Sen, J.:—

These are two applications in revision, the first against an order made on June 3, 1943, by the First Class Magistrate, Bulsar, permitting the Police Prosecutor under s. 495 of the Criminal Procedure Code, 1898, to withdraw the case filed by the petitioner-complainant against six accused under ss. 452, 323, 504, 147 and 149, Indian Penal Code, 1860, and discharging the said accused, and the second against an order made on July 26, 1943, by the same Magistrate dismissing under s. 203 of the Criminal Procedure Code a subsequent complaint made by the petitioner on the same facts.

The petitioner made a complaint to the police on February 16, 1943, alleging that the offences had taken place on February 12, 1943. On February 17, 1943, the opponents filed a cross-complaint against the complainant and some others. After investigation the police filed a charge-sheet against the accused in the first complaint on February 24, 1943, and the learned Magistrate took cognizance of the said offences. Thereafter it seems that the District Superintendent of Police thought that further investigation was necessary and after such investigation had been made the said officer appears to have moved the District Magistrate who ordered the withdrawal of the case against the accused. On May 20, 1943, the Police Prosecutor who was in charge of the prosecution stated in Court that the District Magistrate had ordered the withdrawal of the case and he asked for the Court's permission for such withdrawal. The Magistrate passed the following order on June 3, 1943:

“The case is permitted to be withdrawn and the accused are discharged under s. 494, Criminal Procedure Code. The muddamal should be destroyed under s. 517, Criminal Procedure Code.”

On June 10, 1943, the petitioner filed a complaint in Court on the same facts. The complaint was duly verified on July 26, and on the same day the learned Magistrate made an order stating that though “the incident did take place” between the parties the police case had already been permitted to be withdrawn, and as the fresh complaint was based on the same facts as alleged before, the Court saw no grounds to proceed with the complaint, and the complaint was accordingly dismissed under s. 203 of the Criminal Procedure Code. The applicant filed criminal revision applications against the order made in both the cases and both the applications were dismissed.

Mr. Jahagirdar on behalf of the applicant has contended that the order passed in the first case was not a judicial order as no reasons have been stated therein, the legitimate inference to be drawn from the order being that the learned Magistrate did not apply his mind to the facts of the case. He has relied on certain decisions of the Calcutta High Court and contended that before a proper order under s. 494 or s. 495 could be made, the Court must record its reasons in order that the High Court might be in a position to say whether the discretion vested in the Court had been properly exercised. As against the said decisions, Rajani Kanta v. Idris, Thakur, etc., there are decisions of the Madras and Patna High Courts to the contrary that the Court is not bound to give any reasons for its action under ss. 494 and 495. Mr. Jahagirdar, however, has not pressed the application for revision No. 35 and has argued the second application No. 26 on the ground that even assuming that the learned Magistrate's order under s. 495 was correct, the order subsequently made under s. 203 deserves to be set aside. His contention is that it being incumbent under s. 205 on the Court to record reasons “briefly”, the kind of reasons which the learned Magistrate has relied on in dismissing the second complaint cannot properly be regarded as reasons such as the section requires the Magistrate to record. The section enables the Magistrate before whom a complaint is made or to whom it has been referred to dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under s. 202, there is in his judgment no sufficient ground for proceeding; and it is further laid down that in such case the Magistrate shall briefly record his reasons for so doing. The provisions of this section are clearly imperative, and failure to record reasons would be disobedience of the law and not a mere irregularity. The learned Magistrate in his order, though he states that “the incident did take place” between the parties, merely refers to the order made under s. 495 (though he refers to s. 494) and states that as the complaint before him was based on the same facts the Court sees no grounds to proceed with the complaint. These may be regarded technically as reasons for the order, but the question that arises is whether the learned Magistrate applied his mind to the facts of this case before he made this order.

