The Magistrate erred in dismissing the complaint and releasing the vehicle to the respondent without considering the statements of the complainant and the witness.

1. Petitioner is the registered owner of the Motor Vehicle bearing Registration mark and No. JKD-2581. The respondent is alleged to be the Driver of this vehicle, who drove the vehicle, who drove to Kargil unauthorisely by deception. Petitioner filed a written complaint before Chief Judicial Magistrate Srinagar on 21.8.96 with incriminating allegation of deception and theft of the vehicle against in the accused respondent. The Judicial Magistrate (City Munsiff Srinagar) to whose file the complaint was transferred, after recording the statement of complainant and the witness, referred the matter to concerned Police under Section 202 Cr. P.C. for inquiry. During the enquiry, the vehicle was seized by the police. The Judicial Magistrate (Sub-Registrar) Srinagar released the vehicle on 26.09.1996 to the petitioner on superdnama.

2. On completion of inquiry under section 202 Cr. P.C. the report was presented before the Judicial Magistrate (City Munsiff) Srinagar. The Magistrate dismissed the complaint and released the vehicle to accused. This order of 16-11-1996 was challenged in revision before the Court of 1st Addl. District and Sessions Judge, Srinagar. The 1st. Addl. District and Sessions Judge Sringar found the order of dismissal of complaint and disposal of the truck beyond pale of law and has come to the conclusion that both orders are illegal. The Court of reference has recommended that the order regarding dismissal of complaint and disposal of property may be quashed. The reference with reasoned order alongwith the entire record is before the Court.

3. The respondent is not appearing despite opportunities. In the over all circumstances of the case, the presence of respondent is dispensed with.

4. Heard learned counsel for the petitioner. Complaint under section 379/420 R.P.C was transferred to Judicial Magistrate (City Munsiff) Srinagar under section 192 by Chief Judicial Magistrate, Srinagar. The Judicial Magistrate (City Munisiff) Srinagar, after recording the summary of the statements of the complainant and his one witness, directed an enquiry to be made by SHO Police Station Khanyar for the purpose of ascertaining truth or falsehood of the complaint in terms of Section 202 Cr. P.C.

5. The S.H.O Police Station, Khanyar submitted the report alongwith connected papers before the Court of Judicial Magistrate (City Munsiff) Srinagar. The Magistrate on receipt of the report passed an order on 16-1-1996 dismissing the complaint and releasing the vehicle JKD-2581 to the person from whom it was seized (to the respondent). Perusal of this order, on its plain language reveals that the complaint has been dismissed only on the basis of the enquiry report received from the S.H.O. Police Station Khanyar and while dismissing the complaint, the Magistrate has not taken into account, considered and applied his mind to the statements of complainant and the witness which he had recorded. Obviously, the Magistrate has thoroughly infracted the provisions of Section 203 Cr.P.C. which provides that the Magistrate may dismiss the complaint if on consideration of the statement on oath of the complainant and the witness (witnesses) and the result of the enquiry under Section 202 Cr.P.C., in the judgment of the Magistrate, no sufficient ground for proceeding is made out. In fact it has to be an order, may be brief, but informed of the reasons. The Magistrate has breached the provisions of Section 203 of the Cr.P.C by wholly ignoring and side tracking the statement of the complainant and the statement of the witness, even when the order is read between the lines, it is found that the reasons for the order are perfunctory and not as per legal and factual requirements of the case. The complainants statement discloses incriminating allegations which the Magistrate was under a legal duty to weigh and consider alongwith the report of the SHO before the Magistrate reached a conclusion whether to take cognizance of the case or to dismiss it. By ignoring

Click Here to Read the rest of this document