistrate to ascertain for the limited purpose as to whether there is Evidence in support of the complaint so as to justify the issue of process. Now, if we see the Legislative intent and the pervasive spirit of the said provision, it appears, what the learned Magistrate is required to do, notwithstanding the incorporation of the mandatory spirit in the New Code by inverting the word 'shall', is to see the existence and otherwise of a prima facie case on the assumption that what was stated could be true and not to make a chemical analysis of the correctness of the probability of the prosecution version which should be entrusted into the safe recluse of Evidence when the prosecution case reaches that particular arena. 6. Of course the learned Magistrate is not so powerless or divested of such discretion and walk on the tattooed lines of the prayer in the Petition of Complaint for issuance of process. He definitely has the power to apply his judicial mind and to see that as to whether the prosecution case were so fantastic and unreal that they would not reasonably by held to be true. He definitely has the power to apply his judicial mind and to see that as to whether the prosecution case were so fantastic and unreal that they would not reasonably by held to be true. Then of course, the learned Magistrate can definitely dismiss the Petition of Complaint under the provisions of section 203, Cr. P.C. I am embolcen to refer to the decision of the Supreme Court in the Case of D.N. Bhattacharya vs. State of West Bengal ( AIR 1972 SC 1607 ) to nourish my aforesaid proposition. 7. A comparative analysis of the provisions of section 203, of the 1898 and the 1973 Code fortifies the fact that in the New Code the burden of the learned Magistrate while acting under the provisions of section 203 has rather become narrower and lighter in view of the fact that it was in the Old Code if in his judgment there is no sufficient ground" whereas in the New Code the words used are 'the sufficient ground for proceeding'. Still further in the New Code the expression is 'if the Magistrate is of opinion' and obviously opinion is much less exacting than the words 'if in his judgment ..... ' in the Old Code. 8. In my humble view the postulate of section 203 of the Code of Criminal Procedure of 1973 if in the opinion of the learned Magistrate the Evidence is not palpably false and some offence has been made out then it is enough for issuing process. The learned Magistrate is not required to fill in the test-tube of his discretion to find out the molecules of a prima facie case with a microscopic eye which should be left open for the trial. The learned Magistrate is not required to fill in the test-tube of his discretion to find out the molecules of a prima facie case with a microscopic eye which should be left open for the trial. In other words, what the learned Magistrate is supposed to do at the time of exercising its power under section 203 of the Code of Criminal Procedure is neither to scrutinise the evidence nor to way the probability and improbability with the purpose of proving the case but simply to find out that whether the materials which have been placed before him by way of the Petition of Complaint and its accompaniments in the form of the Initial Ejahars can light the lamp of the prosecution to a flicker so as to have sufficient fuel for the evening lamp and not to see as to whether there is sufficiency of fuel to greet the next dawn. 9. In the flickering light of the said lamp, let us now consider the justiciability of the order passed by the leaned Chief Judicial Magistrate by dismissing the Petition of Complaint. Rummaging through the meandering pathways of the Petition of Complaint in the supporting shadow of the Initial Ejahar, I cannot persuade myself to come to the conclusion that there was absolutely no materials in the same which prompted the learned Chief Judicial Magistrate to come to his conclusion "As there is no sufficient ground for proceeding, the Petition of Complaint be dismissed under section 203 Cr. P.C.". 10. lam sorry, that with due respect to the learned Chief Judicial Magistrate, Alipore I am of the view that the finding arrived at by him is a reflection of mechanical appreciation of the issue and the reasons backed up for such conclusion are in my view not sound and not apposite with the facts and circumstances of the case nor is it a sine qua non for dismissal of a complaint under the provisions of section 203 of the Code of Criminal Procedure. 11. In this case, the learned Chief Judicial Magistrate, Alipore, has put the cart before the horse and has adjudicated the intrinsic merits of the case which he ought to have done at the time of trial. 12. 11. In this case, the learned Chief Judicial Magistrate, Alipore, has put the cart before the horse and has adjudicated the intrinsic merits of the case which he ought to have done at the time of trial. 12. I accordingly set aside the Order No.1 dated 6.3.2000 passed by the learned Chief Judicial Magistrate, Alipore in Case No. C-759/2000 and direct the learned Magistrate to forthwith issue process against the accused and since there are warrant triable cases, he may also issue a warrant if he thinks fit in terms of section 204, sub-section (1) sub-clause (b) of the Code of Criminal Procedure. 13. The Revisional Application is accordingly allowed. Revisional application allowed. Direction given.