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Criminal Revision Case No. 60 of 1965, decided on 19th December 1968.

S. 202 read with S. 156 & Chap. XVIII‑Enquiry under S. 202‑Scope and purpose‑Power of' enquiry by Magistrate under S. 202‑Very limited and far inferior to that under Chap. XVIII though slightly better than power of investigation under S. 156‑Mago trate may examine and cross‑examine witnesses but cannot weigh evidence in yard stick of scale like a trial Court.

The enquiry under section 202, Cr. P. C. is restricted only to the ascertainment of the truth or falsehood of the complaint. The pur pose of enquiry under section 202 is only to see if the allegations in the complaint are true or false and whether in the circumstances the process should be issued against accused. An enquiry or investigation under this section is designed to afford the Magistrate an opportunity either of confirming or removing such hesitation as he may feel in respect of issuing process against the accused. Such enquiry may be conducted by a Subordinate Magistrate or by a police officer or by some other person as the Court thinks fit. If the enquiry is done by a Magistrate, it becomes a judicial enquiry, because the Magistrate can take evidence of the witnesses on oath. Whether the enquiry is conducted by a Subordinate Magistrate or a police officer or any other person, the result is the same. The proceedings in an enquiry under this section should not be dilatory or protracted. A detailed enquiry is not called for at this stage. It is undesirable that an enquiry under this section should be converted into a full‑dress trial. 'ihe whole purpose of the enquiry under section 202, Cr. P. C. being to avoid the issuance of process to the accused person in a fit case, it is not to be held as if it was a full‑dress rehearsal for the trial. A careful perusal of the section will show that the power of enquiry by a Magistrate under section 202, Cr. P. C. is very limited. It is far inferior to the power exercised by a Magistrate in an enquiry under Chapter XVIII of the Code of Criminal Procedure. In an enquiry under Chapter XVIII of the Code there are definitely some accused before the Court and the Magistrate is required in his limited sphere to appreciate the evidence produced by the prosecution as well as the defence. But in a judicial enquiry under section 202, Cr. P. C. there is no accused and the question of consideration of the defence case in such enquiry does not at all arise. The Magistrate's function in this enquiry is only to see whether the complainant has made out a prima facie case and nothing else. Thus the power of the Magistrate under section 202, though may be slightly better than the power of an Investigating Officer under section 156, Cr. P. C. is definitely lower than the power of a Magistrate under section 209 of the Code. The law relating to the power of the Magistrate in a preliminary enquiry under Chapter XVIII is now well settled. It has been uniformly held that a Magistrate holding an enquiry under Chapter XVIII cannot weigh the evidence in the measure ment of a scale like that of a trial Court. So a Magistrate holding a judicial enquiry under section 202, though may examine and cross‑examine witnesses and appreciate them to some extent, cannot weigh the evidence in the yard stick of a scale like a trial Court to find out all defects in the complainant's case or the guilt of the persons complained of. At this stage, he being concerned with the prima facie case, a protracted enquiry or a full dress rehearsal for the trial is not desirable.

49 Cr. L J 599; 52 Cr. L J 818 and 53 Cr. L J 303 ref.

S. 202 read with S. 200‑Order for judicial enquiry under S. 202 without examining complainant under S. 200‑Contrary, to law‑Proceedings of such enquiry and order passed thereon ‑Held, void and without any legal effect.

A complaint cannot be sent for judicial enquiry or investigation under section 202(1), Cr. P.C. unless the complainant has been examined on oath. An enquiry cannot be directed under this section before the Magistrate takes cognizance of an offence and examines the complainant on oath.

The order for judicial enquiry under section 202, Cr. P. C. without examining the complainant under section 200, Cr. P. C., as has happened in this case, is quite contrary to law and as a result, the proceeding of judicial enquiry and the order of dismissal passed thereon are void and have no legal effect.

Ganpat Lal v. King‑Emperor A I R 1924 All. 664 ; Jit Singh v. Ayub Khan and others A I R 1942 Pesh. 61 ; P. N. S. Aiyar v. K. J. Nathan A I R 1948 Mad. 424 ; A I R 1955 Mad. 129 and 2 D L R 77 ref.

S. 203 read with Ss. 200 & 202‑Powers of Magistrate to dismiss complaint without issuing a process‑Materials on which Magistrate to act‑Ex pressly limited to statement on oath of complainant and result of any investigation or enquiry under S. 202‑Complaint cannot be dismissed merely on basis of a report without examining complainant on oath and considering his statement thus recorded‑Making indiscriminate use of Police agency for ascertaining matters‑ Not desirable.