It has been contended, however, by Mr. Thakor on behalf of the accused that if the first order made on June 3, 1943, is assumed to be correct, in view of the words in s. 494 that the Public Prosecutor may withdraw from the prosecution with the consent of the Court, which would apply also to the withdrawal of a case under s. 495 (the Police Prosecutor being substituted for the Public Prosecutor), it must be presumed that the Court in giving its consent exercised its discretion in a judicial manner, i.e, it was satisfied that there was a case for withdrawal, and the Court must, therefore, at that stage be presumed to have applied its mind to the facts of the case. Thereafter if in the second complaint no fresh facts were revealed, it is contended that no further grounds are necessary for the dismissal of that complaint. He has relied in this connection on In re Malayil Kottayil Koyassan Kutty, where in a case in which the circumstances were similar to those in the present case, it was held that where a police case had been disposed of under s. 494 or 495, unless very strong grounds were shown, i.e for instance, new facts were discovered which were not within the knowledge of the prosecution when the first charge was brought, a person who had once been discharged ought not to be harassed on the same charge. Mr. Thakor has also urged that even the second prosecution could in law be withdrawn by the Public Prosecutor or the Police Prosecutor, as in all cognizable cases it was the Crown who was the custodian of the prosecution. In support of this proposition he has relied on certain remarks made in Queen Empress v. Murarji Gokuldas. He has, therefore, contended that the mere ground that a fresh complaint has been privately lodged by the petitioner on the same facts as the police prosecution had been based on would not be a sufficient ground for proceeding with the complaint. We may at once say that we do not agree with the contention that in the second case the Public Prosecutor or the Police Prosecutor could have withdrawn from the prosecution. The remarks that Mr. Thakor has relied on in Queen Empress v. Murarji Gokuldas appear to have been made with reference to cases in which the prosecution is conducted by the Public Prosecutor. The words “any Public Prosecutor may withdraw from the prosecution” in s. 494 clearly imply that the prosecution referred to must be one which is already being conducted by the Public Prosecutor; and it seems clear to us that unless the Public Prosecutor is already in charge of the prosecution, he cannot withdraw from it, and that the Public Prosecutor was here not in charge of the second prosecution. The order made on June 3, 1943, does not, on the face of it, show that the learned Magistrate applied his mind to the facts of the case. It may, however, be that on oral inquiry from the Police Prosecutor he was satisfied that was a case in which he ought to allow withdrawal. If, however, he did not apply his mind to the facts, then clearly it cannot be said that when he came to make a second order on July 26, 1943, he was satisfied that there was no ground for proceeding with the complaint, as the only facts mentioned by him are that there had been a previous withdrawal of the police case and that there were no new facts in the second complaint. But if the learned Magistrate had considered the facts when he made the earlier order, there is nothing in the order of discharge under s. 203 to show that at an earlier stage he had applied his mind to the facts of the case. It seems to us that in order to comply with the mandatory provisions of s. 203 the learned Magistrate must make it apparent in his order that he has not omitted to apply his mind to the facts before he made the order. The wordings of s. 494 and s. 203 are quite different. In one case the Party interested in the prosecution, viz. the Crown, is unwilling to proceed with the case and the main responsibility for not proceeding with the case would seem to rest on the Crown itself. The language of s. 494 does not require any reasons to be recorded by the Magistrate as s. 203 does. Under s. 203 the recording of reasons is expressly provided for, and the failure to record reasons would clearly be a contravention of the law. The responsibility for making an order under s. 203, again, rests solely on the Court.

In the present case, i.e the prosecution launched by the complainant, the Court seems to have taken the view that the incident complained of “did take place” and the complaint was duly verified and the verification did not disclose that the complaint was false. There is, besides, a counter-case which, it seems, is being proceeded with. In these circumstances it does not appear that it could be said prima facie that there was no ground for proceeding with the complaint. We must, accordingly, hold that it has not been shown that in passing the order complained of in revision application No. 26 the learned Magistrate applied his mind to the facts of the case, and that, therefore, the order made was not sufficient compliance with the provisions of s. 203.

The rule in that application will, therefore, be made absolute and the order of the learned Magistrate set aside. He will proceed with the complaint as required by law. We make no order on revision application No. 25 of 1944.

Rule made absolute.

J.G.R