(1) This revision application is directed against an order passed on 30-10-1964 by Mr. C. H. Vasavada, City Magistrate, Seventh Court, Ahmedabad, whereby the complaint given by the petitioner against opponent No. 1 in respect of offences under Sections 420, 406, 465 and 468 read with Section 34 of the Indian Penal Code came to be dismissed under Section 203 of the Criminal Procedure Code.

(2) The complaint was filed on 26-8-1964 making various allegations against the oppoments in respect of their having committed offences under Sections 406, 465, 468 and 420 read with Section 34 of the Indian Penal Code. The learned Magistrate passed an order on that very day for having an inquiry made by the Inspector of Police, Karanj Police Station, under Section 202 of the Criminal Procedure Code. He was directed to expeditiously inquire in the matter and attach the papers alleged to have been taken from the complainant. The report was called for within a fortnight from the date of the order. Then on 3-10-1964, another order is passed by the learned Magistrate whereby notice to the complainant as to why his complaint should not be dismissed under Section 303 of the Criminal Procedure Code was issued. Similarly, he directed a notice to issue to show cause, as to why process should be issued, against accused No. 1 in the case. Then on 30-10-1964 it appears that the complainant and his pleader were present. After hearing the learned advocate appearing for the complainant, he passed the following order:--

"Complaint is present. I have gone through papers of investigation. I dismiss complaint under Section 203, Cr. P. C."

Aggrieved by that order passed on 30-10-1964 by Mr. C. H. Vasavada, City Magistrate, Seventh Court, Ahmedabad the complaint has come in revision.

(3) The contention made out by Mr. Divetia, the learned advocate for the petitioner, is that the learned Magistrate has not complied with the provisions contained in Section 203 of the Civil Procedure Code in so far as he has not recorded reasons for dismissing the complaint under Section 203 of the Code. According to him, therefore, the order is illegal and a nullity and in no way curable under Section 537 of the Civil Procedure Code . Section 203 of the Civil Procedure Code provides as under:-

"The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint if, after considering the statement of oath (if any) of the complaint and the witnesses and the result of the investigation or inquiry (if any) under Section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing"

(4) Now, apart from authority, it appears plain from Section 203 of the Code itself that if in his judgment there appears no ground for proceeding with the complaint, he is entitled to dismiss the complaint, he is entitled to dismiss the complaint, but while doing so, as provided therein, he "shall" briefly record his reasons for so doing. The use of the word "Shall" contemplates mandatory character of the provision and consequently if no reasons are given for dismissal of the complaint, that order would be one in contravention of that provision . The order becomes illegal and not irregular, so as to say that it is curable under Section 537 of the Civil Procedure Code . I was referred to a case of Ratansha Kavasji v. Keki Behramsha, AIR 1945 Bom 147, where the Division Bench of the Bombay High Court held that the provision of section 203 are imperative, and failure to record reasons for dismissing a complaint would be disobedience of the law and not a mere irregularity. In order to comply with the mandatory provision of section 203, the Magistrate must make it apparent in his order that he has no omitted to apply his mind to the facts before he made the order dismissing a complaint. Another case referred to by Mr. Divetia is the one of Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430, where the Supreme Court has laid down that where the Magistrate has dismissed the complaint without giving reasons as required by Section 203, Civil Procedure Code , the error is of a kind which goes to the root of the matter. It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint under Section 203, Civil Procedure Code, and absence of the reasons would make the order a nullity. Their Lordships of the Supreme Court have further observed that even assuming, however, that the rule laid down in AIR 1956 SC 116 applies to such a case, prejudice is writ large on the face of the 'order'. The complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisional Court and where he takes a matter to the revisional Court renders his task before that Court difficult, particularly in view of the limited scope of the provisions of Ss. 438 and 439, Code of Criminal Procedure. The order passed by the learned Magistrate on the face of it discloses no reasons whatever for passing the order of dismissal of the complaint under Section 203 of Civil Procedure Code. All that he states is that he has gone through papers of investigation. As to what those papers disclose, he makes no reference whatever. As to whether they, in his view, disclose no ground for proceeding further, he is completely silent. At any rate, the order passed by him under Section 203 does not disclose any reasons even in brief which are required to be stated in the order as provided under Section 203 of the Civil Procedure Code. Absence of any such reasons goes to the root of the matter as observed in the Supreme Court case referred to hereabove and that order is, therefore, a nullity.

