VANROSE Vs. SILVESTER RAJ

JUDGEMENT

(1.) THIS revision was directed against the order of dismissal passed by the learned Additional First Class Magistrate, Kuzhithurai under sec. 203, Crl. P. C. made in C. C. No. 125 of 1986. The petitioner herein was the private complainant in the above case.

(2.) THE brief facts which are necessary for the disposal of this revision can be stated as follows: THE complainant the petitioner herein who is the owner of the lorry bearing registration No. MDA. 8562 gave a complaint to the Pudhuk-kadai police station alleging that his lorry was stolen by the accused 1 to 3 with the help of the 4th accused. On the said complaint the police registered a case under Crime No. 57/86 and after investigation the S. I. of Police, Pudhukkadai police station referred the same as' 'mistake of fact' '. Aggrieved by the same and alleging that the s. I. has not investigated properly the petitioner herein lodged a private complaint before the learned Magistrate, Kuzhithurai and on 3. 3. 1986 the same was referred to the police under Sec. l56 (3 ). THE learned trial Judge dismissed the complaint holding that in view of the report already received from the police with regard to Crime No. 57/86 and the complaint filed by the petitioner was referred under Sec. 156 (3) the complaint cannot be taken on file. THE further reason given by the learned Magistrate in dismissing the private complaint was that in order to escape from the proceedings against him he has now filed this complaint. THE learned counsel for the petitioner vehemently argued that the order of dismissal is not sustainable as the learned trial judge merely relied upon the report under Sec. l56 (3) already given by the police and that the procedure adopted has vitiated the order. In support of this contention he relies upon the following decisions: (1) Chandra Deo v. Prakash Chandra, A. I. R. 1963 S. C. 1430: (1963)2 Crl. L. J. 397:1963 Cur. L. J. (S. C.) 93, where in it has been held: ' 'Since the object of an enquiry under Sec. 202 is to ascertain whether the allegations made in the complaint are intrinsically true. THE Magistrate acting under Sec. 203 has to satisfy himself that there is sufficient ground for proceeding in order to this conclusion he is entitled to consider the evidence taken by him or recorded in an enquiry under Sec. 202 or statements made in an investigation Under that section as the case may be. He is not entitled to rely upon any material besides this. THEre is a prima facie evidence even though an accused may have a defence that the offence is committed by some other person or persons. THE matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. A. I. R 1958 S. C. 96, referred to. Where the Magistrate has ordered an enquiry under Sec. 202 by another Magistrate it is not open to him to consider the statements recorded during investigation by the police or the evidence adduced before him during the enquiry arising out of another complaint. If the Magistrate has based his decision in dismissing the complaint on such extraneous matter, the proceedings would be vitiated.' ' (2) In re Rajangam and another, 1957 M. W. N. 625:: (1958)59 Crl. L. J. 1323: A. I. R 1958 Mad. 523, wherein it has been stated as follows: ' 'Where the Magistrate in dismissing the complaint under Sec. 203 looks into the materials, into which he cannot look for example, he makes the use of the evidence already taken on the prior complaint and the police case diary (where the party had originally preferred complaint to police who had refused to take action) the whole procedure is unwarranted by law.' ' (3) Lalaji Baishan and others v. Agalchand Rukmichand parwal and another, 1978 Crl. L. J. (Noc.) 252 (Kant), wherein it has been held: ' 'A dismissal of a complaint can be made under sec. 203 of the Code, if after considering the aforementioned material, a magistrate is of opinion that there are no sufficient grounds for proceeding in the case. THErefore, the Magistrate cannot take into consideration the material before him which was collected by the police while investigating into the case as per the directions of the Magistrate by virtue of Sec. l56 (3)of the Code.' '