C. Jagannadhacharyulu, J.C.
ORDER s This is a Criminal Revision Petition filed under Section 439 Cr.P.C. against the order of the Sessions Judge,. Tripura in Criminal Motion 156 of 1966, dated 1.9.66, to set aside the same and also the order of the Sub-Divisional Magistrate, Sadar, dated 18.8.66, in Criminal: Case No. 611 of 1966 filed under Section 395, I.P.C.
2. The petitioner filed criminal complaint against the respondents 1 to 5 in Criminal Case No. 611 of 1966, on 18.8.66, alleging that the respondents committed dacoity under Section 395 I.P.C. in the office of Tripura Apex Marketing Co-operative Society Ltd., Agartala. The learned S.D.M. examined the complainant on 18.8.66 and passed an order (under Section 202, Cr.P.C.) that the Circle Officer Shri N. Roy should enquire and report by 19.9.66. The petitioner-complainant attacked the correctness of this order under Section 202 Cr.P.C. by filing Criminal Motion 156 of 1966 before the Sessions Judge, Tripura, under Sections 435 and 438 Cr.P.C. The learned Sessions Judge held that the S.D.M. should have recorded his reasons under Section 202 Cr.P.C. for passing the order in question postponing the issue of process for compelling the attendance of the respondents, out that his failure to do so was only an irregularity, which is a curable defect under Section 537 Cr.P.C. He, therefore, rejected the revision petition. Hence the present Criminal Revision Petition by the complainant-petitioner to set aside the orders of the two Courts below.
3. The contention of the learned Counsel for the petitioner is that a perusal of Sections 200 and 202 Cr.P.C. shows that the learned S.D.M. violated the provisions of both the sections. Section 200 Cr.P.C. (as amended by the Cr.P.C. Amendment Act 26 of 1955) provides that the Magistrate shall, on taking cognizance of the offence on complaint, at once examine the complainant and the witnesses present, if any, upon oath. The present case does not fall under anyone of the categories covered by the provisions of Sub-sections (a), (aa), (b) and (c) of the proviso to Section 200, Cr.P.C. So, the learned S.D.M. should have not only examined the complainant but also his witnesses, who were present in the Court. But, the record does not show either whether the petitioner told the S.D.M. or that the S.D.M. ascertained from the petitioner about the presence of any other witnesses for him in the Court.
But, in the present case this objection was not taken by the petitioner's Counsel either before the S.D.M. or before the Sessions Judge or even in this Court. Only after the respondents' Counsel replied to the argument of the petitioner's Counsel, the latter urged this contention in his reply. The respondents' Counsel submitted that he was taken unawares by the new plea raised by the petitioner's Counsel in his reply arguments and that he was not prepared on that point. So, in the present case I do not propose to decide whether the question of law can be now raised or not and to rest my decision on this point.
4. The contention of the petitioner's learned Counsel that the S.D.M. violated the provisions of Section 202 Cr.P.C. by passing the order in question without recording his reasons in writing for postponing the issue of the processes to compel the attendance of the persons complained against is well founded. Section 202 Cr.P.C. lays down inter alia that on the receipt of a complaint of an offence by a Magistrate, of which he is authorised to take cognizance, he may, 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 may either inquire into the case himself or direct an inquiry or investigation by any Magistrate subordinate to him (if he is a Magistrate other than a Magistrate of the third class) or by a police-officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
But, under the proviso no such direction shall be made unless the complainant has been examined on oath under the provisions of Section 200 Cr.P.C. This naturally includes examination of the other witnesses present in the Court, which should also be done under Section 200 Cr.P.C. But, as already stated this question of non-examination of the other witnesses, if any, present in the Court is not being considered. The learned S.D.M. failed to record his reasons in writing for postponing the issue of processes to compel the attendance of the respondents. There is a decision of the Patna down that if a Magistrate has any doubt as High Court reported in Mukti Narayan Gir v. Emperor AIR 1940 Pat 97, which lays to the truth of the allegations in the petition of complaint as supported by the solemn affirmation of the petitioner, he ought to record an order to that effect in the order sheet, so that the superior Courts may be satisfied that the Magistrate had any justification whatsoever in refusing to issue summons to the accused as required by law. So, the provision in Section 202, Cr.P.C. that the Magistrate should record his reasons in writing for postponing the issue of process is a mandatory one.
