CHABILAL GURUNG Vs. KRISHNA BAHADUR GURUNG

JUDGEMENT

(1.) 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/s. Prokash Chandra, 1963 AIR(SC) 1430at pp. 1432-1433) : 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.) I would, however, like to note that in Begam Rai V/s. State, 1952 AIR(Pat) 154 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/s. Prokash Chandra, 1963 AIR(SC) 1430 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/s. State, 1952 AIR(Pat) 154 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/s. Prokash Chandra .