V. Khalid, J.
1. The petitioner before me is the complainant in C.C. No. 515 of 1971 on the file of the Sub Magistrate's Court Perumbavoor. He filed this complaint against the respondent-accused alleging that the latter was driving K.L.K. 8505 through the Alwave-Perumbavoor road in a rash and negligent manner and that the lorry dashed against his son causing him in-juries on 20.2.1970 at 10.00 A.M. The learned Sub Magistrate took the sworn statement of the complainant and examined witnesses. His states that he perused the first information statement and the scene mahazar in addition to the statements of witnesses at the enquiry. The learned Sub Magistrate found that there was no sufficient ground to proceed with the case and therefore dismissed the complaint under Section 203 of the Code of Criminal Procedure. Against this order the petitioner took the matter in revision before the District Magistrate. Ernakulam and the learned District Magistrate, by his order dated 10th December, 1971 confirmed the order of the lower Court and dismissed the revision petition. It is against that order that the revision is filed.
2. It is useful to recapitulate the facts here, which lie in a short compass. On 20.2.1970 at about 10.00 A.M. the petitioner's wife with her son used about 8 years Sot down from a bus comma from Muvattupuzha to Alwave and while they were proceeding towards west a lorry driven by the respondent came from west and dashed against the boy causing grievous hurt to him. The Perumbavoor police registered a case as crime No. 53 of 1970. but referred the same. Whereupon, the petitioner filed a private complaint after receiving the refer notice. The complaint was filed on 8.3.1971. On that day the learned Sub Magistrate directed the complainant to appear with witnesses on 15.3.1971. On 15.3.1971, the complainant and three other witnesses were examined and the case was posted for order to 17.3.1971 on which date the complaint was dismissed under Section 203, Cr.P.C.
3. The learned Counsel for the petitioner contends that the procedure adopted by the Magistrate is wrong and the order of dismissal is unjustified. The learned Sub Magistrate in addition to considering the materials placed before him by the complainant and the three witnesses looked into the first information statement and the scene mahazar and discussed the evidence of witnesses and the materials supplied by the first information report and the scene mahazar to reach his finding. What is more, he also considered the fact that the evidence of the witnesses does not tally with the blood-marks on the road as seen from the scene mahazar. It was on a consideration of all these materials that he chose to dismiss the complaint under Section 203, Cr.P.C. The question is whether the learned Sub Magistrate acted within the bounds of law in going beyond the materials available under Section 202 enquiry to dismiss the complaint. The learned District Magistrate has also fallen in line with the Sub Magistrate.
4. It was contended that the Magistrate had a duty to take the sworn statement of the complainant at once and should not have deferred it to a future date. This is explained by the learned District Magistrate by saving that the Magistrate took cognizance of the offence only on 15.3.1971 and therefore examination on oath of the complainant on 15.3.1971 is not irregular. According to him the procedure adopted by the Sub Magistrate is not in violation of the Provisions of Section 202, Cr.P.C. He proceeded to observe that 'the case of the accused which was disclosed from the enquire conducted by the police was that the child ran across the road and the injury was caused accordingly and the rash and negligent driving alleged by the Petitioner was not an admitted fact.' He was alerted at the fact that the Sub Magistrate went into extraneous materials not made available under Section 202 enquire and to which hp observes: 'Section 202 does not prevent the Court from looking into the first information statement or the mahazar prepared by the police because all that is stated is that the Magistrate may enquire into the case himself or direct an enquire or investigation to be made and under Section 203 the complaint can be dismissed after considering the statement on oath if any of the complainant and the witnesses and the result of the investigation or enquire if any under Section 202.' It is further observed that the investigation conducted under Section 202 included the examination of the complainant and the witnesses and also perusing the records available in the case and according to him the Magistrate cannot be said to have violated the provisions of the Code of Criminal Procedure.
5. Now let us examine the question of law regarding this aspect of the case. Under Section 200 of the Code, when a complaint is filed before a Magistrate, he shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. Under Section 202, a Magistrate 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 either inquire into the case himself or, if he is a Magistrate other than a Magistrate of the third class direct an enquire or investigation to be made be any Magistrate subordinate to him or by a police officer. Section 203 reads thus:
The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquire (if any) under Section 202, there is in his judgment no sufficient ground for proceeding. In such a case he shall briefly record his reasons for so doing.' The particular words which I wish to emphasize here are. 'the result of the investigation or inquire (if any) under Section 202' in the above section.
6. The point that has to be considered therefore is whether the learned Magistrate acted properly in considering matters which were extraneous to the enquire under Section 202. Both the Courts below have adverted to the fact that the first information statement and the scene mahazar were looked into by the Magistrate. It is worthwhile remembering at this stage that it was on being dissatisfied with the Police investigation that the complainant filed the protest complaint before the trial Court and if his private complaint is to be dismissed at the initial stage itself with reference to the documents prepared by the police, he cannot be expected to get any justice from Court. Therefore, the consideration of those materials be the Sub Magistrate was not in conformity with Section 202 and the learned District Magistrate committed a serious error in approving what the Sub Magistrate did. In this connection, the discussion of Their Lordships of the Supreme Court in Chandra Deo v. Prokash Chandra : 1SCR639 is useful as the law has been authoritatively laid down therein thus:
For determining the question whether any process is to be issued or not. what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquire. As stated in Sub-section (1) of Section 202 itself, the object of the enquire is to ascertain the truth or falsehood of the complaint but the Magistrate making the enquire has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by the persons examined at the instance of the complainant.
These observations by their Lordships of the Supreme Court law down the guidelines for the Courts acting under Section 203. All that the Magistrate1 can look into are the materials available at the time of the enquire and not any extraneous matter. In this case, on the admission of the Magistrate himself he has looked into the first information statement and the scene mahazar which are extraneous matters and not the result of investigation or enquire under Section 202. Consideration of these matters has therefore tainted the conclusion arrived at by the Magistrate and therefore the finding cannot be sustained. In : 1SCR639 referred to above, their Lordships of the Supreme Court have also observed:
One of the conditions, however requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation or the enquiry which he had ordered to be made under Section 202, Cr.P.C.... It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged...or on the basis of any evidence adduced before him during the enquiry arising out of the complaint.... All these were matters extraneous to the proceedings before him.
It is thus clear that having gone beyond the materials available under Section 202, Cr.P.C. the Courts below have fallen into an error which is a clear violation of the provisions in Section 202 Cr.P.C. This matter has been further made clear in the above said judgment of the Supreme Court thus:
In order to come to this conclusion, (dismissal under Section 203), he is entitled to consider the evidence taken by him or recorded in an enquire under Section 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.
Therefore, the only material that can be looked into is the one which has come out as a result of investigation or in an enquire under Section 202 and nothing else.
7. Again in Debendra Nath v. State of West Bengal : 1972CriLJ1037 it was held:
An order of dismissal of a complaint under Section 203 has to be made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage could only be to determine whether there are sufficient grounds for proceeding further or not. The mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and Proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show essential ingredients of the offences alleged are absent or that, the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203.
What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what is stated can be true unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true.
It is therefore clear that the dismissal of the complaint by the learned Sub Magistrate and its approval by the learned District Magistrate cannot be sustained. The reliance on the result of investigation by the police in the case before filing the complaint has caused serious miscarriage of justice. I therefore set aside the orders of the Courts below and the Sub Magistrate, Perumbavoor, is directed to make further enquire into the complaint in accordance with law.