5. The learned Counsel for the respondents, however, contended that some of the respondents are respectable officers, that it is unthinkable that they would have committed dacoity in the office in the day-time, that the office is situate near a police station that, therefore, the learned S.D.M. wanted to ascertain the truth of the complaint and passed the order in question asking the Circle Officer to make an enquiry and to report, that his failure to record reasons did not prejudice the petitioner and that it was merely an irregularity. The merits of the case cannot now be gone into at this state as a Writ Petition is said to be now pending in this Court regarding the same. So, no observation can be made in this petition at all regarding the merits of the case of either party.
The learned Counsel for the respondents relied on the observations at page 1251 of Sohoni's Code of Criminal Procedure, Vol. II, 16th Edition, where the learned Commentators state that the omission to record reasons amounts merely to an irregularity, if the procedure adopted by the Magistrate was legal and proper under the circumstances of the case and that unless it in fact occasions a failure of justice, it will be no ground for setting aside his order of discharge under Section 203 Cr.P.C. In Note 23 at page 1397 of the Code of Criminal Procedure, AIR Commentaries, Vol. I, 6th Edition, it is stated that if any irregularity in procedure under Section 202 Cr.P.G. has not resulted in miscarriage of justice, the High Court will not make any order in revision, which can result only in harassment to the parties and the waste of time. It is further stated that omission of the Magistrate to record reasons for postponing the issue of process is one such irregularity with which the High Court will not interfere, unless there is failure of justice.
In Ajoy Krishna Sarkar v. S.G. Bose. AIR 1929 Cal 176, it. was held that the failure of the Magistrate, to record reasons for postponing the issue of process would at most be an irregularity and would not justify the setting aside of an order for issue of a search warrant.
In Dharamdas Lilaram v. F.H. Pilcher AIR 1931 Sind 113, it was held that omission to record reasons for postponing the issue of process under Section 202 Cr.P.C. is merely an irregularity and not an illegality. It should be noted that the failure on the part of the Magistrate to record his reasons is said to be an irregularity which is curable under Section 537, Cr.P.C. But, the explanation to that Section lays down that in determining whether any error, omission or irregularity in any proceeding under the Cr.P.C. has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. In this case the petitioner took objection to the order in question immediately after it was passed. There is no meaning in stating that, though the learned S.D.M. committed irregularity in passing the order in question, the Court should wait and see whether ultimately the order which might be passed by the learned S.D.M. after the latter peruses the report of the Circle Officer, is vitiated by the irregularity in question and whether this irregularity has occasioned a failure of justice.
As rightly pointed out in Sri Ram Varma v. State : AIR1956All466 (FB), Section 537 Cr.P.C. does not contemplate a case where the legality of a certain procedure about to be adopted, but not yet adopted, is brought into prominence in the trial Court and the Court is called upon to decide about its legality. It was held in that case that in such a case the Court cannot adopt a wrong procedure in the hope that ultimately it would be condoned under Section 537, Cr.P.C. Inasmuch as immediate objection was taken by the complainant to the procedure adopted by the learned S.D.M., the order passed by him cannot be stistain-ed on the ground that the learned Section D. M. committed only an irregularity in passing ;the order, which may not vitiate his subsequent orders. Section 202 Cr.P.C. contemplates that the superior Courts must be in a position to find out whether the discretion in postponing issue of process has been properly exercised by the Magistrate or not. Now, there is nothing on record lo show why the Magistrate postponed the issue of processes and the reasons which compelled him to do so. The superior Courts should not be left to imagine what possibly could be his reasons. So, the order ]in question is clearly erroneous and is liable to be set aside.
6. In the result, the revision petition is allowed and the orders of both the Courts below are set aside. The District Magistrate should forward the case in question to some other S.D.M. for disposal according to law.