C.V. Rane, J.
1. The learned Additional Sessions Judge, Mehsana, by this Reference recommends that the order passed by the learned Judicial Magistrate, First Class, Mehsana, on the complaint filed by one Badruddin Mohmad All Vohra, on 30-3-1972, may be set aside and he may be directed to proceed with the complaint according to law.
2. According to the above complaint, three accused persons illegally entered the compound of the premises in possession of the complainant and committed mischief by removing iron sheets fixed in the ground. The accused had committed the above offences of criminal trespass and mischief on 9-5-1971 at about 9 a. m. in the morning. Even though, the wife of the complainant asked them not to remove the iron sheets from the compound, they continued their illegal acts.. The complainant on being informed went to the place and protested against the action of the accused but, they did not listen to him. The complainant, therefore, lodged a complaint at the police station on that very day. The Police Sub Inspector, Mehsana, who carried on the investigation, made a final report to the court of the learned Magistrate and applied for 'B' summary. As the accused No. 1 and his partners are influential persons, the police did not give adequate relief to the complainant. He therefore lodged a complaint in the court of the learned Magistrate, Mehsana on 30-3-1972. The learned Magistrate instead of examining the complainant as contemplated by Section 200 of the Criminal Procedure Code (hereinafter referred to as the Code), passed the following order:
To be kept with Mehsana C.R. No. 101/71 in which police has asked for 'B' summary. Kept for hearing on 24-4-1972.
Being aggrieved by the above order, the complainant preferred an application in revision to the Sessions Court at Mehsana. According to the learned Additional Sessions Judge, the above order passed by the learned Magistrate is contrary to the provisions of the Criminal Procedure Code and he has accordingly made the above Reference.
3. Section 200 of the Code provides:
A Magistrate taking cognizance of an offence on complaint 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.
The above section clearly shows that, it is incumbent upon the Magistrate to examine the complainant and the witnesses present, if any, upon oath. The provision of Section 202(1) of the Code shows that, if the Magistrate thinks it fit to postpone the issue of process for the purposes mentioned in the section, he cannot do so without first examining the complainant on oath under the provisions of Section 200. In the present case, however, it is obvious that the learned Magistrate has not followed the above provisions of the Code which are mandatory.
4. It is further difficult to understand as to what order he could have passed merely by considering the above complaint alongwith the report made by the police for issuing 'B' summary. Once cognizance of the offence is taken under Section 200 of the Code, the Magistrate has to take further steps in the matter only in accordance with the provisions of Sections 202,203 and 204 of the Code. If after examining the complainant on oath as provided by Section 200, the Magistrate is of the opinion that, there is sufficient ground for proceeding he should issue process as contemplated by Section 204 of the Code. If he finds that, it is necessary to make further inquiry or investigation into the matter, he should take action as provided in Section 202 of the Code. Section 203 of the Code provides that, the Magistrate may dismiss a complaint if after considering the statement on oath, if any, of the complainant and the witnesses and the result of the investigation or inquiry, if any, under Section 202 of the Code, there is, in his judgment, no sufficient grounds for proceeding. Now, in the present case, a final report was made by the Police Sub Inspector before the complaint was filed in the Court of the learned Magistrate. Under these circumstances, the above report cannot be treated as a report based on the investigation made in pursuance of the directions issued by the learned Magistrate under Section 202 of the Code. This shows that, the learned Magistrate could not have made any legal order on the basis of the report for 'B' summary. Considering all these circumstances it becomes evident that, the order passed by the learned Magistrate is not legal and hence, it should be set aside. The learned Assistant Government Pleader also agrees with the above view. The Reference is therefore accepted.
5. The order in question passed by the learned Magistrate is set aside and the record of the case is sent back to the Court of the learned Magistrate, Mehsana, with the directions that he should deal with the complaint in accordance with the provisions of law referred to above.