Section 203, Cr. P. C. gives large powers to a Magistrate to dismiss a complaint without issuing a process. The materials on which the Magistrate is to act are expressly limited by the section to the statement on oath (if any) of the complainant and the result of any investigation or inquiry under section 202. He should not consider any material not provided for in the section in dismissing a complaint. Therefore in dismissing a complaint the Magistrate is required only to consider the state ment on oath of the complainants and the result of the enquiry or investigation under section 202 and nothing else. In other words, a complaint can be dismissed only on the basis of the initial statement of the complainant and report of the enquiry officer under section 202. Except these two materials, the Magistrate cannot take into consideration any other materials for dismissing a petition of complaint.

In the instant case, the complainant was never examined under section 200, Cr. P. C. As a result, there was no initial statement recorded under that section for consideration by the Magistrate. The question may arise whether the Magistrate can at all dismiss the complaint without considering the statement on oath of the complainant. That being the main material and the power of dismissal being limited to that, the Magistrate cannot dismiss the complaint without consideration of the said material and examination of the complainant under section 200, Cr. P. C. No petition of complaint can be dismissed without considering the statement on oath of the complainant under section 200. A complaint cannot be dismissed under section 203, Cr. P. C. merely on the basis of a report without examining the complainant on oath and considering his statement recorded thereunder.

In the instant case, the Magistrate while holding the judicial enquiry had not only cross‑examined the witnesses like a defence lawyer but had also allowed the persons complained against to participate in the enquiry. He had also taken assistance from the police during cross‑examination of the witnesses. He had criticized the evidence of the complainant and his witnesses and passed definite opinion on merits of the case like a trial Court. The lengthy report submitted by him showed that he had converted the enquiry into a full dress trial and thus travelled far beyond his limit:

Held, the persons complained against were not yet accused in the enquiry under section 202, Cr. P. C. So the Enquiring Magistrate could not allow the persons complained of to partici pate in the enquiry or to cross‑examine the witnesses as they had no locus standi to appear at that stage before the Enquiring Officer.

It is not advisable for a Magistrate to make indiscriminate use of police agency for the purpose of ascertaining matters as to which they are bound to form their own opinion. Where the complaint is against a police officer, the Magistrate should not call for a report from him or from his superior or other police officer. The enquiry should be held with a fair mind and not with a pre‑conceived notion.

5 D L R 112 ; Jini Lal Mandal v. Chanderdeo Prosad A I R 1941 Pat. 419; Syed Wahid Bux Shah v. The State and another P L D 1964 Kar. 316 and Jit Singh v. Ayub Khan and others 43 Cr. L J 803 ref.

T. Ali with Muhammad Yahya for Petitioner.

Abdur Rashid for the Opposite‑Parties.

This Rule is directed against an order of dismissal of a complaint under section 203 of the Code of Criminal Procedure.

The complainant petitioner filed a petition of complaint on 21‑2‑63 before the Sub‑Divisional Magistrate, Satkhira on the alle gations that on the night following 20‑2‑63 a daring dacoity was committed in his house during his absence by the opposite‑parties who being armed with deadly weapons not only looted away cash, ornaments and other valuables worth rupees several thousands but also beat the inmates of the house. The dacoits included some police officials of Assasuni P. S. in the district of Khulna.

The Sub‑Divisional Magistrate referred the matter to the Sub‑Divisional Police Officer, Satkhira for enquiry and report. The Sub‑divisional police officer after enquiry submitted a report stating that the allegations are false.

The complainant challenged the said report and filed a naraji petition. The Sub‑Divisional Magistrate, under instruction of the Deputy Commissioner, Khulna, by an order dated 10‑4‑63 sent the petition of complaint to Mr. S. A. Chowdhury, Magistrate, 1st Class, Satkhira for judicial enquiry and report. The Enquiring Officer held the judicial enquiry, examined several witnesses and submitted a report to the Sub‑Divisional Magistrate who on the basis of the said report dismissed the complaint on 20‑8‑63. The complainant challenged the propriety of the above order before the Sessions Judge Khulna and the learned Sessions Judge after hearing the parties set aside the said order and sent the matter back to the Sub‑Divisional Magistrate with a direction to hold further enquiry into the same by another Magistrate. On receipt of the case records, the Sub‑Divisional Magistrate by an order dated 8‑2‑64 directed Mr. H. Uddin, Magistrate, 1^st Class, Satkhira for further judicial enquiry into the matter. The Enquiring Magistrate Mr. H. Uddin held judicial enquiry as directed, examined 17 witnesses and submitted a lengthy report. On the basis of this report, the Sub‑Divisional Magistrate dismissed the complaint under section 203, Cr. P. C. by a judgment dated 9‑9‑64.

The complainant‑petitioner moved the Sessions Judge, Khulna against the said order of dismissal under section 436, Cr. P. C. but the learned Sessions Judge by an order dated 24‑12‑64 rejected the motion. The petitioner thereafter moved this Court and obtained the present Rule.

