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WHETHER REJECTION OR DISMISSAL ?

7. There is yet another aspect on which there appears to be some grey area that may require a little bit of elucidation. The Special Judge had once dismissed the complaint as per Annexure VI order dated 6-12-2006 even before taking cognizance of the offences and even before recording the sworn statement of the complainant. The said dismissal at the pre- cognizance stage was presumably under the misconception that Sec. 203 Cr.P.C. clothes a Magistrate to do so. It is true that barring Sec. 204 (1) Cr.P.C., Sec. 203 Cr.P.C. appears to be the only enabling provision which empowers a Magistrate to dismiss a complaint. A dismissal of the complaint under Sec. 204 (4) Cr.P.C. for failure to pay process is not a dismissal on merits. But a closer reading of Sec. 203 Cr.P.C. will reveal that dismissal of a complaint can be done only at the post - cognizance stage. Section 203 Cr.P.C. reads as follows:-

8. There is still another grey area over which pointed attention does not appear to have been made by Courts. Is it permissible for the Magistrate to dismiss the complaint under Sec. 203 Cr.P.C. if after recording the sworn statements of the complainant and the witnesses present, the Magistrate is of opinion that there is no sufficient ground for proceeding ?. Eventhough a careful reading of Section 203 Cr.P.C. extracted hereinabove will indicate that dismissal of a complaint can be done only after considering the result of enquiry or investigation under Sec. 202 Cr.P.C. as well, decisions are legion to suggest that a complaint can be dismissed if the Magistrate, after examination of the complainant and his witnesses under Sec. 200 Cr.P.C. comes to the conclusion that there is no sufficient ground for proceeding. The common yardstick for issuing process under Sec. 204 Cr.P.C. and for dismissing a complaint under Sec. 203 Cr.P.C. is the existence or otherwise of "sufficient ground for proceeding". Therefore, when the Magistrate, after examining the complainant and his witnesses present,under Sec. 200 Cr.P.C. decides to postpone the issue of process under Sec. 204 Cr.P.C. and embarks upon an enquiry by himself or directs an investigation under Sec. 202 (1) Cr.P.C., he can then be presumed to have formed an opinion that there is no "sufficient ground for proceeding". This is because, the only criterion for issuing process under Section 204 Cr.P.C. is also the existence of "sufficient ground for proceeding". In other words, if after recording the sworn statements of the complainant and his witnesses under Section 200 Cr.P.C. the Magistrate is of opinion that there is no "sufficient ground for proceeding", then he will have to postpone the issue of process and conduct an enquiry or direct an investigation under Section 202 (1) Cr.P.C. He cannot, at that stage, dismiss the complaint under Section 203 Cr.P.C. because dismissal of the complaint can be done only after the conclusion of enquiry or investigation under Sec. 202 Cr.P.C. It is pertinent to remember that the purpose of enquiry and/or investigation under Section 202 Cr.P.C. is also to help the Magistrate to decide whether there is sufficient ground for proceeding further. (See Mohd Yousuf v. Afaq Jahan and Another - AIR 2006 SC 705 = 2006 (1) KLT 939; Dilwar Singh v. State of Delhi - AIR 2007 SC 3234 and Rony v. State of Kerala - 2000 (1) KLT 494 (SC). After the stage of Sec. 200 Cr.P.C. and before deciding to postpone the issue of process, if, in a rare case the Magistrate is of opinion that no offence has been made out from the statements of the complainant and the witnesses recorded under Sec. 200 Cr.P.C., then probably, the Magistrate can reject the complaint. If the Magistrate wants to dismiss the complaint, then he may have to necessarily proceed to the stage of Sec. 202 Cr.P.C. before dismissing the complaint. To put it differently, if the averments in the complaint do not spell out any offence, then the Magistrate can only reject the complaint at the threshold. Likewise, if after examination under Sec. 200 Cr.P.C. the Magistrate is of opinion that no offence at all has been made out, then also the only course open to him to avoid proceeding under Sec. 202 Cr.P.C. is by rejecting the complaint. The following observations of the Apex Court in paragraph 10 of CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. - AIR 2005 SC 4284 seem to fortify the above conclusion:-

Rejection of Complaint At this stage also it is doubtful whether the Magistrate can dismiss the complaint because a dismissal of the complaint under Sec. 203 Cr.P.C. (which appears to be the only enabling provision for dismissal of a complaint on the merits) can only be after considering the result of enquiry or investigation under Sec. 202 Cr.P.C. as well. Hence, after the stage of examination under Sec.

Dismissal of complaint after Sec. 202 enquiry / investigation

5) If after considering the statements on oath of the complainant and the witnesses if any and the result of the enquiry or 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 then dismiss the complaint after briefly recording his reasons for doing so. (See Sec. 203 Cr.P.C.).