K. Sadasivan, J.
1. This revision is against the of the Code to the Police without , Quilon 'accepting' the refer report filed in the case by the police. A private complaint alleging offences under Sections 420, 423. 342 and 506(ii) IPC was presented before the Magistrate against 6 persons. The Magistrate forwarded the complaint to the police under Section 156(3) of the Code of Criminal Procedure. The police, after investigation, filed a reported charge. Against this notice was issued to the complainant by the Magistrate. On receipt of which he filed a protest petition requesting the court to ignore the final report of the police and take the case to the file. The learned Magistrate without even examining the complainant has passed the impugned order which concludes thus:
Thus for the foregoing reasons, I repel this objection to the refer report filed by the police and the same is accepted.
2. I am afraid the learned Magistrate has misguided himself, the relevant provisions of the Code of Criminal Procedure have been misunderstood. The provision of Section 200 of the Code is mandatory. The section provides that the 'Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses, if any present, upon oath.' In the present instance the complaint lodged before the magistrate was forwarded by him under Section 156(3) of the Code to the Police without examining the complainant on oath. That omission the learned Magistrate could have set right when the protest petition was received from the complainant.
The omission to examine the complainant on oath under Section 200 was; an irregularity, and if by reason thereof1 the complainant was prejudiced, he was entitled to an order that the subsequent proceedings were invalid. 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. (vide Lakshman Jena v. Sudhakar Paltasingh : AIR1969Ori149 ).
In that case the police after investigation on an information lodged by the petitioner submitted a final report. The petitioner thereupon filed a protest petition in the court of S. D. M. for rejecting the final report and to call upon the police to submit a charge-sheet. He had also alleged in the petition that the opposite party had taken away the crop which he had kept on his land and requested the Magistrate to take action against the opposite party. The S. D. M. without examining the petitioner on oath and without proceedings in accordance with the provisions laid down in Chapter XVI. Criminal P.C. relying merely on the police report rejected the petition. The Magistrate, of course, had no power to call for a charge-sheet as craved for by the petitioner, but that did not mean that he should on that account be disentitled to get such relief as was provided by law. Merely because the prayer made by the petitioner was not in accordance with law he could not be denied such relief as was provided under law and that provision was 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 the Code. In the case before me unlike in the one cited above, the prayer of the petitioner in the protest petition was that the refer report should be rejected and the complaint filed by the petitioner should be restored to file and proceeded with according to law. So it cannot be said that he has asked the court for something which the court was not empowered to grant. The learned Magistrate relying solely on the police report has dismissed the protest petition. This is not only unjustified; but is also contrary to law. In the above said Orissa decision, the following further observations appear:
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 circumstances that in the present case the report of the police was called for under Section 156(3) and not under Section 202 is not of much consequence, because even a report received under Section 156(3) can be disposed of only under Chapter XVI of the Code and in doing that the requirement of Section 203 has to be complied with. The learned Magistrate has no jurisdiction to dispose of the protest petition without examining the complainant, What he is expected to do is to restore the complaint petition to his file and give an opportunity to the complainant to cite his witnesses and establish his case. The action of the learned Magistrate is wrong and unwarranted.
3. I would, therefore, set aside the order and direct the restoration of the complaint of the petitioner to the file of the court to be dealt with according to law.