JUDGMENT
K.P. Mohapatra, J.
1.The order passed by the learned Judicial Magistrate, R. Udayagiri dismissing the petitioner’s complaint under Section 203 of the Code of Criminal Procedure (‘Code’ for short) is assailed in this revision.
2. The case of the petitioner is stated in brief. On 1.2.1980 the complainant purchased 2 bags of Jinjili and one bag of mustard at Chudangapur weekly market. He kept the seeds in 6 gunny bags and came to the road side at about 11 a. m. and was waiting for a bus to proceed to his village. At that time all the opposite parties arrived at the place. Opposite party No. 1. an Inspector of Weights and Measure gave him a slap on the left cheek and snatched away a bag from the petitioner which contained a sum of Rs. 1,059/- and handed over the bag to opposite party No. 2 who brought out the aforesaid amount and kept the same in his shirt pocket. Opposite parties 3, 5, 7, 9, 10 and 11 forcibly removed the 6 bags containing Jinjili and mustard. The petitioner raised hue and cry. The villagers of Chudangapur came running, whereupon, the opposite parties threw the bags and ran away. Opposite party Mo. 2 also returned the sum of Rs. 1,059/- to the petitioner. According to him the opposite parties committed an offance under Section 395 of the Indian Penal Code (I. P. C. for short).
3. On the date (6-2-1980) the complaint was filed, the learned judicial Magistrate recorded the initial statement of the petitioner under Section 202 of the Code. On that day, the petitioner through his advocates filed a petition praying for adjournment to adduce further evidence The petition was allowed and the case was adjourned to 13.2.1980 for enquiry under Section 202 of the Code. On 13.2.1980, the statements of three witnesses named in the complaint petition were recorded and the enquiry was closed. On 26.2.1980, the impugned order was passed dismissing the complaint petition under Section 203 of the Code on the grounds that the case of the petitioner was improbable, incredible and did not inspire confidence and that there were no sufficient grounds to proceed against the opposite parties.
4. Mr. B.N. Misra, learned counsel appearing for the petitioner vehemently urged the learned Judicial Magistrate acted in excess of his jurisdiction by entering into a detailed discussion of the statements of the prosecution witnesses which was not at all permissible in an enquiry under Section 202 of the Code, All that was required to do at the Mage was to find out it the petitioner had a prima facie case and if there were sufficient grounds for proceeding against all or any of the opposite parties. Therefore, the impugned order is liable to be set aside. Mr. C.A. Rao, learned counsel for the opposite parties, on the other hand, urged that because of non-compliance of the proviso to Section 202(2) of the Code, the complaint petition was rightly dismissed according to law. The points raised, required careful examination.
5. The scope of an enquiry under Section 202 of the Code is no longer res integr. In A. I. R. 1976 S. C. 1947, Smt. Nagwwa v. Veeranna Shivalingappa Konjalgi and others, reliance was placed on two earlier. decisions reported in A. I. R. 1963 S. C. 1030, Chandra Deo Singh v. Prakash Chandra Bosealia : Chabi Bose and another and A. I. R. 1960 S. C 1113, Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar and another and it was held as follows : “It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint -(i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out and (Hi) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In fact it is well settled that in proceedings under Section 203 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.”
It was further examined as to whether in an inquiry under Section 202 of the Code, it was open to the Judicial Magistrate to determine the truth or falsity of the complaint. It was held as follows:
“…It is true that in coming to a decision as to whether a . process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court or even this Court, to substitute its own discretion for that of Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately and in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminate into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against accused or the complaint does not disclose the essential ingredients of an offence which is alleged against accused:
(2) where the allegations made in the complaint are potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused :
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings”.
(Also See 57 (1984) C. L. T 257, (Samir Chandra Guha and another v. K. Pradhan another and A.l.R. 1980 S. C. 1780, Kewal Krishna v. Suraj Bhan and another).
6. If the tests laid down in the case of Smt. Nagwwa (supra) are applied to the facts of this case, it will appear that according to the allegations made by the petitioner, the dacoity was committed by the opposite parties in broad day light by the side of the public road near the market place of Chudangapur, where, there must have been a vast congregation. According to the further allegations, the opposite parties did not take away the cash or the goods. Most of the opposite parties were officers of the Weights and Measure Department posted at parlakhemundi and the Tribal Development Co-operative Society at R. Udayagiri. it was not at all likely that these public officers ventured to commit dacoity at such place and time in full view of a large number of people. The very case set up by the petitioner appears potently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there were sufficient grounds for proceeding against the opposite parties. For the aforesaid reasons the impugned order of dismissal of the complaint petition under Section 203 of the Code cannot be reversed.
7. As referred to above, during the inquiry under Section 202 of the Code only three witnesses named in the complaint petition were examined and though the petitioner himself was a witness for proof of his own case, he did not examined himself as a witness at that stage. The offence complained of i.e. dacoity was triable exclusively by the Court of Session according to the proviso to Section 202(2) of the Code. Interpreting the proviso, a Division Bench of this Court in 47(1979) C. L. T. 244, Gokula Nanda Mohanty and others v. Muralidhar Mallik held that in the inquiry, which is bound to be undertaken, the Judicial Magistrate has to call upon the complainant to produce all his witnesses and has to examine them on oath. Therefore, the petitioner who had complained of an offence of dacoity exclusively triable by the Court of Session and who was called upon by the learned Judicial Magistrate to participate in the inquiry under Section 202 of the Code should not only have produced and examined the witnesses named in the complaint petition, but should have also examined himself as a witness, because, he was the principal witness and the alleged victim of the dacoity. As he did not examine himself in the inquiry under Section 202(2) of the Code, on this legal ground alone the complaint petition was liable to be dismissed.
8. Viewed from either angle, the revision is without merit and is hereby dismissed.