B.K. Patra, J.
1. This is an application in revision directed against an order dated 23-3-66 passed by the S.D.M., Khurda, and confirmed in revision by the A. D. M. (J), Puri in the following circumstances.
2. The petitioner lodged information at the Bolagarh P.S. that he was a bhagchasi in respect of plot Nos. 231 and 228 in Khata No. 63 in mouza Shyamsundarpur under the landlord Paramananda Mahapatra and that he raised crops in the land during the disputed year and in due course cut and kept the same in the field for subsequently making them into sheaves and that thereafter the opposite party and these two brothers along with a number of labourers trespassed into the land and removed the crops therefrom. The Police after investigation submitted a final report on the ground of mistake of law. The petitioner thereupon filed a protest petition in the court of the S. D. M., Khurda, with a prayer for rejecting the final report submitted by the police and to call upon the latter to submit charge-sheet. The S. D. M. without examining the petitioner on oath and without proceeding in accordance with the provisions laid down in Chapter XVI of the Code of Criminal Procedure rejected the petition on the ground that the local police had visited the spot and had examined boundary witnesses, who affirmed the possession of the opposite party as bhagchasi of the land and that the petitioner's case was supported by only the landlord Paramananda Mahapatra. Against this order the petitioner filed a revision petition before the A. D. M. (J), Puri who rejected it on the ground that the dispute appeared to him to be of civil nature. It is the procedure followed by the Magistrate and the correctness of the orders passed by him and the A. D. M., (J) that are now challenged before me.
3. It is now settled by the decision of the Suppreme Court reported in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 that
'There is no power, expressly or impliedly conferred, tinder the Code on aMagistrate to call upon the police to submit a charge-sheet, when they have sent a report under section 169 of the Code, that there is no case made out for sending up an accused for trial.'
Their Lordships indicated that where such a final report is received from the police, the Magistrate may either accept it and close the proceeding or the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation and may give directions to the police under Section 156 (3) to make a further investigation. The Police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set Out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190 (1) (b), notwithstanding the contrary opinion of the police, expressed in the final report.
4. It is not clear from the records whether the S. D. M, had accepted the final report submitted by the police before the petitioner filed the protest petition before him. Even if he did so, that would not stand in the way of his entertaining a complaint filed by the petitioner and if he is satisfied after examining the petitioner and the witnesses produced by him that there is a prima facie case, he may summon the accused under Section 204, Cr. P. C. In this case, as stated before a protest petition was filed by the petitioner no doubt with the prayer that the Magistrate should call for a charge-sheet. Doubtless as held in the Supreme Court decision referred to above, the Magistrate had no power to call for a charge-sheet as prayed for by the petitioner, but this does not mean that he should on that account be disentitled to get such relief as is provided by law. 'Complaint' as defined in Section 4, Cr. P. C. is an allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence.
The protest petition which is on record contains the allegation that the opposite party had taken away the crop which the petitioner had kept on his land and requested the Magistrate to take action against the opposite party in a manner which the petitioner then thought was sanctioned by law but which, as now transpires, was not within the power of the Magistrate. Merely because the prayer made by the petitioner was not in accordance with law he cannot be denied such relief as is provided under law and that provision is to treat the protest petition as a petition of complaint to be dealt with in accordance with the provisions of Chapters XVI and XVII of theCode. Section 200, Cr. P. C. enjoins that when a complaint petition is presented before the Magistrate he shall at once examine the complainant and the witnesses present if any, upon oath, and record the substance of such examination.
Thereafter he should follow one of the three following courses:
(1) to bring the accused to trial;
(2) under Section 202, Cr. P. C. either Inquire into the case himself or direct an enquiry to be made either by a subordinate Magistrate, or a police officer or such other person as he thinks fit for the purpose of ascertaining the truth or falsehood of the complaint; or
(3) to dismiss the complaint under Section 203, Cr. P. C.
In this case after the protest petition was filed before the Magistrate he did not examine the complainant on oath, but called for the F. I. R., final report, case diary from the police and after perusing the same dismissed the protest petition on the grounds already stated. The question for consideration is whether the procedure followed by the Magistrate is legal and whether the order passed by him can be upheld.
5. It is contended on behalf of the petitioner that the illegality of the procedure followed by the Magistrate consisted in (i) not examining the complainant on oath, and (ii) in relying on the investigation report made by the police.
6. So far as the first point is concerned. Section 200, Cr. P. C. appears to be mandatory that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present on oath. A decision of the Madras High Court reported in (1957) 1 Mad LJ 157 = (1957 Cri LJ 673) on which the petitioner relies says that the Magistrate could apply Section 203 only if after examining the complainant and the witnesses who are present in court he finds sufficient ground for proceeding with the case and that a dismissal of complaint under Section 203, Cr. P. C. without adopting the procedure under Section 200 is not valid, ft is contended by the opposite party that non-examination of the complainant as required under Section 200, Cr. P. C. is not illegal, but only irregular and in support of this proposition reliance is placed on a Full Bench decision of the Patna High Court reported in Bharat Kishore Lal Singh v. Judhistir Modak, AIR 1929 Pat 473 and on two decisions of this Court reported in Api Samal v. Bisi Mallik, AIR 1953 Orissa 83 and Mahavir Prasad Agarwalla v. State, AIR 1958 Orissa 11.
