FATIMABEN WD O ABDUL RASAK ABDUL GANI Vs. FARUQ SAMSUDDIN
HIGH COURT OF GUJARAT
FATIMABEN WD/O ABDUL RASAK ABDUL GANI
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(1.) The learned Magistrate who received the complaint verified it by recording the statement of the applicant on oath and thereafter decided make inquiry by himself under sec. 202 of the Code. After making inqu- iry by examining three witnesses on behalf of the applicant the learned Magistrate dismissed the complaint holding that there is no evidence worth issuing the process and therefore the complaint was dismissed under sec. 203 of the Code. This is thinly order passed by the learned Magistrate.
(2.) But the grievance that the order of the learned Magistrate is cryptic is quite justified. It is true that there is some difference in the wording of sec. 203 of the old Code and the new Code. Sec. 203 of the old Code reads:
"203 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 inquiry (if any) under sec. 202 there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing". Sec. 203 of the new Code reads: "203 If after considering the statements on oath (if any) of the complaint and of the witnesses and the result of the inquiry or investigation (if any) under sec. 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". Now on reading of sec. 203 of the old Code as well as of the new Code it appears that in the new Code same mornings are maintained except that the initial words The Magistrate before when a complaint is made or to whom it has been transferred are committed and instead of may the Magistrate is ordained to dismiss the complaint by the word shall. Further in the new Code instead of the gold judgment word opinion is mentioned. That is If the Magistrate is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint. So there is some distinction in the words judgment and opinion. But one thing cannot be forgotten that this opinion also is of a judicial Officer. But the requirement of recording the reasons briefly by the learned Magistrate for so doing is there in the new Code also. So even though the judgments cited by Mr. A. D. Shah for the applicant before me are under the old Code the principles propounded by those rulings give the spirit of the section and the requirement of passing such an order.
(3.) In Nathusing Vridhsing v. Vasantlal R. Shah 8 Gujarat Law Repo- rter 496 it is observed:
"The provisions of sec. 203 of the Criminal Procedure Code are mandatory and consequently if no reasons are given for dismissal of complaint that order would be one in contravention of that provision. Such a breach of the provision renders the order void and ineffective. It is not curable under sec. 537 of the Criminal Proce- dure Code". Therein also the learned Magistrate passed the following order:
"Complainant is present. I have gone through papers of investigation. I dismiss complaint under sec. 203 Cr. P. C.";
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