Govinda Menon, J.
1. The complainant in C.C. No. 1292 of 1947 on the file of the Court of the Chief Presidency Magistrate is the petitioner in this criminal revision case, which is to revise the order of the learned Magistrate dated 9th June, 1947, dismissing the complaint under Section 203, Criminal Procedure Code, on the ground that there were no sufficient reasons to proceed with it, any further. The lower Court took the complaint on file and forwarded the same to the Commissioner of Police for investigation under Section 202 and for the submission of a report by 16th of May, 1947. Accordingly, the police enquired into the matter and submitted their report to the lower Court. After considering this report, the learned Magistrate found that there was no justification for proceeding with the complaint and dismissed the same.
2. It may be stated at the outset that the complaint was not an oral one, but had been reduced to writing before presentation to the Court and its contents were read over and explained to the complainant on the and May, 1947, when it was presented; and he admitted the same to be correct on solemn affirmation adminis-tered in the presence of the learned Magistrate. According to the record of the proceedings before the lower Court, it is found that the complainant was not examined on oath by the Chief Presidency Magistrate.
3. The learned Counsel for the petitioner contended before me, that it was obligatory on the Magistrate to examine the complainant on oath under the provisions of seetion 200, Criminal Procedure Code, before postponement of the issue of pro-cess and directing investigation by the police officer; and in this case, since such a course had not been followed by the Magistrate, his procedure in rejecting the complaint under Section 203 is illegal. The question therefore for consideration is how far the provisions of Section 200 read with proviso to Section 202 are applicable to the facts of the present case. Section 200, proviso (b) lays down that where the Magistrate is a Presidency Magistrate, the examination contemplated by the earlier portion of the section may or may not be on oath as the Magistrate in each case thinks fit. But in any case, unlike any other Magistrate, who when taking cognizance of an offence on complaint, is obliged to examine the complainant on oath, a Presidency Magistrate is given the discretion to dispense with the exami-nation on oath but the power is not given to him to completely do away with, any kind of examination at all. What has happened before the learned Presidency Magistrate in the case in question, is that the contents of the complaint were admitted to be correct on solemn affirmation by the complainant. It cannot be said that this is an examination of the complainant either on oath or otherwise. All that the complainant has done is, to state before the Court that the averments mentioned in the complaint are true and nothing more. The exami-nation of the complainant signifies that the Magistrate ought to interrogate him on the allegations or averments contained in the complaint to test whether they are prima facie true or not. Nothing like that has been done in the present case.
4. The proviso to Section 202(1) is as follows:
Provided that, save, where the complaint has been made by a Court, no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
5. This proviso was, for the first time, enacted when the Code was amended in 1923. Even then, the whole of this provision was not in existence. The words, ' save where the complaint has been made by a Court' were inserted only by an Amending Act (Act II of 1926). For the purpose of the present case this addition to the proviso is immaterial. What we have to find out is whether on the proviso as it stands now, it is an obligatory duty on the Magistrate before postponement of the issue of process by directing a police officer to inquire into the case, to examine the complainant on oath under' the provisions of Section 200. That there is such an obligation cast upon the Magistrate is clear from the words of the section itself. If any authorities were necessary, they are found in the decisions in Rekha Chamar v. King-Emperor A.I.R. 1924 All. 664 and Bhagwan Das v. Emperor : AIR1935All745 Both these cases dealt with the complaints before ordinary mofussil Magistrates and not before a Presidency Magistrate. In Re Velu Nattan (1911) 22 M.L.J. 155 : I.L.R. 35 Mad. 606 Spencer, J., has observed that a Presidency Magistrate may dismiss a complaint under Section 203 on a police report without examining the complainant. The verification on oath of a complainant before a Magistrate is a sufficient compliance with the provisions of Section 203. The omission to examine will, at the most, amount to an irregularity of the description covered by Section 537, Criminal Procedure Code. The learned Judge relies upon a decision of the Allahabad High Court in Queen-Empress v. Murphy I.L.R. (1887) All. 666. It has to be observed that this decision was long prior to the insertion of the proviso in Section 202(1). One can safely assume that when the proviso was inserted, the framers of the statute were aware of the decision in Re Velu Nattan (1911) 22 M.L.J. 155 : I.L.R. 35 Mad. 606 and the proviso was enacted with the object of making that decision no longer of any binding authority. Mr. B.T.
