The central legal point established in the judgment is the duty of the Magistrate to actively examine the complainant and witnesses under Section 200 Cr.P.C., ascertain sufficient grounds to proceed, and prevent abuse of the legal process.

JUDGMENT: - How is a Magistrate under Section 200 Cr.P.C. "to examine upon oath the complainant and the witnesses present"? What is the role of the learned Magistrate at that stage of the proceedings? Is the Magistrate to function in an activist and dynamic manner to elicit the relevant information from the complainant and his witnesses? Is the Magistrate only to record what the complainant and his witnesses state on oath? These are the interesting questions that arise for consideration in this case.

2. The petitioner went before the learned Magistrate with a complaint under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. The crime relates to a cheque for Rs.10,000/ - . The complainant was put in the witness stand and his statement was recorded. Paragraphs 2 and 3 of the impugned order reveal what precisely had happened. I extract he same below: -

"2. The sworn statement of the complainant was recorded on 8 - 1 - 96. He has stated that on 20 - 8 - 95 the respondent borrowed an amount of Rs.10,000/ - from him. Thereafter on 21 - 9 - 95 the respondent gave a cheque to the complainant for Rs.10,000/ - which when presented was dishonoured for insufficiency of funds. Complainant had only stated that he had thereafter handed over the cheque to the Advocate. The sworn statement was read over to the witness in open Court by me twice. The complainant refused to state anything further.

3. On perusal of the sworn statement of the complainant, I am satisfied that the complainant does not have a case that he issued a lawyer notice within the stipulated time and that the respondent failed to pay the amount afterwards. Under these circumstances, I am of opinion that no offence under Sec.138 of Negotiable Instruments Act and Sec.420 Indian Penal Code is made out from the sworn statement of the complainant. The complaint is therefore dismissed under Section 203 Cr.P.C."

(Emphasis supplied)

3. The learned counsel for the petitioner submits that there is total lack of appreciation of the jurisdiction of the learned Magistrate. The learned Magistrate reduced himself to the position of a recording machine little realising the dynamic role which the Magistrate has to play at the stage of Section 200 Cr.P.C. In doing so, the learned Magistrate abdicated the real function of the Magistrate at that stage and acted only as a person testing the memory of the complainant. In these circumstances, the impugned order may be set aside and the learned Magistrate may be directed to consider the matter afresh. This is the short prayer.

4. As the dismissal is at the stage of Section 203 Cr.P.C. and the accused has no role to play at this stage, the learned Judge who admitted the revision petition dispensed with the requirement of notice to the accused. This revision petition filed in 1996 remains in the file and has not been disposed of yet.

5. It has often been repeated that at the stage of Section 200 Cr.P.C., the Magistrate is not to function as a trial Court. It is held in Kewal Krishnan Vs. Suraj Bhan and another (1980 (Supp) Supreme Court Cases 499, para 9) thus:

"10. In the instant case, there was prima facie evidence against Suraj Bhan accused which required to be weighed and appreciated by the Court of Session. At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Session, all that the magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 202, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is 'sufficient ground for proceeding' against the accused.

At this stage, the magistrate is not to weigh the evidence meticulously as if he were the trial Court

Click Here to Read the rest of this document