1. This is a revision by the complainant against the order of the Seventh Presidency Magistrate in C. C, No. 3971 of 1956 on his file. A complaint was filed against the two respondents herein for an offence under Section 420 and Section 420 read with Section 109, I. P. C. Under Section 200, Cr. P. C. as amended, 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. Then the provisos follow.
2. But these provisos have no bearing on this case. Under Section 203 which relates to the dismissal of complaints, 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 enquiry, if any, under Section 202, there is in his judgment no sufficient ground for proceedings. The learned Counsel who appeared for the petitioner herein contends that the provisions of Section 200 and Section 203 have not been complied with, that is, that he was present with the witnesses at the time when he presented the complaint, that the witnesses were not examined on oath and that the substance of their examination has not been reduced to writing by the Magistrate.
3. But he fairly concedes that he did not present the complaint himself before the lower Court and he stated that Mr. A. Nagarajan was the advocate who appeared for the complainant in the lower Court. Mr. A. Nagarajan is now present in Court and I asked him whether the witnesses were present when he presented the complaint. He says that among the witnesses mentioned in the complaint, C. K. Ramachandran and P. S. Narayanan (Nos. 1 and 4) were present in Court.
4. Being a statement by an advocate who presented the complaint, I accept his statement, and Mr. B. T. Sundararajan, appearing for the respondents, very fairly concedes that he cannot dispute the statement of Mr. A. Nagarajan. The result is that when the complaint was presented, there were two witnesses present along with the complainant, and under Section 200, the Magistrate shall examine the complainant and the witnesses present (if any) on oath. The section is mandatory, and it is therefore obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who are present in Court.
5. The Magistrate in future will do well in asking the complainant as soon as he is examined on oath whether any witnesses are present in Court, and if witnesses were present, it is his duty to examine them on oath; but if no witnesses are present, he will do well to mention in the order itself that no witnesses were present according to the statement of the complainant or the advocate who appeared in Court.
6. There is no such reference in the present case and very probably the Magistrate has overlooked the provisions of Section 200 as amended. According to the section as it originally stood, it is enough if the Magistrate examined the complainant on oath. Under the new section, it makes it incumbent on the Magistrate to examine the witnesses who were present in Court on oath, and he can apply Section 203 only if, after examining the complainant and the witnesses who are present in Court, he finds a sufficient ground for not proceeding with the case.
7. Since this procedure has not been followed, the complainant has got a grievance. I do not wish to express any opinion either way on the merits of this case as it will embarrass the lower Court. On account of the non-compliance of the provisions of Sections 200 and 203 in not examining the witnesses who. according to the advocate who appeared in the lower Court, were present, I set aside this order of dismissal under Section 203 and direct the complaint to be restored to file, arid the case will be disposed of according to law. This complaint will be enquired into by some Magistrate other than the Magistrate who dismissed the complaint. The Chief Presidency Magistrate will effect the necessary transfer.