The learned Advocate appearing for the petitioner has contended that the learned Stab‑Divisional Magistrate acted illegally by directing a judicial enquiry under section 202 of the Criminal Procedure Code without complying with the mandatory provisions of examining the complainant under section 200, as required by the proviso to subsection (1) of section 202 of the Code and as such the proceedings of enquiry and the order of dismissal passed thereon are void and have no legal effect. The learned Advocate has further submitted that the manner of conducting the enquiry, examination of 17 witnesses by the complainant and cross‑examination of some of them by the Magistrate, permission to the persons complaint against to participate in the enquiry proceedings and the writing out of a full‑fledged judgment, clearly indicate that the enquiry in question superseded a regular trial instead of finding out whether there was a prima facie case and the Enquiring Magistrate by adopting such a measure has travelled beyond his jurisdiction. The learned Advocate has also argued that the learned Sub‑Divisional Magistrate dismissed the complainant by illegally referring to certain materials not covered by section 203, Cr. P. C. and the dismissal of the complaint without examining the complainant under section 200 of the Code is bad in law.

The occurrence took place on 20‑2‑63. A petition of complaint was lodged on 22‑2‑63. The Sub‑Divisional Magistrate referred the petition to the Sub‑Divisional Police Officer, Satkhira for enquiry and report. The report of the Sub‑Divisional Police Officer having been challenged, the Sub‑Divisional Magistrate by an order dated 10‑4‑63 sent the matter to Mr. S. A. Chowdhury, Magistrate, 1st Class for judicial enquiry and report. This judicial enquiry was presumably directed under section 202 of the Code of Criminal Procedure. The proviso to subsection (1) of section 202 of the Code provides that no direction for judicial enquiry under that section shall be made unless the complainant has been examined on oath under the provision of section 2.00, Cr. P. C. The order of the learned Sub‑Divisional Magistrate dated 10‑4‑63 by which a judicial enquiry was directed does not show that the complainant was ever examined in the case tinder section 200, Cr. P. C.

The learned Sub‑Divisional Magistrate on receipt of the case records from the Court of Sessions again directed Mr. H. Uddin to hold judicial enquiry into the matter by an order dated 8‑2‑64. The order sheet does not show that the complainant was ever examined under section 200, Cr. P. C. before the said order. A complaint cannot be sent for judicial enquiry or investigation under section 202 (1), Cr. P. C. unless the complainant has been examined on oath. An enquiry cannot 4 be directed under this section before the Magistrate takes cognizance of an offence and examines the complainant on oath. In this connection the cases reported in A I K 1924 All. 664, A I R 1942 Pesh. 61; A I R 1948 Mad. 424; A I R 1955 Mad. 129 and 2 D L R 77 may be referred to.

The order for judicial enquiry under section 202, Cr. P. C., without examining the complainant under section 202, Cr. P. C., Q as has happened in this case, is quite contrary to law and as' a result, the proceedings of judicial enquiry and the order of dismissal passed thereon are void and have no‑legal effect.

Now coming to the question of scope of enquiry under section 202, Cr. P. C. it seems that the enquiry is restricted only to the ascertainment of the truth or falsehood of the complaint. The purpose of enquiry under section 202, is only to see if the allegations in the complaint are true or false and whether in the circumstances the process should be issued against accused. An enquiry or investigation under this section is designed to afford the Magistrate an opportunity either of confirmining or removing such hesitation as he may feel in respect of issuing process against the accused. Such enquiry may be conducted by a Subordinate Magistrate or by a police officer or by some other person as the Court thinks fit. If the enquiry is done by a Magistrate, it becomes a judicial enquiry, because the Magistrate can take evidence of the witnesses on oath. Whether the enquiry is conducted by a Subordinate Magistrate or a police officer or any other person, the result is the same. The proceedings in an enquiry under this section should not be dilatory or protracted. A detailed enquiry is not called for at this stage. It is undesirable that n enquiry under this section should be converted into a full‑dress trial. The whole purpose of the enquiry under section 202, Cr. P. C. being to avoid the issuance ., of process to the accused person in a fit case, it is not to be " held as if it was a full dress rehearsal for the trial. In this connection the cases reported in 49 Cr. L J 599, 52 Cr. L J 818 and 53 Cr. L J 303 may be looked at careful perusal of the section will show that the power of enquiry by a Magistrate under section 202, Cr. P. C. is very limited. It is far inferior to the power exercised by a Magistrate in an enquiry under chapter XVIII of the Code of Criminal Procedure. In an enquiry under Chapter XVIII of the Code there are definitely some accused before the Court and the Magistrate is required in his limited sphere to appreciate the evidence produced by the prosecution as well as the defence. But in a judicial enquiry under section 202, Cr. P. C. there is no accused and the question of consideration of the defence case in such enquiry does not at all arise. The Magistrate's function in this enquiry is only to see whether the complainant has made out a prima facie case and nothing else. Thus the power of the Magistrate under section 2u2, though may be slightly better than the power of an Investigating Officer under section 156, Cr. P. C. is definitely lower than the power of a Magistrate under section 209 of the Code. The law relating to the power of the Magistrate in a preliminary enquiry under Chapter XVIII is now well settled. It has been uniformly held that a Magistrate holding an inquiry under Chapter XVIII cannot weigh the evidence in the measurement of a scale like that of a trial Court. So a Magistrate holding a judicial enquiry under section 202, though may examine and cross‑examine witnesses and appreciate them to some extent, cannot weigh the evidence in the yard stick of a scale like a trial Court to find out all defects in the complainant's case or the guilt of the persons complained of. At this stage, he being concerned with the prima facie case, a protracted enquiry or a full dress rehearsal for the trial is not desirable.