In the Patna case one Judhistir Modak Bled a petition before the Deputy Commissioner of Manbhum who is also the District Magistrate complaining against the high-handedness of one Bharat Kishore Lal Singh Deo and sought for protection. TheDeputy Commissioner sent it to the police for report The police report was received in due course and on the basis thereof the District Magistrate directed the prosecution, of Bharat Kishore. Against that order Bharat Kishore came up in revision and one of the contentions advanced on his behalf was that as the petition filed by Judhistir Modak was in the nature of a complaint petition he ought to have been examined by the Deputy Commissioner and that as the Deputy Commissioner had not done so, the subsequent proceedings were illegal. In the peculiar circumstances of the case, the learned Judges held that the petition filed by Judhistir Modak before the Deputy Commissioner was not a complaint as defined in Section 4 of the Code but was a petition addressed to the Deputy Commissioner, in his executive capacity seeking protection. In this view of the matter it was not necessary for the learned Judges to decide the further question whether non-examination of the complainant was illegal or merely irregular. But since that specific point had been raised before their Lordships they held that the omission to examine the complainant on oath is not an illegality but is merely an irregularity, but fhat the appellant was not entitled to any relief on that score because by reason of the irregularity he did not suffer any injustice.
It may be noticed that in the Patna case the objection regarding non-examination of the complainant was taken by the opposite party and not by the complainant. In the case reported in AIR 1953 Orissa 83 the facts were these. On a petition of complaint the Magistrate without examining the complainant on oath forwarded the same to a Police Officer of enquiry and report under Section 202, Cr. P. C. On receipt of the police report, the Sub-Divisional Magistrate directed that cognizance should be taken under Section 190 (1) (b), Cr. P. C. The accused were convicted at the trial. In revision the accused contended that the Magistrate having taken cognizance under Section 190 (1) (b) was not justified in ignoring the police report which contained statements of complainant and his witnesses at variance with those given at the trial. The learned Judge held relying on the Full Bench decision of the Patna High Court referred to above that in the circumstances of the case the Magistrate must be deemed to have taken cognizance under Section 190 (1) (a) and his omission to examine the complainant in oath was only an irregularity not vitiating the trial.
Here again it may be noticed that the objection regarding non-examination of the complainant was taken on behalf of the accused. A similar view was also taken in the subsequent decision of this Court reported in AIR 1958 Orissa 11. But that again was a case where the objection was taken not by the complainant, but by theaccused. The correct position therefore appears to be that the omission to examine the complainant on oath under Section 200, Cr. P. C. is an irregularity, and if by reason thereof the complainant is prejudiced he is entitled to an order that the subsequent proceedings are invalid. So far as the present case is concerned, prejudice in fact had been caused to the complainant because he had been deprived of an opportunity to explain his case to the Magistrate which he could have got had the Magistrate examined him on oath.
7. The second point however appears to be more substantial. The petitioner approached the Magistrate with the specific allegation that he was not satisfied with the way the police conducted the investigation and that he had reason to believe that the police sided the opposite party and submitted the final report. In these circumstances, the action of the Magistrate in relying merely on the police report and dismissing the protest petition filed by the complainant appears to be not only unjustified but also contrary to law. The materials on which the Magistrate has to act in disposing of a complaint petition under Section 203, Cr. P. C. are expressly limited by the Section itself to (i) statement on oath if any, of the complainant and the witnesses produced by him, and (ii) the result of the investigation or inquiry under Section 202. The use of any other material besides the above appears to be absolutely unwarranted. What has happened in this case is that the Magistrate had utilised the statements made by the witnesses before the police during the police investigation. That investigation by the police had not been ordered by the Magistrate under Section 202, Cr. P. C. and as such the statements made by witnesses before the police during such inquiry or the result of the inquiry embodied by the police in the final report cannot be looked into by the Magistrate in dealing with the complaint under Section 203, Cr. P, C.
In the case reported in In re, Rajangam, AIR 1958 Mad 523, the accused was alleged to have committed an offence under Section 498, I. P. C- The complainant first moved the police for action. After making some inquiry the police refused to take any action whereupon he filed the complaint petition before the Magistrate. After some witnesses were examined for the complainant the case was posted to a particular date for examination of the accused, but as on that date the complainant was absent, the complaint petition was dismissed under Section 259, Cr. P. C. The complainant thereafter filed a second complaint on the same facts before the Magistrate, The Magistrate relying on the evidence already recorded on the prior complaint and taking into consideration certain facts appearing in the police case diary dismissed the complaintunder Section 203, Cr. P. C. The District Magistrate who was moved in revision being of the view that the procedure adopted by the Magistrate was illegal, ordered further inquiry by the Magistrate. The accused approached the High Court in revision and the learned Judge Ramaswami, J. while dismissing it held that where the Magistrate in dismissing the complaint under Section 203, Cr. P. C. looks into materials, into which he cannot look, for example, he makes use of the evidence already taken on the prior complaint and the police case diary, the whole procedure is unwarranted by law.
The very same question came up for consideration before the Supreme Court in a case reported in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, AIR 1963 SC 1430 and their Lordships held that-
'Where the Magistrate has ordered an enquiry under Section 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.'
It is therefore manifest that the procedure followed by the learned Magistrate in the trial court is not in accordance with law and the order dismissing the complaint petition under Section 203, Cr. P. C. cannot be sustained.
8. The learned A. D. M. (J), Puri before whom a revision was filed noticed the infirmity in the case that the complainant was not examined on oath and that the Magistrate relied fully on the police report, but he did not appreciate the consequences thereof. He contended himself by saying that the police was justified in submitting the final report in this case and that the dispute of the parties being of a civil nature, no further action need be taken on the criminal side. He was thus wrong in the view taken by him.
9. In the result, I would allow this application, set aside the order passed by thecourts below and direct that a further inquiry should be made by the S. D. M.,Khurda according to law and in the lightof the observations made above.