Decided on April 29,1963

Jagadish Chandra Basack Appellant
Gopal Chandra and Ors. Respondents

Referred Judgements :-


Cited Judgements :-



S.K.NIYOGI, J. - (1.)THIS Rule is directed against the order of the learned Additional Chief Presidency Magistrate Calcutta, dismissing a complaint under Section 203 of the Code of Criminal Procedure. It appears that the petition of complaint was filed in the Court of the Additional Chief Presidency Magistrate by the present petitioner on the allegation that he was a transferee of a lease in respect of the rear -most block of premises No. 13 Dudhu Ostagar Lane Calcutta, and that vacant possession was given to him by Rukmini Kanta Chandra on 2nd January, 1962. After such possession, the petitioner put padlock on the doors of the rooms and also engaged some labourers to repair the building, On 8th January, 1962, after the masons had left the opposite parties unlawfully trespassed into the first floor of the premises, broke open the padlocks put on the rooms, threw away the building materials and stole the implements of the masons. The petitioner lodged a diary in the Amherst Street Police Station and subsequently filed a petition of complaint making those allegations. On receipt of the petition of complaint the learned Additional Chief Presidency Magistrate examined the complainant and his witness Rukmini Kanta Chandra. on 11th January and passed the following order: Examined complainant and his witness I, Rukmini Kanta Chanda. No other witness present. 'F' town police to enquire and report by 27 -1 -62. to 29 -1 -62 for orders. Then again on 29th January 1962, the Magistrate passed the following order: Perused report. I am not satisfied that a prima facie case of criminal trespass is made out and it appears the trespass, if any, is of a civil nature. In the circumstances, I decline to issue process. Complaint be dismissed Under Section 203, Cri. P. C.
(2.)MR . Fanindra Mohan Sanyal, appearing for the peitioner, contends that the above orders passed by the learned Magistrate did not conform to the requirements of law. It has been argued that Under Section 202, Cri. P. C. the Magistrate on receipt of a complaint 'if he thinks fit for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either enquire into the case himself or direct an enquiry or investigation to be made by any Magistrate subordinate to him or by a Police Officer etc.' Mr. Sanyal's argument has been that in the order dated 11th January, 1962, no such reasons have been recorded. His contention is that the said provision of law relating to recording of reasons was imperative and he relies in support of his said contention on a decision by a Division Bench of this Court in 21 Cal WN 127 : AIR 1917 Cal 462, Balai Lal Mukherjee v. Pasupati Chatterjee. In that case the Division Bench took a similar view in the matter and relied in this connection on. another decision of this Court, namely, ILR 14 Cal 141, Baidayanath Singh v. Muspratt. In that particular case the learned Judge observed: It is clear to us that under Section 202 if he distrusts the statement of the complainant, he must record his reasons. In any case, he is bound to record his reasons for distrusting the complainant. That appears to us to be quite reasonable.' In the case reported in 21 CWN 127 : AIR 1917 Cal 462 their Lordships also followed that ruling and Sanderson, C. J. who delivered the judgment, observed: I not only follow that ruling, but I think it is a perfectly right and reasonable ruling, and I do not see any reason why the Magistrate should not follow that which is laid down by the statute and by the decisions of this Court.
(3.)THE second contention of Mr. Sanyal has been that in dismissing the complaint under Section 203 of the Code of Criminal Procedure the learned Magistrate failed to consider the petition of complaint or the evidence of different witnesses examined by the enquiring officer or by the learned Magistrate himself when receiving the complaint.
The learned Advocate for the opposite party has urged that the Magistrate did consider all the materials available to him in making up his mind in this respect. But the order in question does not at least show that the learned Magistrate did apply his mind to all the evidence as well as the other materials on record before dismissing the complaint under Section 203 of the Code of Criminal Procedure. This order was bad (1) in that there was no independent consideration of the enquiring officer's report and (2) the learned Magistrate did not even attempt to advert to the statements of the witnesses as recorded in the judicial enquiry.

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