The persons complained against are not yet accused in the enquiry under section 202, Cr. P. C. So the Enquiring Magistrate cannot allow the persons complained of to participate in the D enquiry or to cross‑examine the witnesses as they have no locus standi to appear at that stage before the Enquiring Officer. The cases reported in 5 D L R 112, A I R 1941 Pat. 419 and P L D 1964 Kar. 316 may in this connection be referred to.

It is not advisable for a Magistrate to make indiscriminate' use of police agency for the purpose of ascertaining matter as to which they are bound to form their own opinion. Where the complaint is against a police officer, the Magistrate should not call for a report from him of from his superior or other police officer. The enquiry should be held with a fair mind and not with a preconceived notion.

In the instant case, it appears, the learned Magistrate while holding the judicial enquiry has not only cross‑examined the witnesses like a defence lawyer but has also allowed the person complained against to participate in the enquiry. He has also taken assistance from the police during cross‑examination of the witnesses. He has criticized the evidence of the complainant and his witnesses and passed definite opinion on merits of the case like a trial Court. The lengthy report submitted by hire shows that he has converted the enquiry into a full dress trial and thus travelled far beyond his limit.

As regards the dismissal of the complaint, it appears that the learned Sub‑Divisional Magistrate just to dismiss the petition of complaint under section 203, Cr. P. C., has written a lengthy judgment of 17 pages which is inconceivable. This section gives large powers to a Magistrate to dismiss a complaint without issuing a process. The materials on which the Magistrate is to act are expressly limited by the section to the statement on oath (if any) of the complainant and the result of any investigation or inquiry under section 202. He should not consider any material not provided for in the section in dismissing a complaint. Therefore in dismissing a complaint the Magistrate is required only to consider the statement on oath of the Com plaint and the result of the enquiry or investigation under section 202 and nothing else. In other words, a complaint can be dis missed only on the basis of the initial statement of the complainant Land the report of the enquiry officer under section 202. Except those two materials, the Magistrate cannot take into consideration any other materials for dismissing a petition of complaint.

In the instant case, as already indicated earlier, the complainant was never examined under section 203, Cr. P. C. As a result, there is no initial statement recorded under that section for consideration by the Magistrate. Now a question may arise whether the Magistrate can at all dismiss the complaint without considering the statement on oath of the complainant.

In my opinion that being the main material and the power of dismissal being limited to that, the Magistrate cannot dismiss the complaint without consideration of the said material and examination of the complainant under section 200, Cr. P. C. No petition of complaint can be dismissed without considering the statement on oath of the complainant under section 200. A complaint cannot be dismissed under section 203, Cr. P. C. merely on the basis of a report without examining the complainant on oath and considering his statement recorded thereunder. In this connection, the case of Jit Singh v. Ayub Khan and others (43 Cr. L J 803) may be referred to.

There is another aspect of the matter. In the 17 pages judgment the learned Sub‑Divisional Magistrate has not only con sidered the report of the Enquiring Magistrate under section 202, but has also critically wighed and discussed the evidence of all the 17 witnesses. By adopting this procedure, he has finally disposed of the matter on merits and practically acquitted the accused. The evidence of the witnesses examined by the Enquiring Magistrate are not materials for consideration by the Sub‑Divisional Magistrate for the purpose of dismissing the petition of complaint under section 203. They are not also strictly speaking evidence in the case. The learned Magistrate may look into the enquiry proceedings for his satisfaction but cannot weigh and discuss them in the judgment as substantive evidence. He has dismissed the complaint by referring to certain materials which are beyond his scope. The dismissal of the complaint under section 203 cannot also be supported on that score.

The learned Sessions Judge has not considered all these points in his judgment.

For the reasons stated above the order of dismissal of the complaint under section 203, Cr. P. C. is liable to be set aside and it is accordingly set aside.

The matter is sent back on remand to the learned Sub Divisional Magistrate with a direction to examine the com plainant under section 201, Cr. P. C. and then to proceed with the case in accordance with law.

The Rule is thus made absolute.

Rule made absolute.

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