(5) It was, however, pointed out by Mr. Patel, the learned advocate for the opponent No. 2 that the Court of the City Magistrate in the City of Ahmedabad has all the powers and jurisdiction of the Presidency Magistrate under the Civil Procedure Code as contained in Clause (3) of Section 14 of the Gujarat Act 19 of 1961, and since the Presidency Magistrate is not bound to record reasons while passing any such order, the order passed by the City Magistrate of Ahmedabad cannot be called illegal. According to him, this Court should have called for the grounds of his decision or order while calling for the record from that Court under Section 435, as contemplated under Section 441 of the Civil Procedure Code. Now, his first premise appears to have been based on the assumption that the Presidency Magistrate is only required to give a brief statement of reasons for passing an order of conviction as contemplated under Section 370 of the Civil Procedure Code and that since there is no other provision which requires him to give any reasons for passing any such order of dismissal of the complaint, any order passed by him under Section 203 of the Code would be a valid order. That presumption is completely wrong for the simple reasons that there is a clear provision contained in Section 203 of the Civil Procedure Code which refers to "any Magistrate", whether he be the City Magistrate as in the City of Ahmedabad, or the Presidency Magistrate as he is called in the City of Bombay, or any Judicial Magistrate in the State. The Presidency Magistrate is not excluded from the operation of that provision which makes it inoperative on any Magistrate to record his reasons in brief while passing an order under Section 203 of the Code. It is, therefore, clear that when Section 203 provides that while passing an order of dismissal of any complaint under that section, the Magistrate shall record his reasons in brief, he is bound to do so and not having done so would amount to an illegality, and not an irregularity curable under Section 537 of the Civil Procedure Code as suggested by Mr. Patel. Besides, it is not that a Presidency Magistrate or the City Magistrate of Ahmedabad, has not to give reasons for an order of conviction. All that Sections 370 says is that he has to give a brief statement of reasons for passing such an order. In the same way, he has to give reasons in brief for an order of acquittal or even discharge. They may be brief, but there must appear reasons for the order passed by him, so that one is assured of his having applied his mind to the evidence, etc., before him. Coming to Section 441 of the Civil Procedure Code, all that it says is that when the record of any proceeding of any Presidency Magistrate is called for by the High Court under Section 435, the Magistrate may submit with the record a statement setting forth the grounds of his decision or order and any facts which he thinks material to the issue; and the Court shall consider such statement before overruling or setting aside the said decision or order. Now, here also Mr. Patel is not right when he says that the learned Magistrate may submit grounds of his decision or order when record is called for by the High Court. This provision of law provides for a brief summary of facts and grounds of his decision when record is called under Section 435 of the Civil Procedure Code. That does not mean that he can avoid giving reasons for his decision, and if the case goes to the High Court, he can set out his grounds for decision at that time. If that were so, the Magistrate would merely pass a cryptic order by saying the complaint is dismissed, or accused is acquitted or convicted, as the case may be, and then at leisure, if record is required to be sent, he can try to reconsider the case and set out his reasons for passing that order. Nor does this provision say that the High Court shall call for any such statement. If there existed any reasons in the order, he may summarise the same and send in a statement form as done by all the Magistrates, when record of cases from their Courts are called for under Section 435 of the Civil Procedure Code. The learned Magistrate has not submitted any such statement setting forth the grounds of his decision or order when the record was called for by this Court under Section 435 of the Civil Procedure Code, and the order disclose, none as already set out hereabove. There does not arise, therefore, any question for consideration of any such statement before setting arise the order passed by the learned Magistrate, and to say that this Court should call for is not warranted by any provision of law. There is no substance whatever in that contention, and it is not that the reasons were there and the statement has remained to be sent to this Court, that the argument may have some consideration. It is therefore, plain that the order passed under Section 203 by the learned Magistrate is an contravention of a mandatory requirement of having to give reasons for the order, and such a breach of the provision renders the order void and ineffective. It is not curable under Section 537 of the Civil Procedure Code.

(6) In the result, the order passed by the learned Magistrate dismissing the complaint of the petitioner under Section 203 of the Civil Procedure Code is set aside. The case shall be sent back to the Chief City Magistrate for being placed before any other Magistrate for proceeding further form the stage where it stands in accordance with law.

(7) Case remanded.