AMARESH CHANDRA NANDI MAJUMDAR Vs. N.K.CHANDA

JUDGEMENT

(1.) THIS is a Criminal Revision Petition filed under Section 439 Cr. P.C. against the order of the Sessions Judge, Tripura in Criminal Motion 156 of 1966, dated 1 -9 -66, to set aside the same and also the order of the Sub -Divisional Magistrate, Sadar, dated 18 -8 -66, in Criminal Case No. 611 of 1966 filed under Sec. 395, I.P.C.

(2.) THE petitioner filed criminal complaint against the respondents 1 to 5 in Criminal Case No. 611 of 1966, on 18 -8 -66, alleging that the respondents committed dacoity under Section 395 I.P.C. in the office of Tripura Apex Marketing Co -operative Society Ltd., Agartala. The learned S. D. M. examined the complainant on 18 -8 -66 and passed an order (under S. 202, Cr. P.C.) that the Circle Officer Shri N. Roy should enquire and report by 19 -9 -66. The petitioner -complainant attacked the correctness of this order under Sec. 202 Cr. P.C. by filing Criminal Motion 156 of 1966 before the Sessions Judge, Tripura, under Sections 435 and 438 Cr. P.C. The learned Sessions Judge held that the S. D. M. should have recorded his reasons under Section 202 Cr. P.C. for passing the order in question postponing the issue of process for compelling the attendance of the respondents, but that his failure to do so was only an irregularity, which is a curable defect under Section 537 Cr. P.C. He, therefore, rejected the revision petition. Hence the present Criminal Revision Petition by the complainant -petitioner to set aside the orders of the two Courts below.

(3.) THE contention of the petitioner's learned Counsel that the S. D. M. violated the provisions of Section 202 Cr. P.C. by passing the order in question without recording his reasons in writing for postponing the issue of the processes to compel the attendance of the persons complained against is well founded. Sec. 202 Cr. P.C. lays down inter alia that on the receipt of a complaint of an offence by a Magistrate, of which he is authorised to take cognizance, he may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and may either inquire into the case himself or direct an inquiry or investigation by any Magistrate subordinate to him (if he is a Magistrate other than a Magistrate of the third class) or by a police -officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint. But, under the proviso no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200 Cr. P.C. This naturally includes examination of the other witnesses present in the Court, which should also be one under Section 200 Cr. P.C. But, as already stated this question of non -examination of the other witnesses, if any, present in the Court is not being considered. The learned S. D. M. failed to record his reasons in writing for postponing the issue of processes to compel the attendance of the respondents. There is a decision of the Patna down that if a Magistrate has any doubt as High Court reported in Mukti Narayan Gir v. Emperor, AIR 1940 Pat 97, which lays to the truth of the allegations in the petition of complaint as supported by the solemn affirmation of the petitioner, he ought to record an order to that effect in the order sheet, so that the superior Courts may be 'satisfied that the Magistrate had any justification whatsoever in refusing to issue summons to the accused as required by law. So, the provision in Section 202, Cr. P.C. that the Magistrate should record his reasons in writing for postponing the issue of process is a mandatory one.