6. Sundararajan for the accused argues that the words ' unless the complainant has been examined on oath under the provisions of Section 200 ' denote that if no exami-nation on oath is compulsory under Section 200, it will not be necessary for the Presidency Magistrate to examine the complainant on oath where he postpones the issue of process. I am unable to agree with this contention. If it had been the intention of the Legislature to dispense with the examination on oath of a complainant by a Presidency Magistrate, where he postpones the issue of process, the section would have been worded thus:
Provided that save where the complaint has been made by a Court or to a Presidency Magistrate 110 such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200.
7. In the absence of any words to that effect in the section it is impossible to hold that the imperative necessity of examining a complainant on oath inserted by the proviso has been dispensed with in the case of a Presidency Magistrate. That this view is correct is seen from the report of the Joint Committee on the bill to amend the Code of Criminal Procedure, published in the Gazette of India, part V, dated 9th September, 1922, page 256 at 260, where it is stated as follows:
We consider that Presidency Magistrates should be required to examine the complainant and to record his statement in cases where the Court intends to postpone issue of process and order any inquiry under Section 202(1).
8. The unamended proviso contained the words, ' where such examination is prescribed by the Code ' and they were purposely omitted by the amendment. If these words had been there, it could have been successfully contended that there was no obligation upon the Court to examine a complainant on oath where the Magistrate is a Presidency Magistrate. The omission of those words and the insertion of an exemption where the complaint is by a Court make it absolutely clear that there is no difference between any other Magistrate and a Presidency Magistrate in the case of examining the complainant before the postponement of the issue of process and the ordering of an inquiry under Section 202(1).
9. Mr. Sundararajan relies upon a decision in In re Mirabai Sheik Hussein (1904) 6 Bom.L.R. 662 as authority for holding that only when a written complaint made before a Magistrate, is obscure or vague, is the Magistrate bound to examine the complainant at suffi-cient length for the purpose of clearly ascertaining the allegations on which the complaint is made; and when, however, the complaint is made in writing and is sufficiently clear, it may frequently be a sufficient compliance with Section 202 if the Magistrate reads it over to the complainant and he is asked on oath to sub-scribe it. No doubt, this decision of Chandavarkar and Aston, JJ., was passed on a criminal revision case from a Presidency Magistrate, but at the time, it was passed on 18th July, 1904, the proviso to Section 202 was not in the Code. The other decision which he invited my attention to, was one by the Court of the Judicial Commissioner of Sind reported in Hashim Moosa v. Mrs. G. Booth A.I.R. 1932 Sind 58. All that I need say is that the revision petition there, did not arise from any order of a Presi-dency Magistrate as in this case.
10. Apart from authority, on principle also the above view is essentially justified. It may be that when a complainant is examined on oath by the Magistrate, more facts are likely to be elicited than are originally obtained from a complainant. Where the complaint is oral, an examination will certainly elucidate matters to a great extent and where it has been reduced to writing an examination would probably clarify the situation. In either of these contingencies, before the Magistrate sends the complaint to the police for inquiry, he should ascertain the truth or falsehood of the complaint by an examination on oath of the complainant.
11. The failure by the Magistrate to observe this mandatory provision of the 'Code cannot be cured, in my opinion, by Section 537, Criminal Procedure Code. The non-examination on oath is not an error, omission or irregularity in the complaint. It is a non-observance of a mandatory provision of law, the infraction of which, is, according to the decision of their Lordships of the Judicial Committee in Subramania Aiyar v. King Emperor (1901) 11 M.L.J. 233 : L.R. 28 IndAp 257 : I.L.R. 25 Mad. 61 (P.C.) a disregard of an express provision of law as to the mode of inquiry and as such was not a mere irregularity such as could be remedied by Section 537, Criminal Procedure Code. It is an illegality which goes to the very root of the proceedings. I am therefore of opinion that the learned Chief Presidency Magistrate has erred in law in not complying with the provisions of Section 202, Criminal Procedure Code. The order of the learned Magistrate is set aside and he is directed to enquire into the matter afresh by examining the complainant on oath and dispose of the complaint according to law, in the light of the observations in this judgment.
12. I desire to be distinctly understood that this judgment of mine, should not, in any way, be interpreted as either accepting or rejecting any of the allegations made in the complaint. I am expressing no opinion whatever, on the merits of the complaint.