Kerala High Court
Rev. Fr. Abraham vs V.M. Thomas And Ors. on 9 December, 1988
Equivalent citations: 1989CRILJ705
ORDER S. Padmanabhan, J.
1. A Magistrate, taking cognizance of an offence upon receiving a complaint of facts, which constitute such an offence, from a private individual under Section 190(l)(a) of Cr. P.C., is bound to comply with the provisions of Section 200 by examining the complainant and the witnesses present, if any. If after considering those statements he is satisfied that there is no sufficient ground for proceeding, he can dismiss the complaint under Section 203. On the other hand, if his satisfaction is that there is sufficient ground for proceeding, he can issue process under Section 204, Except in complaints involving offences exclusively triable by the Court of Session, a preliminary enquiry under Section 202 is only optional according to the discretion of the Magistrate. He need have such an enquiry only if even after complying with Section 200 some doubt lingers in his mind as to whether he has to proceed or not.
2. To bring an offender to justice is the right of every one subject to the restrictions imposed by law in public interest. So also, it is the right of anyone that he is hot unnecessarily harassed by a false or frivolous prosecution. Courts have a great responsibility in this respect. Provisions like Sections 200, 202 and 203 were introduced in the Code to act as a compromise between these two rights. Purpose is avoidance of the trouble and agony of a criminal trial when it is not necessary. In exercising this check, Magistrate will have to act judicially. When process is issued under Section 204 on the required satisfaction, it is not necessary to pass a formal order. The mere Issue of process will be a visible manifestation ,of the satisfaction. But when complaint is dismissed under Section 203, it must be by a speaking order, briefly recording the reasons for so doing.
3. When the Magistrate dismisses the complaint without giving reasons as required under Section 203, the error is of a kind which goes into the root of the matter. Giving reasons is a statutory prerequisite for making an order of dismissal under Section 203. Absence of reasons may even be capable of making the order a nullity in given cases. Even assuming, as held in Willie (William) Slaney v. State of Madbya Pradesh , that the omission to state the reasons is only a curable irregularity depending upon the facts of cases and nature of omission, the question of prejudice is another aspect that has to be considered. The order is a judicial order which is justiciable also. Even if it is not justiciable, a judicial order must be reasoned. The complainant is entitled to know why and for what reasons his complaint was dismissed. Then only he will be able to consider whether an approach to the revisional court will be of use. His right to move the revisional court will otherwise be seriously affected. When he takes the matter before the revisional court, his task becomes more onerous, particularly in view of the limited scope of the supervisory revisional jurisdiction in exercise of which the discretion by the Magistrate on his satisfaction may not be lightly interfered. That is because what is required is the satisfaction of the Magistrate alone and nobody else. The revisional court also must know what are the reasons which prevailed with the Magistrate in order to decide whether interference will be justified or not or interference is necessary in the ends of justice (Chandra Deo Singh v. Prokash Chandra Bose ).
4. Reasons for dismissal will not include any and every reason. Reasons must be judicially sound and acceptable. Dismissal at that stage can be made only when the reasons disclose that the proceedings cannot terminate successfully in a conviction. The Magistrate is not debarred from going into the merits of the evidence produced by the complainant. But the object of the consideration of the merits of the case, at that stage, could only be in order to determine whether there are sufficient grounds for proceeding further or not. Prima facie grounds alone are being considered. Consideration is not whether the accused is guilty or innocent. The mere existence of some grounds, which would be material for deciding whether the accused should be convicted or acquitted, does not generally indicate that the case must necessarily fail. These are matters to be proved at the trial. Such grounds may only indicate the need to proceed further in order to discover the truth after a full and proper trial. Order of dismissal of the complaint cannot be converted into a full-fledged order of acquittal or discharge. If a bare perusal of the complaint or the evidence shows that essential ingredients of the offence alleged are absent or that the dispute is of a civil nature or that there are patent absurdities in the evidence which would make the trial a waste of time, the complaint could be properly dismissed under Section 203. What the Magistrate has to consider at the stage of Issue of process is not, the correctness or probability or improbability of the individual items of evidence on disputable grounds, but the existence or otherwise of a prima facie case on the assumption that what is stated in evidence can be true, unless the prosecution allegations are so fantastic or they cannot be reasonably held to be true (Debendra Nath Bhattacharyya v. State of West Bengal ).
5. The impugned order of dismissal of the complaint under Section 203 on the ground that it is bad for want of .sanction under Section 197 of the Cr. P.C. does not appear to be correct. There is no dispute regarding the fact that none of the accused will come under the category of "public servant not removable from his office save by or with the sanction of the Government". They are admittedly removable by the head of the department. The only other reasons mentioned in the impugned order dismissing the complaint are:
(a) no overt acts are alleged against accused 2 and 3; and
(b) after considering the statement of complainant and witnesses, I am of opinion that there is no sufficient ground for proceeding against any of the accused in the complaint.
The first ground may be sufficient so far as accused 2 and 3 are individually concerned. Even then, Section 34 is there. The second ground is not sufficient against anybody. The Magistrate was bound to assign the reason or reasons which gave him the satisfaction. What is required is not his arbitrary or unchallengeable satisfaction. What is necessary is a judicial and reasoned satisfaction which is justiciable. In spite of the omission of the Magistrate, I am not inclined to interfere with the order on other grounds in order to avoid the possible injury to public interest.
6. The three respondents are respectively Circle Inspector, Sub-Inspector and Assistant Sub-Inspector of Police discharging their official functions in making a preventive arrest of the petitioner under Section 151 of the Code of Criminal Procedure. Petitioner is a priest belonging to the Catholic Section of the Malankara Jacobite Syrian Church. The offences alleged are those under Sections 295,295A, 296, 323 and 341 read with Section 34 of the Indian Penal Code. Fight is between the two traditional rivals. Venue is the Marthoma Church, Mulanthuruthi. In violation of the orders of the civil court regarding conduct of the prayer by either side in some civil litigation between them, the petitioner entered the sanctum sanctorum in his official robe to offer prayers. In order to avoid a law and order situation involving innumerable followers of either side waiting outside, the respondents arrested the petitioner and he was taken to the police station. A case was registered and he was produced before the Magistrate. In his sworn statement, he admitted these facts and said that when asked by the Magistrate on his production he had no complaint against the respondents. He produced two witnesses who were also examined. This is, therefore, a case in which the allegations and the evidence show that the prosecution version is so fantastic that it cannot be reasonably held to be true. On the other hand, proceeding with the case in these circumstances brought put will amount to abuse of the process of Court and harassment to the respondents who were only discharging their official duties. Anyhow, I would like to impress upon the Magistrate for his future guidance that an order of dismissal of complaint under Section 203, though to be brief, must be well reasoned and self-contained. The revision filed by the complainant against the dismissal of his private complaint is without merits for the above reason.
Criminal revision petition is dismissed.