RATANSHAH KAVASJI Vs. KEKI BEHRAMSHA

JUDGEMENT

(1.) These are two applications in revision, the first against an order made on June 3, 1943, by the First Class Magistrate, Bulsar, permitting the Police Prosecutor under Section 495 of the Criminal Procedure Code, 1898, to withdraw the case filed by the petitioner-complainant against six accused under Secs.452, 323, 504, 147 and 149, Indian Penal Code, 1860, and discharging the said accused, and the second against an order made on July 26, 1943, by the same Magistrate dismissing under Section 203 of the Criminal Procedure Code a subsequent complaint made by the petitioner on the same facts.

(2.) The petitioner made a complaint to the police on February 16, 1943, alleging that the offences had taken place on February 12, 1943. On February 17, 1943, the opponents filed a cross-complaint against the complainant and some others. After investigation the police filed a charge sheet against the accused in the first complaint on February 24, 1943, and the learned Magistrate took cognizance of the said offences. Thereafter it seems that the District Superintendent of Police thought that further investigation was necessary and after such investigation had been made the said officer appears to have moved the District Magistrate who ordered the withdrawal of the case against the accused. On May 20, 1943, the Police Prosecutor who was in charge of the prosecution stated in Court that the District Magistrate had ordered the withdrawal of the case and he asked for the Court's permission for such withdrawal. The Magistrate passed the following order on June 3, 1943 : The case is permitted to be withdrawn and the accused are discharged under Section 494, Criminal Procedure Code. The muddamal should be destroyed under Section 517, Criminal Procedure Code. On June 10, 1943, the petitioner filed a complaint in Court on the same facts. The complaint was duly verified on July 26, and on the same day the learned Magistrate made an order stating that though "the incident did take place" between the parties the police case had already been permitted to be withdrawn, and as the fresh complaint was based on the same facts as alleged before, the Court saw no grounds to proceed with the complaint, and their complaint was accordingly dismissed under Section 203 of the Criminal Procedure Code. The applicant filed criminal revision applications against the orders made in both the cases and both the applications were dismissed,

(3.) Mr. Jahagirdar on behalf of the applicant has contended that the order passed in the first case was not a judicial order as no reasons have been stated therein, the legitimate inference to be drawn from the order being that the learned Magistrate did not apply his mind to the facts of the case. He has relied on certain decisions of the Calcutta High Court and contended that before a proper order under Section 494 or Section 495 could be made, the Court must record its reasons in order that the High Court might be in a position to say whether the discretion vested in the Court had been properly exercised. As against the said decisions, Rajani Kanta V/s. Idris Thakur (1921) I.L.R. 48 Cal. 1105 etc., there are decisions of the Madras and Patna High Courts to the contrary that the Court is not bound tot give any reasons for its action under Secs.494 and 495. Mr. Jahagirdar, however, has not pressed the application for revision No. 35 and has argued the second application No. 26 on the ground that even assuming that the learned Magistrate's order under Section 495 was correct, the order subsequently made under Section 203 deserves to be set aside. His contention is that it being incumbent under Section 205 on the Court to record reasons " briefly ", the kind of reasons which the learned Magistrate has relied on in dismissing the second complaint cannot properly be regarded as reasons such as the section requires the Magistrate to record. The section enables the Magistrate before whom a complaint is made or to whom it has been referred to dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under Section 202, there is in his judgment no sufficient ground foi4 proceeding ; and it is further laid down that in such case! the Magistrate shall briefly record his reasons for so doing. The provisions of this section are clearly imperative, and failure to record reasons would be disobedience of the law and not a mere irregularity. The learned Magistrate in his order, though he states that " the incident did take place " between the parties, merely refers to the order made under Section 495 (though he refers to Section 494) and states That as the complaint before him was based on the same facts the Court sees no grounds to proceed with the complaint. These may be regarded technically as reasons for the order, but the question that arises is whether the learned Magistrate applied his mind to the facts of this case before he made this order.