ORDER
A.K. Patnaik, J.
1. This is a petition under Section 482 of the Criminal Procedure Code, 1973, against the order dated 31-12-96 passed by the Chief Judicial Magistrate, Kamrup, Guwahati, in complaint case No. 1014 (C) of 1996, dismissing the complaint of the petitioner.
2. The facts briefly are that the petitioner filed a complaint before the Chief Judicial Magistrate, Kamrup, Guwahati, alleging commission of offence of theft, house breaking, damage of valuable properties and disobedience of orders of the High Court by the respondents. On 17-6-96, when the complaint was filed, the Chief Judicial Magistrate examined the complaint and after perusal of the statement of the complainant was of the view that there was necessity of a preliminary enquiry under Section 202 of the Criminal Procedure Code (for short “Cr. P.C”) and fixed the enquiry to 17-7-96. On 17-7-96 and on various dates thereafter the complainant did not produce any witness and instead prayed for adjournment. On 31-12-96, however, the complainant was absent and did not take any step and the learned Chief Judicial Magistrate dismissed the complaint after observing that the complainant has not produced any witness.
3. Mr. A.K. Bhattacharjee, petitioner in person, submitted that under Section 203, Cr.P.C., the Magistrate can dismiss the complaint only after he is of the opinion that there is no sufficient ground for proceeding. He relied on the decision of the Supreme Court in the case of D. N. Bhattacharjee v. State of West Bengal (1972) 3 SCC 414 : (1972 Cri LJ 1037), in which it has been held that an order of dismissal of complaint under Section 203, Cr.P.C, has to be made on judicially sound grounds, that is, for reasons which show that the proceedings cannot terminate successfully in a conviction. According to Mr. Bhattacharjee, the Magistrate should have recorded the reasons showing that the proceeding would not have terminated successfully in a conviction, or that the complaint along with the statement on oath of the complainant recorded by the Magistrate disclosed a dispute between the parties which is of civil nature.
4. Mr. C. Choudhury, learned counsel for the respondents, on the other hand, contended that under Sections 249 and 256, Cr.P.C, the Magistrate has the power to dismiss a complaint and discharge the accused when the complainant is absent. He further submitted that the order dated 17-6-96 of the Chief Judicial Magistrate would show that the complainant was directed to produce witnesses in support of his complaint and since the complainant did not produce witnesses before the Court on several dates and took adjournment and even remained absent on 31-12-96, the Court had no option but to dismiss the complaint by the impugned order dated 31-12-96.
5. On a perusal of the order-sheet of the case before the Chief Judicial Magistrate it is clear that the Magistrate was yet to take decision as to whether he would further proceed with the complaint of the petitioner. On 17-6-96 when the complaint was filed, after examining the complainant and on perusal of the statement of the complainant, the Magistrate was of the view that a preliminary enquiry under Section 202, Cr.P.C, was necessary. Sections 202 and 203, CrPC, are extracted hereinbelow-
202. Postponment of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding;
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In an inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and in every such case he shall briefly record his reasons for so doing.
A reading of Section 202, Cr.P.C, would show that the Magistrate can conduct an inquiry under Section 202 either himself or by directing investigation to be made by a police officer or by any other person as he deem fit for the purpose of deciding whether or not “there is sufficient grounds for proceeding”. A reading of Section 203, Cr.P.C, would further show that if after considering the statement on oath if any of the complainant and of the witnesses and on result of the investigation if any under Section 202, Cr.P.C, the Magistrate is of the opinion that “there is no sufficient ground for proceeding”, he shall dismiss the complaint and in every such case, he will record reasons in doing so. The Magistrate, therefore, will conduct inquiry under Section 202, Cr.P.C, for the purpose of deciding whether or not there is sufficient ground for proceeding and where such inquiry is not possible for non-production of witness by the complainant as in the present case, the Magistrate will consider only the statement on oath of the complainant and record an order with reasons as to whether he is of the opinion that there is sufficient ground for proceeding or not. If on consideration of such statement on oath of the complainant, the Magistrate is of the opinion that there is no sufficient ground for proceeding he will have to dismiss the complaint. But if after considering statement on oath of the complainant, he is of the opinion that there is sufficient ground for proceeding, he cannot dismiss plaint.
6. As to what reasons will weigh with the Magistrate for recording his opinion have been given by the Apex Court in DN Bhattacharjee v. State of West Bengal (1972 Cri LJ 1037) (supra), cited by Mr. Bhattacharjee. Paragraph-7 of the said judgment of the Supreme Court is quoted hereinbelow :
It has to be remembered that an order of dismissal of a complaint under Section 203, Criminal Procedure Code, 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 de-barfed, 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 that 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, Criminal Procedure Code.
The provisions of Sections 249 and 256, Cr.P.C, relate to a later stage after the Magistrate decides to proceed further and issue process under Section 204, Cr.P.C and not to a stage before issue of such process by the Magistrate.
7. Since in the present case, by the impugned order, the Magistrate has dismissed the complaint only stating that the complainant was absent without any steps and did not produce any witness and has not recorded his opinion with reasons that there is no ground for proceeding further, the impugned order is contrary to the provisions of Sections 202 and 203, Cr.P.C and is liable to be set aside.
8. In the result, the impugned order dated 31 -12-98 of the learned Chief Judicial Magistrate, Kamrup, Guwahati, in case No. 1014(C)/96 is set aside and the Chief Judicial Magistrate is directed to pass fresh orders in accordance with law keeping in mind the observations made in this judgment.